Lean into Joy (with Prof. Jessica Henry) | Crooked Media
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September 14, 2021
Pod Save The People
Lean into Joy (with Prof. Jessica Henry)

In This Episode

DeRay, Kaya, Sam, and De’Ara cover the underreported news of the week, including rural schools, suicide rates, Black Film Archives, and Portland’s vaccine mandate. DeRay interviews Prof. Jessica S. Henry (author of “Smoke But No Fire: Convicting the Innocent of Crimes that Never Happened”) about no-crime wrongful convictions.



DERAY MCKESSON: Hey, this is DeRay. Welcome to Pod Save the People. In this episode, it’s me, Sam, Kaya, and De’Ara talking about all the news that you don’t know from the week before. Then I sit down and talk with Professor Jessica Henry to discuss no-crime convictions in America. 

Yes, you heard it– no-crime convictions. I was like, what is a no-crime conviction? Same question I had. 

My advice for this week is to appreciate the people around you. I have so many incredible friends. Shout out to Cleo Wade It is Cleo’s birthday this week. So if you know Cleo– we love Cleo. Shout out to Cleo. She’s the best. Send her some love. 

I’ve been so blessed to have so many incredible friends. We’ve been hanging out. And just tell the people you love them. I know I’ve said that before, but please tell people you appreciate them and love them. 

Show up for people when they have hard days. Send people care packages, send people notes. Do some sidewalk chalk on the sidewalk, all the things that you were told adults don’t do anymore. You should live a little, loosen up and lean into the joy. Let’s go. 

KAYA HENDERSON: Hello, Pod Save the People family. Welcome to another week, another episode. We’re so excited to be here. I’m Kaya Henderson at Henderson Kaya on Twitter. 

SAM SINYANGWE: And I’m Sam Sinyangwe at samswey on Twitter. 

DERAY MCKESSON: And this is DeRay at Deray on Twitter. 

KAYA HENDERSON: We’re missing De’Ara this week. But she’s got great news, and we’re going to hear from her shortly. And in the meantime, I guess I wanted to start the conversation talking about President Biden’s vaccine mandates. Have you fellows heard a little bit about what Biden is proposing? And I’m sort of wondering what you think about it. 

DERAY MCKESSON: I did hear, and let me tell you the thing that I’m most interested– so I want to hear what you all have to say about the mandate. But the thing that I was most interested in is that Pfizer and Biointech said that they will be looking for clearance for a vaccine involving 5 to 11-year-olds in October. That will be a game changer. 

My sister’s a principal, and they are literally on rolling quarantine. It’s like one kid gets COVID or– it’s a whole thing. And the idea that 5 to 11-year-olds– that’s going to change people’s access to school. And Kaya, I’m sure you probably hear these stories too. I know a lot of principals and teachers where this is so disruptive, like the quarantine, the teacher got– this whole cycle, because kids can’t get vaccinated has been disruptive for daycare and all this stuff. So with the vaccine mandate for adults and a kid vaccine rolling out, I think that it’s going to be– we might see some sort of normalcy for the first time, which I’m pumped about. 

SAM SINYANGWE: It’s definitely cool opening up the vaccine to more groups having access. Because now it’s a– and I think Biden said this in the announcement, that the vaccine has been available for a while, it’s been made free, it’s been made more accessible than, obviously, it had been before. There should not be an excuse. You should be able to get the vaccine if you want the vaccine by now. 

And when you see the data, it is sort of sad when you see in the beginning, the US was a leader in vaccination rates in terms of rolling them out. Now it has dropped behind other countries. And even when you look at the G7, which is, they usually compare the US to the G7 countries, which are mostly European countries and Japan, and you see that the US has now lagged behind all of the other countries on that list in terms of vaccination rates. 

So there is the hurdle of making the vaccines available, which clearly, they’re more available now than they were before. But then there’s also the challenge of how do you actually– for people who have been vaccine hesitant or just anti-vax, trying to get folks to take the vaccine, trying to convince folks, and seeing, is the employer mandate going to work? Will changing the incentives and changing the cost of not being vaccinated, will that lead to higher vaccination rates? But something has to work, clearly, because the numbers haven’t shifted as rapidly, especially nowadays, as they had in the early stages of the vaccine rollout. And if we still have a lot of people who are unvaccinated, COVID is not going anywhere. 

KAYA HENDERSON: I think what’s interesting about Biden’s mandates are, it is the government or this administration really putting its foot down and saying, this is how we’re going to beat the pandemic, leaving this up to individual states to decide what they are going to do. Or even this whole conversation about individual rights versus the collective public health to me seems like a misplaced conversation. And in every other country where you are seeing effective fighting of the pandemic, it’s because mandates are in place. 

I was watching Meet the Press this morning, and Doris Kearns Goodwin, the presidential historian, was talking about the fact that George Washington mandated that all of his troops get the smallpox vaccine. And his rationale was smallpox would actually be worse than the sword of an enemy, right? In fact, the smallpox will take us out before our enemy does. 

And I think there is a role and a responsibility for the government to play in issues of public health. This is just what you have to do. It’s not optional. If we are going to beat this pandemic and save lives, then we have to muscle up and demand that people get vaccinated. 

I also think what’s interesting is this is going to start to hit people in the pocketbook, because if you are not vaccinated, and you have to test regularly, you’re starting to see companies ask for– and I think this is true of the federal government too– people to pay for the cost of their testing weekly. And so I think that will make some folks who’ve been reluctant jump into this vaccination game. It’ll be interesting to see, states are already pushing back and filing court cases, but I think it’s a power move by the government to keep us safe. 

SAM SINYANGWE: So along those lines, one of the groups that has been most vehemently opposed to vaccine mandates have been the police, especially the police unions. So the Fraternal Order of the Police, the nation’s largest police union, has come out against vaccine mandates. They don’t want officers to be required to be vaccinated, even though the police are the city employees who have the most close contact with the public, therefore have the highest risk of transmitting or contracting the virus if they’re not vaccinated. 

Despite that, police unions have been opposed to the vaccine mandate, and we’re seeing in some cities the police unions are successfully advocating for police to be exempted from these incoming vaccine mandates for public sector employees. And so there are a couple of cities now– Kaya, you mentioned the cost of having to get yourself tested every single week if you’re not vaccinated. Well, in New York City, there was a big announcement that the NYPD is now going to have a vaccine mandate. They’re going to be required to get vaccinated or get weekly tests. 

But then a subsequent release clarified that the burden of getting tested and paying for those tests is actually not on the police, that the City will cover the amount of time that the police go to get tested every single week, will cover their pay during that period– more resources for the police, especially those who don’t want to get vaccinated. Now, from New York City, we’re seeing in Portland even worse, where the police unions have successfully advocated to exempt the police force from the vaccine mandate entirely. 

Now, this is sort of an ongoing situation. It was just announced by the mayor, Mayor Wheeler, that the police were going to be exempt. And the mayor’s office cited an obscure state mandate that they say is about health care workers, and therefore does not cover the police, even though the police, again, have a lot of contact with the public, are often called into health scenarios, mental health care issues, substance use issues, et cetera, still have close contact with the public. And nevertheless, according to their city attorney, the police are exempt from the vaccine mandate, despite the fact that other workers will have to get vaccinated. 

So this is ongoing. City by city we’re seeing different approaches taken. But we know that the more that police are continuing to go out and arrest people, stop people, as they are doing, they are potentially exposing folks to and contributing to the spread of COVID, especially if they’re not vaccinated. And the police unions don’t seem to be so interested in protecting public safety when it comes to mitigating the spread of COVID as per what they’re advocating for. 

The final thing here that is also interesting is that despite all of this resistance to getting vaccinated, to having to pay to get tested every single week, et cetera, on the part of the police, COVID is the number one killer of the police two years running. So this year alone, 57% of all officers who’ve died in the line of duty have died from COVID– 57%. And in some states like Florida, it is even higher. It’s 2/3 of the officers who’ve died this year. 

So COVID continues to be the number one threat to the lives of the police, but the police unions are out here advocating for officers not to get vaccinated if they don’t want to and not to even have to pay for getting tested if they choose not to be vaccinated. 

DERAY MCKESSON: This is so interesting. So Portland, we’ve had our own issues in Portland with the city attorney’s office around the police union and stuff. It just is really weird, because the police so obviously work in public. This isn’t even like a, oh, do they sort of work in public? I don’t know. 

It’s like, all they do is interact with the public. This is what they do. They won’t wear masks, they won’t get vaccinated. And who are they around more than not? Poor people and Black and Brown people. That’s it. 

So when I clicked on the link that was the guidance from the Oregon Health Authority, it literally says, are police who have some medical training or are licensed health care providers covered under the rule? It says, probably not. But then it goes on to say, if a police officer has a job that by definition requires them to provide medical care to individuals, then the rule likely does apply. 

The police do have an obligation to help people. This is like a whole part of their job. And the mayor could be tough and just say, get vaccinated. If they sue us, we fight it out in court, but this is the right thing for public health. 

And he just will not do it. And you think about it, he’ll be fine. But you think about all the lives that will be endangered in Portland because people are just afraid to stand up to the police. It is wild, and this is not the only city where this is happening, but definitely one of the most egregious. 

DERAY MCKESSON: Don’t go anywhere. More Pod to the People is coming. Pod to the People is brought to you by Concern Worldwide. Concern Worldwide is on a mission to end extreme poverty, whatever it takes. In fact, they’re so willing to go so far to reach their goal that they’re calling out the corporations, governments, and billionaires who could end extreme poverty, but haven’t. 

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SAM SINYANGWE: With over 700 million people struggling to survive on less than $1.90 a day, the situation is dire. That’s how your help is needed now. Until the #Unfortunately Fake News is real, please donate. Visit ConcernUSA.Org. 

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KAYA HENDERSON: My news this week is about rural schools. It comes out of New York Times, and it is a really detailed profile and portrayal of a school district called Holmes County, or actually Holmes and Durant, which merged, in the state of Mississippi. And it paints a picture by taking us through the life of a young man, Ellington, who is a high school senior and literally tracing his high school freshman year through his senior year in high school, chronicling the state of schools in this rural community. 

And what most people don’t know is that about 9.3 million children in the United States attend a rural school. That’s nearly a fifth of the country’s public school students. And it’s more than the nation’s biggest urban districts combined. 

And these schools are facing incredible, incredible difficulties. We talk a lot about what’s not right in urban schools, but not many people are paying attention to rural schools. There is every single issue that is facing our education system broadly, but they are magnified in rural schools, so everything from the inability to get and keep teachers– I’m not even saying good teachers, certified teachers. 

So you have classes that are untaught. You have folks who don’t have textbooks. There are no clubs. There aren’t– I mean, these rural schools and school districts have a hard row to hoe. And what is interesting about this particular story is it talks about state interventions, where the state– because this district has been a failing district for decades, not just for Ellington, for his mother, for the superintendent who tries to come in to turn it around. 

For decades this place has been failing. It’s rated a D or F on the State’s report card. And the State does things like consolidate it with another poor district, because two failing districts coming together that are under-resourced are going to turn something around? Not exactly. 

And so nobody is surprised when a few years later, a few superintendents later, a few generations lost later, this district is in the same situation. And the State of Mississippi decides to intervene again to take it over. And State takeovers are notoriously unsuccessful and ineffective. 

And you’re just reading this piece and touching the people, from the superintendents who are brought in to save it to the teachers to Ellington and his two younger brothers, you’re just brought into the despair and the lack of hope that’s happening in rural schools. And I think the pandemic has worsened this, what was already an untenable situation. And we have an opportunity to turn it around, because in cases like these rural school districts, money actually will help. 

And so Mississippi is slated to get some $2.5 billion from the federal government, and Holmes is likely to get 29 million of it, if I remember correctly. And you can build buildings, you can hire bus drivers, you can get teachers, you can have clubs, and nobody is particularly hopeful that this thing is going to change. People don’t pay a lot of attention at the federal level to rural schools. 

There’s an assistant secretary for rural schools who weighs in on this article. And it just I brought it to the pod, because I think we don’t think about the millions of kids who are in rural schools. And these kids, literally, from Wi-Fi connectivity to literally no teachers in the classroom, are dying on the vine. 

And so I wanted us to remember rural kids. I want to advocate for rural kids. The assistant secretary was saying, as he looked at federal and state legislation around education, he counts the number of times he sees the word rural, and usually it’s only once or twice. 

And so if we are serious about education, we can’t just pay attention to our urban and our suburban kids. We’ve got a whole bunch of rural kids out there who really do not have any other options. And I wanted to bring that to the pod. 

SAM SINYANGWE: What’s wild about seeing these inequities between urban areas, suburban areas, and rural areas, in the space of education and so many of the other issues that we talk about, that we care about, is that it is so often the senators who ostensibly represent those states, or say they represent those states, who are blocking so many of those resources from coming through federally. So I think about the $3.5 trillion reconciliation bill, the infrastructure bill, which includes universal pre-K. It includes child care tax credits. 

It includes a whole bunch of supports, tuition-free community college for anybody who wants it, a whole bunch of money resources, infrastructure for communities across the country, but especially for rural communities, communities with the highest poverty rates, places like West Virginia, where you have Joe Manchin blocking that bill, not to mention all of the Republicans also representing more rural states, Southern states that are blocking those bills. 

What’s so wild politically is seeing, these are supposed to be your people, Joe Manchin. Why are you not using your one position to actually make sure that this bill passes? Instead, you’re blocking this, saying that we should cut from it, that we should be only passing what the Republicans want to pass, just incredibly watered down and small-scale compared to what the Democrats have proposed. 

So I think those are some of the political dynamics that are just so frustrating about some of these issues. Because we know that rural communities need broadband access. We know that rural communities need resources. And those resources are– so many of them are now on the table, but they’re being blocked by folks representing West Virginia, like Joe Manchin. And that is, if you are in West Virginia, push him to support this bill and just to use that position for good, because he has so much power to actually make sure that this passes. 

DERAY MCKESSON: So one of the things that this got me down the rabbit hole was in Idaho. So this Idaho Statesman newspaper has an article called “Rural Idaho is not ready for a great exit from public education as some are advocating.” And there’s a group called Ed-Exit, that is essentially working to completely abolish funding for public education and to push everybody to Christian schools as a response to CRT. 

And they are hoodwinking these parents, this idea that we should get rid of public or government-run schools in favor of home, private, and parochial schools, because that would be the best thing for them. And the disparities are already wild. We already can’t figure out how to scale it. 

And let’s be clear, even the best of the charter schools– it’s hard, even the best of the– it is a hard thing to do. And it’s a reminder that public education really is one of the true gifts of the American enterprise or the American system. And if anything, we should be investing more. 

Kaya, it was really surprising to read that the internet of the pandemic didn’t fix a lot. I would have been like, wow, you can get teachers anywhere now, you can da-da-da-da-da, and that that would have had a demonstrable impact in rural communities, because now teachers ostensibly don’t have to live in the neighborhood to teach. And that didn’t turn out to be the way that it worked. 

So I’m interested in the rural place, and just like Sam said, when you think about all the other things that essentially become lack of access in rural communities and what that does to kids– so I don’t know, I wish I had answers in this one. I think about in big cities, and Kaya, you know this as a superintendent, people barely want to be superintendents of the big cities now. 


DERAY MCKESSON: Who is trying to be the superintendent in the rural communities with less money and less resources? I don’t know. 

KAYA HENDERSON: It really is a huge issue, because these are cases where leadership matters. If there are opportunities, I think the superintendency is an incredibly hard job, and I loved every single day of it. And part of the reason why I loved it is because, while there are lots of rules and constraints, if you think creatively, there are ways to get around and through and over to where you need to be for kids. 

But it does take some enlightened leadership. It takes a community working together. It takes some things that most communities have. They just need the right set of people to come together and decide, this is what we’re going to do. And when for generations people have been trying and it hasn’t worked, people lose their spunk. But hopefully, this infusion of federal money might be the catalyst– may be the catalyst to help some of these rural places muster it up and try to do better for kids. 

SAM SINYANGWE: So my news– we’ve talked about this before, but my news is about suicide rates. There’s a newer study that just came out last week in the Journal of the American Academy of Child and Adolescent Psychiatry. And what they found is that just over 1,800 Black kids die by suicide between 2003 and 2017, and most of those deaths were boys, especially age 15 to 17. The gender gap is narrowing. 

So let me just go through the facts before I explain why I’m bringing this to the pod. They also go on to note that the suicide rate for girls increased in average of about 6.6% each year, more than twice the increase for boys. And nearly 40% of the girls were 12 to 14 years old, which just off the bat blew my mind. We don’t really hear about death by suicide, and I’ll talk about that in a minute. But I would not have guessed the 12- to 14-year-old range for girls is where the spike was. 

And what’s interesting is that, though the data shows that suicide rates for teenagers and young adults remain highest among boys, particularly white, Native American, and Alaskan, in the past years, the suicide rate amongst Black young people is actually increasing. A study in May found that the suicide rate for Black males aged 15- to 24-year-olds rose by 47% in between 2013 and 2019, and by 59% for Black women, or Black girls in the same age, and that same 15 to 24 years old, but a decrease for white youth. And I bring this up because the numbers blew my mind. And there’s another study this year that showed that over the last two decades, the biggest increase in self-reported suicide attempts was actually among Black adolescents. 

So I say this to say that I’m really torn. There are a lot of reasons why we don’t talk about suicide in public. There’s worry that it’ll lead to copycat. It’s worry that it’ll give people ideas that they might not have otherwise had. And what I realized in reading this is that flip side of that is that I don’t know if we’re all planning to sort of address the issue, because people don’t talk about it. 

And I had a young person in my life when I ran an after-school center who died by suicide when he was 12. And I at the time thought that this was an aber– it was an anomaly that doesn’t really happen. And I realized more and more that this happens way more frequently than people believe. 

When the researchers are trying to figure out what is the what, why is this happening, one of the things that they learned around girls is that a diagnosis of depression or anxiety was more common than in boys. And about 9% of the older girls experienced a relationship crisis before the suicide, and nearly 20% had an argument within 24 hours of their death. 

And you think about all the things that we could plant, like you think about conflict resolution, you think about relationship counseling, even for young kids who are– we have to acknowledge that it might not be a relationship with a capital R like we think, but it is a relationship in their life, and that means something, right? All these things that we should be planning for to help young people stay here longer. 

And the last thing that I had not– that just really blew my mind was a talk about why, in the Black community, suicides are increasing at this rate. And one of the doctors, Dr. Robinson, she introduces this notion that I had not heard of, indirect suicide, where adolescents are actually deliberately putting themselves in harm’s way, which is a different way to think about it than the traditional methods of suicide that we understand, but that people are actually making a series of choices that will end their life that might not be as immediate in the moment as some other methods, but leads to the same outcome. And again, I think about, I spent a career working with kids, and I don’t know one meeting we ever had, outside of the young person who was in my life in our program, where we even talked about this issue. 

DERAY MCKESSON: So this was wild, just looking into some of the data around this and realizing how far– just like in the criminal justice space, where we’re still waiting on nationwide data on crime and arrests that’s supposed to be reported at the end of this month for 2020. So that’s how far behind the criminal justice reporting is. It’s similar in the space of the CDC’s data around suicides. So there’s this huge question about, we see these trends of suicide rates increasing, particularly for Black youth. Over time, you notice that most of those studies, it stops at 2017, 2019. There’s not 2020 data. 

So in 2020, the CDC’s 2020 data has yet to be released, the nationwide data. They have preliminary data that they’ve released, which actually, surprisingly, shows that suicide rates went down versus 2019. So despite the pandemic, like all of the hardships and new challenges brought on by the pandemic, many people were saying that– researchers were speculating that suicide rates would increase, that folks would be having more depression, et cetera, et cetera. 

But the rates actually look like– the preliminary data says that they’ve gone down. We don’t have the full year’s data yet, so we don’t know for sure. But then there are researchers that have looked at more detailed data from particular states. So while we’re still waiting on the nationwide data to come in from the CDC for last year, let alone this year, we have some preliminary data that a researcher named Dr. Paul Nestadt at Johns Hopkins University looked at initial data from Maryland in the beginning months of the pandemic and found that while suicide rates were decreasing among white youth, they were actually increasing among Black youth during that period. 

So again, that’s data limited to Maryland. It’s just the beginning of the pandemic. Now we are well over a year into it, but that preliminary data suggests that there is a real problem that might actually be getting worse among Black youth and that we need more data to better understand this problem to understand those dynamics and how those trends are evolving over time and to better improve the interventions and our efforts to address those issues in real time. 

KAYA HENDERSON: Yeah, my news today is from Vulture. It’s about a Black film archive that was developed by a woman named Maya Cade. So essentially, she launched a website, a Black film archival website, which is pretty fabulous. And it basically covers films made from 1915 to 1979, and they’re available to stream. There’s descriptions on the side of what the films are. It numbers around about 250 films. 

And so I just found this to be so wonderful, because I remember growing up seeing Carmen Jones, seeing early Black films, and now knowing, because of my Maya Cade, that there were films way before then, and so kind of at the start at the film industry, essentially. And so I just found this to be so compelling. And I can’t wait to dig into this archive to see, to see different themes, to see different things to be inspired by, to see the brilliance of Blackness, and also just understanding what the political context was during the decades which these films were made. 

So I wanted to bring this to the pod. I thought it was super interesting, super needed, super timely, and I just think there’s a marketplace for it. So good luck to Maya Cade. I hope this really blows up. But it’s pretty dope. 

DERAY MCKESSON: Hey, you’re listening to Pod Save the People. Don’t go anywhere. There’s more to come. 

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Professor Jessica S. Henry spends her life examining wrongful convictions, severe sentences, and hate crimes, but especially no-crime convictions. I didn’t know what a no-crime conviction was. I reached out to her because I’d seen that she had written about it. 

She has a book about it. Get the book, get all of it. I learned so much. These are convictions where no crime occurred, but people spent time in jail. I had no clue about this stuff. I hope that you learn as much as I did. Let’s go. Professor Henry, thanks so much for making time to be on the pod today. 

JESSICA HENRY: Thank you so, so much for having me. 

DERAY MCKESSON: So I had a chance to read the book, and I’m heartbroken. I don’t know how I didn’t know this. I feel all the emotions. But before we talk about the meat of the book, can you tell us how you got into this work? What led you to being a professor? How did you stumble upon or search or a figure out or land in the world of wrongful convictions? 

JESSICA HENRY: So I was a public defender in New York City for about 10 years. I worked at the Bronx Defenders up in the Bronx and at the Office of the Appellate Defender in Manhattan. And so this subject, the subject of the criminal legal system, is something very near and dear to me, something I even studied back in college. I just find it fascinating and really important that we all know about it and think about it and do what we can to help people who are charged with and convicted of crimes. 

Then I had the opportunity to go into academia. And I’ve been a professor now for about 15 years in the Department of Justice Studies, and I get to continue to talk about all the things that matter to me about justice. And one of the courses that I developed was, of course, on wrongful convictions. And in the process of developing that course, I came upon this idea of people being wrongly convicted of crimes that did not happen. 

DERAY MCKESSON: Are you the person who coined the phrase, no-crime convictions? I didn’t even know they were a thing. Can you tell us, what did you find? I had the luxury of reading it, but what was the big finding? 

JESSICA HENRY: Well, first of all, I mean, just big picture here, right? Lots of people now know about wrongful convictions because of Making a Murderer, or maybe they caught Serial. And the idea that most people have in their heads is that an innocent person is wrongly convicted of a crime that was actually committed by someone else. 

What a no-crime wrongful conviction is, is that someone, an innocent person, is wrongly convicted of a crime that literally never happened. It just didn’t happen. And so that in and of itself is kind of mind blowing. 

I don’t know that I was the first person to coin the phrase, but I do think I’m the first person who took a deep dive into no-crime wrongful convictions. Because when I first saw this, I couldn’t get my head around it. It literally makes up one-third of all known exonerations. So one-third of all the people that we know of who’ve been wrongly convicted were convicted of crimes that never happened. 

DERAY MCKESSON: What’s an example of a no-crime conviction, and then how does that happen? 

JESSICA HENRY: I’ll give you two examples. One is Cameron Todd Willingham, who was convicted of an arson murder that involved his three children. And he was executed by the State of Texas for this arson. So he was found guilty of deliberately setting a fire that killed his family. And he had proclaimed his innocence from the start, all the way through his execution. But the fire scientist at trial was convinced that he, in fact, had set this fire. 

Years after his execution, fire scientists stepped in. And we looked at the fire science that had been used to convict him, and they said they got it wrong. So an example of a no-crime wrongful conviction in that case is an accidental or naturally-occurring fire that’s mislabeled an arson. 

A suicide could be mislabeled a homicide, or a baby could die from natural causes, but somebody mislabels it as a murder. And so all of these instances are no-crime wrongful convictions. That’s where an entity mislabels a naturally occurring event as a crime. 

But then you’ve got other situations. Maybe somebody brings a false accusation that’s believed and that ultimately results in a conviction. Or maybe the police plant evidence on an innocent suspect and get it to stick. And so we see lots of different origins or triggers for these no-crime wrongful convictions, but they result in the same outcome, which is an innocent person being wrongly convicted of a crime they didn’t commit. 

DERAY MCKESSON: You break the book up into these really tight sections so that people sort of get it and can understand. Can you explain the difference between an actual crime wrongful conviction and a no-crime and why the distinction? Why do you sort of tease it out in the book to help people see how no-crime wrongful convictions fit in the landscape of all wrongful convictions? Why is that an important distinction? 

JESSICA HENRY: An actual crime wrongful conviction is, as I mentioned just a minute ago, it’s where an innocent person is wrongly convicted of a crime committed by someone else, but the crime actually happened. And in our legal system, we have it set up that there is room for error. I mean, the prosecution has to prove its case beyond a reasonable doubt. That’s not beyond all doubt, right? That’s not 100% certainty. 

So we almost built into our system this possibility of error, of convicting an innocent person. And we look to the appellate courts, which do not a great job with it. But we look to the appellate courts to remedy those errors. 

And there’s a harm that occurs when a crime happens. And so we as a society want to find the person who commits this crime, and we want to hold them accountable. That’s the whole idea behind our criminal legal system. 

But when you think about a no-crime wrongful conviction, what we’re doing is we are charging an innocent person with a crime that never happened. And then we are expending tremendous time and energy and human capital and taxpayer dollars investigating and prosecuting and convicting and incarcerating people for crimes that literally never happened and that should never have been brought into the criminal justice system in the first place. And it’s an astonishing thing, because when the State steps in to hold somebody accountable for a crime, they have tremendous power. And they have to work overtime, quite frankly, in these no-crime cases, because there’s no evidence, because no crime actually occurred. 

DERAY MCKESSON: What are the numbers, and why do you think we’re undercounting them, if I read that correctly? 

JESSICA HENRY: So I use the National Registry of Exonerations as sort of the data source. And that is a wonderful website for those folks who might be interested in this subject. They’ve been collecting data about wrongful convictions, about known wrongful convictions, since 1989. 

And so about a third of all cases in that registry– actually, at this point, it’s over a third– involve no-crime cases. So that’s about 2,850 exonerations. I think the exact number is 2,856 known exonerations. And no-crime cases make up, as of this morning, 1,067, so it’s over a third. 

And it is a severe undercount for a lot of different reasons. Number one, we only know about the cases where someone who has been wrongly convicted and actually exonerated. And the exoneration process is incredibly difficult. 

So so many people are sitting in prison today who are innocent, who have not been able to prove their innocence. And so that’s part one. We just don’t know. We only know about the folks who’ve actually been able to get the system to clear them. 

The second thing is a lot of no-crime cases occur in the context of misdemeanor crimes, so low-level offenses like trespassing or maybe a drug possession or loitering. And folks don’t typically challenge those cases. So they get arrested and processed and prosecuted for a misdemeanor. 

And they’re often offered a plea deal, and they just take it, because they don’t want to go back to court. They don’t want the hassle. They don’t want the very real trauma of having to go back into court again and again to fight a misdemeanor charge. 

And maybe they don’t have child care. Maybe they can’t miss work. Maybe they have other responsibilities that would prevent them from coming in and fighting the case. And so in the context of misdemeanors, most people plead guilty and go home and never challenge the fact that they were wrongly charged in the first place. 

DERAY MCKESSON: Now, let’s go through the sections. You identify– so a quarter at the beginning is sort of saying, here’s what is happening. And then you walk through how we even got to a place like this. One of the first sections is about forensic error. 

I am obsessed with forensics, because I’ve been dealing with the case in Baltimore where I’m like, the firearms people are phoning this in. They literally are making it up. I don’t even know how we’re still– how is this even a case when the firearms guy literally says on the stand that he eyeballed it, no measurement, no whatever, and yet this man is still in jail. Can you talk about why forensic error is such an issue here, and what can we do about it. 

JESSICA HENRY: Yeah, so forensic science– people have grown up with CSI, and they really believe that the high-tech labs are doing this really fancy testing and coming up with these conclusive outcomes, and that’s just not true. There was a big report that we call the PCAST Report that showed just how bad what we call forensic science is, how unreliable it is. The only thing that they say is really reliable is DNA evidence, and even that has some issues. DNA can be transferred, it can be contaminated, it can be planted. 

But outside of DNA, a lot of forensic science just is not reliable and accurate the way we think it is. And yet, it is the foundation for so many convictions. And so I’ll give you just a couple of examples– bite mark evidence, for instance, where a forensic odontologist will testify that, yeah, this injury was caused by a bite mark. And then they go on to say that they can match a bite mark on a person to the teeth imprint of a defendant. 

Now, you can’t do that. That’s not possible. And yet, as I discuss in my book, there were a number of people who were wrongly convicted based on forensic odontologist testimony or shaken baby syndrome. This was a syndrome that was believed to occur when an infant is shaken so hard that the brain kind of moves inside the skull and can cause potentially lethal damage. 

And the way that experts would talk about it, they’d say, look, this baby had what’s called the triad of symptoms. There would be brain swelling, brain hemorrhaging, and then hemorrhaging in the retinal area. And if those three symptoms were there, the triad was there, the baby must have been injured by whoever had last been in the baby’s presence, and that was it. So an expert would come up, they’d say, oh, I see the triad. John Smith was the person last in the baby’s care, and therefore, John Smith must have caused this damage that caused the baby to die or be severely injured. 

Science today demonstrates that shaken baby syndrome is probably just wrong. There’s real questions about whether a person could ever shake a baby with the level of force needed to actually cause that kind of injury. And yet, there are people who are still incarcerated on the theory of shaken baby syndrome. 

A really recent exoneration involved with Leevester Brown. He was sentenced to life without parole, and he was going to spend the rest of his life for murdering his six-month-old baby. Now pause on that for a minute. Can you imagine, as a parent, your child has just died, and instead of being allowed to grieve that raw, devastating grief, you are charged with murder? And no one’s listening to you say you didn’t do anything, because there’s some expert in there saying, oh no, there’s this triad of symptoms, and therefore you must have. We see the role of forensics time and again stepping in and providing evidence that is unreliable, but very believable to a jury. 

DERAY MCKESSON: Unreliable but very believable is quite a phrase. I didn’t know that shaken baby syndrome wasn’t real. I honestly didn’t know that till you. I’d heard about bite marks before. 

JESSICA HENRY: Yeah. No, there’s been a lot of studies that have really cast questions about shaken baby syndrome. And so one of the recommendations has been, listen, if your best and sort of only evidence is an expert talking about shaken baby syndrome, you should not be bringing this case. Because it really is highly questionable and has been abused and resulted in a number of wrongful convictions. 

DERAY MCKESSON: What about false accusations? 

JESSICA HENRY: I struggled with how to frame this, because on the one hand, we know, we know that so many people who have been assaulted, who go and talk to the police about sexual assault or rape, are not believed. And they look for secondary trauma in their interactions with the police, because they are treated as though they’re making something up. And so I do want to acknowledge that at lot of times people who come in to report are not believed. 

And yet, there are people who make false accusations, and that can be– so I’ll give you an example. In the context of a child custody battle, you sometimes see one of the partners accusing the other of abusing their child in order to get custody. And that sounds awful. It is awful. And yet it happens. So that’s an example about false accusations. 

We also saw, kind of more famously, in the ’70s and ’80s, these crazy stories of mass child sex abuse, the child abuse hysteria cases. And you can actually go all the way back in time. When you want to look at the Salem Witch Trials, I mean, in some ways those were the first no-crime wrongful convictions. The girls there were accused of witchcraft, and they were executed for it. 

Today, you had people– there’s this crazy story down in Texas. This couple, Francis and Dan Keller, they ran a daycare center, and they were accused of the most astonishing crimes you could imagine. They apparently were running this daycare center out of their house. But they were accused of dismembering babies in front of the children in their care, of killing animals, of bringing the children to Mexico so that they could be sexually abused, all kinds of unbelievable stories. 

And it would be funny, sort of, if these accusations hadn’t been believed. And they were convicted. They were sentenced to 48 years in prison. They served over 20 of them, and they were finally exonerated when it came to light that these accusations had been false. 

DERAY MCKESSON: That is wild. 

JESSICA HENRY: It’s one of those stories I just don’t understand. They were accused of mutilating a gorilla at a local park. So there was no gorilla at the park. I just don’t understand how somebody didn’t take a big step back and say, something’s gone wrong here. We’ve gone off the rails. And yet, they were convicted. 

And there were a number of people. In New Jersey where I live, Michelle Michaels was exonerated. She had been sentenced to 48 years in prison, because she was also accused of stabbing children with plastic utensils and making them play duck duck goose while they were naked. It was crazy, and none of it happened. It was all false. And so false accusations are definitely a source of no-crime wrongful convictions. 

DERAY MCKESSON: There are so many things that we should be fighting about, right? 

JESSICA HENRY: Absolutely 

DERAY MCKESSON: And it’s like, who is coming in, and the Innocence Project normally only does– you’re convicted by the time the Innocence Project gets involved. 

JESSICA HENRY: That’s right. 

DERAY MCKESSON: So who’s helping you in the middle of the case, or who’s helping you fight this stuff when you’re like, I didn’t do it! This is so wild! 

JESSICA HENRY: So that goes back to defense lawyers and how we view the whole criminal legal system. So many of the people– not all the people, but so many of the people who are brought into the criminal legal system are poor, and they’re often poor people of color. And they are assigned defense lawyers who are often– even the most dedicated, diligent defense lawyer who is working in a public defender’s office is overworked and under-resourced. And they’re doing the best they can with the resources given to them, but there’s not enough resources given to them. 

And so you often have people falling through the cracks. And big picture, again, just to take a step back, 95% of all criminal cases– something like that, depending on– 94%, 95%, 96% of all criminal cases are resolved by plea bargain. Innocent people plead guilty. They plead guilty far more often than anyone can even imagine. And they do that because the risk of going to trial and the possible sentences at the other end are just so overwhelming, they often plead guilty. 

So we’re talking about a very small fraction of criminal cases where someone’s actually challenging the charges saying, hey, I did not do this. And then there’s a huge imbalance. The prosecutor’s office has all of the resources. They’ve got the police working double time. 

They’ve got better access to the forensic scientists, who are supposed to be neutral and objective and not affiliated with the prosecutor’s office, but who often see themselves as part of the prosecution team. And instead of making sure that the defense side has access to similar resources or to experts who can help counter some of these allegations, you have a single defense lawyer doing what they can without the same supports. 

And so you raise such an important question. It’s such a huge problem in our legal system. Not enough people are there to stand up for the defendant. When I was a public defender, which was a job I truly loved, I knew I was the only person in a packed courtroom that cared about what happened to my client– that’s it. 

Maybe his family and friends, and I’m using the “he,” because it’s mostly men– maybe his family and friends were there, and they cared. But it was me, me versus everybody in the whole courtroom. So it’s an overwhelming responsibility, and it’s a tough one, particularly in cases that are complex and involve things that require experts and additional investigation and funding. 

DERAY MCKESSON: Can you talk about how the police are involved in wrongful convictions, especially no-crime wrongful convictions? 

JESSICA HENRY: The police are involved in no-crime wrongful convictions in a number of different ways. One is actual, deliberate police misconduct, where they plant evidence to cover up their own bad behavior. And then the second track, if you will, is aggressive policing policies that result in the over-arrest and pursuit of, again, typically poor people and people of color. 

So starting with the misconduct, it’s kind of jaw dropping, but police have, and have for a very long time, gotten away with creating false crimes that never happened. And I’ll give you a small example, a really simple example that I talk about in my book. There was this guy named Wassily Gregory up in Alaska, in a little town in Alaska. And he gets arrested for resisting arrest. And he gets dragged into court that night, and he pleads guilty, and he goes home. 

And honestly, we never would have heard about this again, ever. It was just a case. And yet, there was a professor who was in the area doing anthropological research. What are the odds of that? And she saw the whole thing. And she was so offended by what had happened that she filed a report saying, Mr. Gregory was doing nothing but walking down the street when this cop came out of nowhere and threw them on the ground and beat him up and arrested him. 

And when the police responded to this complaint, they found a video recording from a security camera from across the street. And sure enough, Mr. Gregory had done nothing wrong. And so he was exonerated from this resisting arrest charge that he had pled guilty to. But that’s just a great example. This officer just invented this allegation that Mr. Gregory had been resisting arrest when he hadn’t. 

And there are a number of large-scale scandals where, in Chicago– this is a heartbreaking story– there were these officers assigned to protect and police in this low-income housing community called Ida B. Wells Housing Community in Chicago. And they, instead of protecting them, literally ran a shakedown scheme, where they went to the residents and said, hey, you better give me some money, or I’m going to charge you with drug offenses. 

And these folks had no money to spare. But those who didn’t pay were, in fact, charged with drug crimes. And the officers would plant drugs on them. And folks often pled guilty, because the potential consequences were so dire. Maybe they had a prior criminal record. And it wasn’t until a federal sting operation captured this officer that the whole scandal was revealed. And in the meantime, who knows how many people were wrongly convicted of crimes invented by the police for their own benefit? 

The misconduct piece is something that is shocking, or should be shocking. I mean, for folks who’ve been in the criminal legal system for a long time, we know what happens. We know it happens far more frequently, perhaps, than we imagine. But that’s part, sort of one track of that, the misconduct part. 

And then there is the aggressive policing policies. So here I’m talking about, for instance, broken windows policing. When I was in the Bronx, there was a really aggressive push to go after people for trespassing. And so the police had permission to enter all these different buildings in the Bronx. And they would go in, and they would arrest anybody in the lobby. 

Trespassing is when you are unlawfully on the premises. You’re not allowed to be somewhere, and you are. And these folks would be visiting their aunt or their sister or going down to the lobby to get their mail without an ID– I’m not kidding– in their own building. And they would get arrested for trespassing. 

And they would be brought to the precinct. They’d be booked, they’d be charged. They’d be sitting in their cell in the back waiting for arraignment. And by the time I got to them, they were just ready to plead guilty, and they almost always did, almost always did. And these were, by and away, poor people and people of color. 

And it was heartbreaking to see the effect of these policing policies, because, yeah, it was just trespass, and yeah, it was just a misdemeanor. But it still has tremendous consequences for people, tremendous consequences that they carry with them for their lives. And so sometimes you see these aggressive policing policies resulting in no-crime wrongful convictions. 

DERAY MCKESSON: Well, we appreciate you, consider you a friend of the pod, and can’t wait to have you back. 

JESSICA HENRY: Thank you so much. I love your show, and I am honored to be a part of it. 

DERAY MCKESSON: Well, that’s it. Thanks so much for tuning in to Pod Save the People this week. Tell your friends to check it out. Make sure to you rate it wherever you get your podcasts, whether it’s Apple Podcasts or somewhere else. And we’ll see you next week. 

Pod Save the People is a production of Crooked Media. It’s produced by Brock Wilbur and mixed by Bill Lands. Our executive producers are Jessica Cordova Cramer and myself. Special thanks to our weekly contributors, Kaya Henderson, De’Ara Balenger, and Sam Sinyangwe.