Mark Godsey, Co-Founder of the Ohio Innocence Project (OIP)

Mark Godsey

February 10th, 2022

Mark Godsey

Co-Founder of the Ohio Innocence Project (OIP)

co-interviewed by David Garyan and Arthur Ovanesian

DG & AO: You were trained and worked extensively as a prosecutor before co-founding the Ohio Innocence Project (OIP), an organization which aims to exonerate wrongfully convicted individuals. What led to this change and how did your understanding of the methods employed by prosecutors ultimately help you become a better defender of those incarcerated unjustly?

MG: I was a prosecutor and I developed very much a prosecutor’s mentality. I then became a law professor, starting at a different university than where I am now. That law school had an innocence project, and the Dean came to me on my first day of work and said: "The professor who runs the innocence project is on Sabbatical this year. Since you’re new and you have this criminal investigation background, I want you to supervise this innocence project." I was very skeptical—I didn’t think there were innocent people in prison, but I really couldn’t say no because I’m starting this new job, and this is a request from my boss. So I went to the first meeting and they were discussing this man named Herman May—the students had gone to visit him in prison. They were convinced that he was innocent and wrongfully convicted. They were very emotional about it. I asked them about the case, and I was sort of doing internal eye-rolls—these students are silly; this guy is totally guilty; they’re very gullible and naïve. Then DNA testing ended up proving him innocent. And so once he got out of prison, I met him and could see his humanity, I became very ashamed at how I had behaved. It was an eye-opening experience for me—I was in denial about problems in the system. From there, I just continued that entire year because I had to run the innocence project. So I went to conferences and I met other people who’d been exonerated and lawyers who do this work. By the end of the year, I realized that I had been part of a system that has many flaws and everybody in the system is in denial about that, so I became a believer in reform. The next year I got a job at the University of Cincinnati, which is my hometown, and Ohio was the largest state that did not have an innocence project, so I founded it there in 2003, because of that experience I had at the other law school.

DG & AO: Your latest book, Blind Injustice: A Former Prosecutor Exposes the Psychology and Politics of Wrongful Conviction, offers excellent insights into how witnesses are “coached” to “remember” things that didn’t actually happen. Although increasingly sophisticated technology has been instrumental in reducing the number of wrongfully convicted individuals—

MG: I wouldn’t say—I don’t think it’s been reduced that much because the vast majority of cases don’t have DNA testing .... DNA testing can give you clear answers, but if somebody walked down the street—you’re on a balcony right now—and shot you, there’s no DNA around the perpetrator at the scene, and, in fact, ninety percent of cases don’t have DNA.

DG & AO: It’s certainly an exaggeration, then, to say that technology, such as DNA testing, which is now available, is greatly reducing rates of wrongful conviction. Given this, I would also like to talk about the role of psychological manipulation, which is a problem that seems more difficult to solve. In this respect, can you talk about some of the steps being taken to ensure greater transparency before and during the trial—perhaps lessening the need for exoneration? Are things like this being done?

MG: Very little, very little. That’s the problem: When a system has been doing something the same way for decades, it’s very slow to change a large bureaucracy. One of the things we’ve realized is that human memory is much more malleable than most people think; it’s not a tape recorder that records things and spits them back. Your memory is always changing; it’s open to suggestion. I was trained as a prosecutor, and when witnesses were brought in and if they gave you a story you don’t like—let’s say the murder occurred at 11:00 pm and the witness comes in and says: “Oh, he was still with me at the bar at 11:00 pm—he didn’t leave until 11:30,” my job was to grill that person. I had to “test them” and help them “come to Jesus” because I know what happened—I wasn’t there but I’m trained to know what happened. And many times you get witnesses to change their story—they pick up that they must be wrong because of the way the police are asking the question. By the end of the interview you might get them to say: “Oh, yeah, now the more I think about it—I think he did leave at 10:30, at halftime, during the game, and he didn’t come back until midnight.” You get people to change when the police are really putting a lot of pressure and asking pointed questions. By the time witnesses testify in trial, they’ll just say: “Oh, yeah, I’m positive—he left at 10:30 and came back at midnight.” And you know, this sort of thing goes on all the time. When I was a prosecutor, I saw it all the time.

DG & AO: You’ve said that witnesses’ memories should be treated like crime scenes—their perimeters demarcated by metaphorical tape, firstly to prevent the mind from being contaminated, and secondly to keep false information from being “planted.” Indeed, this is a difficult task as memories aren’t tangible, visible entities like crime scenes. Can you speak briefly about some of the possible measures that could be taken to protect witnesses, and whether, perhaps, things like independent, external witness preparation courses—conducted by external, unbiased parties before the start of a trial—might help?

MG: The biggest problem is when a witness’s statement has changed because of the questioning and the change is not disclosed—nobody knows about it. The easiest thing to do—and we have the technology now—is to record everything, and that way the defense attorney can see: “Look, this person started off saying that they were still in the bar at 11 o’clock. And look at how they continue grilling and asking tough questions—they got the person to change their story.” That takes care of a lot of it. The fact-finder, the jury, or the judge can see how the testimony evolved. The biggest danger now is that such recording isn’t required, and so all we see is that the witness comes to trial and says: “Oh, yeah, the person left at 10:30 and came back at midnight,” and we don’t know that they changed their story, but if you require videotaping you would have a clear record of how the story changed, and it would also make police officers and interrogators know they’re being watched, so they would be more careful—just asking questions and not including the answers in the questions ... less leading questions. I think it’s okay to probe people’s memory: “Are you sure? Could it have been this? Could it have been that?” But the most important thing is having a record of it because then you can try to unwind it after the fact.

DG & AO: At what stage are we in this process? In other words, how close are we to implementing such measures?

MG: In the United States, at least, and in some countries, the interrogation of the suspect is now being recorded from beginning to end, and that’s very important—now you can see the record of how that happened and if they end up confessing, a lot of times you can see the pressure that was put on them, and that the actual story was suggested to them by the police through the questioning. But as far as just getting lay witnesses recorded, that’s not really happening in very many places.

DG & AO: In an ideal scenario, the truth would always come out in a trial; unfortunately, reality doesn’t always correspond with theory, and, as your book demonstrates, facts in a courtroom are rarely facts. If you were given the hypothetical option to have an organization like OIP, one that would be one hundred percent effective in exonerating all those wrongly convicted, would this represent a fulfillment of your work and vision, or is the ultimate goal of that work, in fact, further down the line—an attempt to reform the justice system as a whole?

MG: No, we want to reform the criminal justice system so wrongful convictions don’t happen. Now, they will always happen to some degree because anytime you have humans in charge, there’s going to be human error, but we have a dual mission: To get innocent people out of prison, but also to expose these flaws and suggest changes to reduce wrongful convictions. I view this as a civil rights movement that’s going to take decades because you really can’t argue with the reforms we’re suggesting—it’s really just a matter of educating people. It’s that people don’t want to be told how to do their jobs when things have been done the same way for decades, if not a century, so they are very suspicious about hearing that maybe we should change things. It takes a long time—it’s a slow process, but I think that the end result of this movement is going to be reforming how investigations occur and that will reduce the risk of wrongful convictions; when that happens there will still need to be innocence projects on the back end because mistakes will still sometimes happen, but we will have reduced the percentage. There are things we can do to reduce it—we’re just not doing it. We’re not doing the best we can do right now.

DG & AO: Blind Injustice serves as the inspiration for the opera which premiered in 2019 under the same name. Can you talk a little bit about how this particular project came about, and also the role of art in general—are there perhaps other projects or artists contributing in positive ways not only to OIP, but also to the global innocence movement?

MG: When the idea was first proposed to me about turning the book into an opera, I couldn’t envision how that would work, but they actually did an amazing job. It tells the story of four of the cases in the book, but it also blends in some of the cultural and psychological problems. You can actually stream it on platforms like iTunes, you can listen to the opera—if you do, I would pull up the words so you can read it as you’re listening. There were a lot of other opera companies interested in producing it around the country but then COVID hit, which has really sort of damaged things like this, but I’ve become convinced that such things are extremely important for change. In America, I’ve seen how people’s views about marijuana, or LGBTQ have changed since I was in high school in the 1980s, and a lot of that had to do with TV shows, Ellen DeGeneres, and things like that, which have changed the culture, and so I’ve spent a lot of time working on trying to create TV shows, music, and art because I think that’s how you make cultural change. And so the opera came about when the opera company here in Ohio approached me and said they wanted to do an opera about the book, and like I said: I was skeptical about it at first, but I worked with them on it and it’s actually a beautiful product. I’ve become convinced that art and pop culture play a huge role in social change. As a side point, the exonerees are often the ones who turn to art in order to express themselves. Some of our exonerees became incredible self-taught artists in prison and they used these skills to express their pain, and there’s now a traveling exhibit featuring the art of three of our exonerees when they were in prison—it was in MoMA (Museum of Modern Art, New York) last year and it’s going to be in Cincinnati, my hometown, this summer; it’s traveling around the country. And so, art plays a variety of roles—it plays a role in social change, but it also plays a role in the healing and expression of those who suffer the injustices.

DG & AO: Working for the rights of wrongfully incarcerated individuals is, surely, an endeavor that requires those involved to have the ability to deal with pronounced emotional fluctuation—the exhilaration of winning a case and the difficulty of being unable to secure the freedom of someone who is clearly innocent. Can you talk about an occasion where winning a case brought particularly great amounts of joy, and was there ever a time when fate wasn’t on your side to free an innocent individual?

MG: The job is depressing because people think of it as just in terms of us winning the cases, but the reality is that the system doesn’t want to admit it makes mistakes. So if you have ten clients for whom the evidence of innocence is strong, and you file on all ten—and people are shocked to hear this, but it really just depends on having the luck to land the right judge; it depends on what judges you get. And so, it’s just arbitrary, some of them you’ll win and some of them you’ll get judges who are very close minded, like I was as a prosecutor—no matter what evidence you present, their mind is closed. Or you, know, we’ve had situations where we win a case because we get an open-minded judge at the trial level, so the person is freed, but then the prosecution appeals, and they get judges on the appellate court who are very much prosecutors and they send the person back to prison using intellectually dishonest arguments, saying we’re overturning the exoneration. So, we’ve had that happen where somebody is free for two or three years and they’ve reestablished love and family connections, and then it’s taken away from them, and they’re sent back to prison to finish out their sentence.

DG & AO: That has happened?

MG: That has happened, yeah. We have cases like that.

DG & AO: My God, that’s unbelievable.

MG: Yeah, we literally have a group therapist—a psychologist—who volunteers her time. She does group sessions with us; she does individual sessions with us, talking about issues like how not to take things personally. But we have people burn out—they do the job for five years and they get so upset banging their head against the wall.

DG & AO: I can imagine.

MG: What’s depressing about the job is that it’s something akin to working in a child cancer unit—you’re a doctor who was trying to save children who have cancer; it’s a very depressing job because maybe you save some of your children and some of them die. It’s very much like our job and one thing that makes our work extra tough is that we can have evidence that somebody is innocent, but there is someone trying to stop the freedom. We have prosecutors, who, just because of politics, are trying to stop the effort. It’s almost like you’re a doctor who’s trying to save children, but somebody is coming in and stealing the medicine.

DG & AO: This is almost difficult to believe.

MG: But then on the other hand you have these wins: My longtime client that I worked with for years and developed a close relation to his family was just declared innocent last week.

DG & AO: Congratulations.

MG: Yeah, it’s a total vindication for him and his family.

DG & AO: Despite the aforementioned emotional ups and downs inherent to the job, it nevertheless seems, at least according to what you’ve said, that working for OIP has ultimately restored your faith in humanity instead of diminishing it.

MG: Yeah, I mean I think it’s an easier life to remain ignorant about the problems. There are people who just stay blissfully ignorant and they don’t think there any problems in the world. Once you introduce yourself to somebody who’s going to be fighting for change, and that’s who you’re going to be, you see the dark side of humanity. You see the things people do to each other, particularly when this happens within a system of bureaucracy. You know, a lot of these prosecutors who act evil in the courtroom and they try stop innocent people from getting out—they’re the same people who will help an old lady across the street carrying bags, or they shovel the snow from their neighbor’s driveway, but it’s the system, it’s when you become part of the big bureaucracy, that makes people act that way and so you see that dark side. But as philosophers before me have said much more eloquently: Whenever there’s darkness, you see the people who are stepping up to help, and you see the people who are making personal sacrifices to try and make the world a better place, so you’re seeing both sides of it.

DG & AO: Connecting past and present for a moment, it may be argued that the United States has been a nation that has not reflected on its past crimes and misdeeds as much, or as meaningfully, as it should. It was in 1888 that Frederick Douglass remarked, “well it may be said that Americans have no memories.” In your book you write that “I have seen good people—prosecutors and police officers—callously commit what I would call ‘acts of evil.’ In using the phrase ‘good people,’ I recognize that the line between good and evil is thin and that no person is all good or all bad.” In this respect, you emphasize the role of psychological conditioning and its capacity for intensifying either the good or bad traits in people—depending on motives. Along with more benevolent interrogation methods, do you think a greater awareness of our own historical burden can make people more humane, and thereby reduce their impulse to deny evidence which goes against their motives and worldview, or is historical awareness alone simply not powerful enough to create the type of empathy that would allow prosecutors, for example, to overcome the psychological barrier of denying evidence which could clearly exonerate someone they’re trying to put in jail?

MG: I think historical knowledge is important but not enough alone. The more people understand about the history of the United States, racism, and how that’s so embedded into our system—indeed that’s extremely important for fighting injustice, but it’s shocking to me how little people know about themselves, human capacity for bias, and our psychological limitation; we should be educated on things like this at a young age. It’s amazing that police officers and people with incredible power aren’t aware of how their own mind works and how their biases will filter into everything. Knowledge of it alone is not enough to cure it, but it’s a big step; it helps a lot, and so it would be historical knowledge plus knowledge of how the mind actually works, because we tell ourselves as humans that we’re really good at investigating and figuring out what happens, and then we become one-hundred percent positive that we know the truth; in reality, we weren’t there—in reality we came to that conclusion because of all our biases and pre-existing conditions and circumstances, but we deny those things.

DG & AO: We are living through a turbulent era in the United States. The issues of racial and economic inequality are more apparent than in the past—or they have simply become undeniable, to the point that there is a growing realization that something must be done about them. There is, now, a greater willingness to accept the fact that the system does make mistakes, and has indeed made many of them in the past. But how do you view the future of criminal justice in the United States? How can we prevent various figures within the system, such as judges, from becoming, in your expression, “jaded?” Finally, do you think that there is now at least an adequate recognition of wrongful conviction in the prosecutorial arena of our justice system, and what changes in attitude, if any, have there been in this respect since the publication of Blind Injustice in 2017?

MG: I think we’re at the beginning of this decades-long cultural shift that I hope will continue with people yelling and screaming to bring these matters further into arena of pop culture, and TV, and operas, and all kinds of things. The George Floyd murder really helped bring these things to the attention of people who were in denial about it before; it’s sad that it takes the death of somebody to help move things forward, but this is how change happens. I have actually seen more people be open to problems in the system since the death of George Floyd, so in just one or two years, than in the previous eighteen years that I was doing this work. I think a future book I might write is: What the criminal justice system should look like in a hundred years. What should it look like given what we know now? At this point, it would be way too long to try and answer that question, but we are starting to see the beginning of it. There are prosecutors who are running for election based on reform—that I’m going to be different; I’m going to be the prosecutor of the future. And some of them are phony—they’re just doing it to get elected; they’re not really like that, but many of them, like in Detroit, in Philadelphia, in LA, in San Francisco are getting elected and they’re coming and changing everything. They’re making it how it should be; that would’ve been unthinkable ten years ago, so it’s too early to tell you how it’s going to go, but we are starting to see that change.