Justin Brooks
Magical, Mystical, Mysterious Clemencies
TEDxSanDiego 2016

In 1883, a wealthy Australian lawyer purchased a yacht in the UK. He had to get that yacht back home. The problem with it was that it wasn’t really built for long sea journeys, so he had trouble talking anyone into sailing it for him. Finally, he did.

He got a crew of four people to agree to it. Dudley, Stevens, Brooks, and a 17-year-old named Parker. They head out on their journey. They were doing okay for a while. But about 1600 miles from the Cape of Good Hope, they ran into a big storm. They were 700 miles from any land. The yacht sank and they ended up on a lifeboat.

They went for about a week without any food. Then they caught a turtle that they ate. Then they went weeks more without any food. They were all starving to death. Parker, who didn’t have a lot of experience at sea, made a fatal mistake and started drinking sea water. He got very ill. The other three talked about it and decided that they needed to eat something. They were going to die if they didn’t. And so, they killed Parker and they ate him.

Weeks later, a ship passed and picked the three men up. There were the remains of Parker on the raft. They all confessed to what had happened. They were put on trial for murder. They raised the defense of necessity. The idea being, “We needed to kill him in order to survive.” They had testimony that all four of them would have died had they not eaten Parker.

That was a very difficult concept for a court to accept. The idea that you could kill someone who wasn’t posing a threat to you in order to save yourself. The court rejected that defense and said, “Necessity cannot be a defense in these situations. This is murder,” and then sentenced them to death.

After they were sentenced to death, Queen Victoria commuted their sentence. She believed that it was an extraordinary circumstance that, had anyone else been in the same situation, they may have done the same thing. That it was better to save three lives than to lose four. She acted as a safety valve where the principle could be upheld that you cannot kill someone in this manner. The law was upheld, but then they let them out the back door.

That’s known as the royal prerogative, where the Queen and King had the power to do that. We brought that power to the colonies with us and put it in our Constitution. We granted that power to our president. He could look at something that happened and had absolute power to release anyone he chooses from federal prison. He can give pardons, reduce sentences, grant clemency. It’s an absolute power that the Executive has. It’s been used many, many times.

Typically, it’s used on the last day a president is in office, when the media is not paying attention. They turn in their little list. A lot of times, it’s people politically connected. Maybe to big law firms have been lobbying on their behalf. Maybe they’re Wall Street people. They get their list. They all have them. Presidents have used that power for other presidents. Some of you are old enough to remember these two guys, Ford and Nixon.

Our current president has been using it a lot lately. He’s been using it to commute sentences that he believes were unfair. Sentences for drug crimes that, today, would not get anywhere near the sentence that they got in the seventies and eighties. He’s been releasing people for that. Hundreds of people have been released. He also uses it once a year to save one turkey. From the ridiculous to the sublime.

It’s an absolute power that the president has. We also have that power granted to governors of every state. The highest executive in the states. That’s where it’s even more significant. The United States incarcerates more people than any country in the world. We have the largest prison population in the world. Most of those people are incarcerated in state prisons.

As director of the California Innocence Project, my office, the law students, the lawyers who work for me, we review cases that come in our office very day. We see more than 1500 cases a year of inmates in California who are claiming they’re innocent.

With a country with the most people in prison, California is the state with the most people in prison. We have an overwhelming number of these cases that come in. We review each one of them. We look for just one thing. Evidence of factual innocence.

To get a case opened in California is an incredible task, to un-ring that bell, to get a court to say, “We’re going to take a second look at this case, even though this person had been tried, convicted, lost their appeal and maybe filed a couple of habeas petitions from prison. We’re going to take a look.”

To get a judge to say that, you need to have really good evidence. And it’s a really difficult process. That’s why it’s a little frustrating when you see governors of states using that clemency to, for instance, let their friends out of prison, the guys who work in their garden, their butler or people who were assigned to the state house. It can be done just like that, with a stroke of a pen.

Between all of our innocence organizations, we’ve released almost 2,000 people. Strong cases of innocence using DNA. But we don’t have that power that a governor has. In a lot of our cases, we’ve run out of options. We’ve run out of procedures.

I was thinking about clemency one night. I thought, “We have all these cases. Why don’t we just petition Jerry Brown to grant clemency?” We sat down our staff and identified 12 compelling cases. Black people, white people, Mexican people, men, women, from all cross sections of our communities in California. All with one common thing. They were all strong cases of innocence. We wrote clemency petitions for them.

But then I thought, “How are we going to get the governor’s attention?” The 165,000 inmates in California also write these clemency petitions. I came up with this crazy-stupid idea that I would walk those clemency petitions from my office a few blocks from here to the governor’s office in Sacramento. That’s what I did.

The lawyers in my office that I thought would talk me out of it, instead said, “Great idea, Boss. You should do that.” Two of them even volunteered to go with me, Alissa Bjerkhoel and Mike Semanchik. We started walking. We did rallies. We went to high schools and colleges, and talked. Family members came out for our clients and people we got out of prison, like Brian Banks, who at that point, was playing in the NFL. He flew back from the Atlanta Falcons training camp to walk with us.

We had people we’d gotten out, their families and friends. There were all kinds of people along the way, cheering us on and keeping us going. It’s a long walk. Just going through Camp Pendleton is a long walk. At first, you think 15 miles a day, but it was hot. People said, “I can walk 15 miles.” Try doing it the next day and the next day, for 712 miles.

We were able to visit some of our clients in prison along the way. We got to visit Guy Miles in San Quentin, who is imprisoned even though 10 witnesses said he was in Las Vegas at the time this armed robbery happened in Orange County. Even though the three guys have come forward and admitted that they committed that crime, he’s still in prison. We ate the same food every day so we didn’t get sick and took lots of pills, and pushed each other along all those miles. We discovered there’s no legal way to walk across California up the coast, so we were on train tracks and the 101. That wasn’t always well received by some people in law enforcement.

To give you a little flavor of it, here’s what mile 450 looked like. “It’s windy out here coming across this plain. It’s beautiful but it is windy. We’ve been fighting this wind for about an hour. I’m getting tired of it. Come on. It’s time for the wind to stop. Stop.” It wasn’t all fun.

When you drive Big Sur, you don’t realize how up and down it goes. It’s big. We finally got there. We had about 150 people when we got there. It was like Forrest Gump. We walk into Sacramento. The governor agreed to have his staff meet with us, a meeting I tried to get for a year. Finally, the media attention got us a meeting. We presented these cases.

We plead to them, “These are 12 innocent people. They really need to be released. You really need to look at these cases.” And nothing happened. This was three years ago that we showed up at his office. Every single morning since then, as soon as I open my eyes, I pick up my cell phone and I tweet, “Jerry Brown, please review the California 12 petitions. Please release my clients.”

But we didn’t do nothing and just wait. We kept fighting for their freedom. We released Bill Richards, who spent 23 years in prison for a murder he didn’t commit. We released Kim Long, who came home one day and found her boyfriend beaten to death. We got her out of prison after eight years for a murder she didn’t commit. We released Allen Gimenez, who spent 24 years for a murder he didn’t commit.

We released Mike Hanline after 36 years in prison for a murder he didn’t commit. That woman in the picture standing next to him waited 36 years to come home. That was his wife, who waited all that time. All four of these people had compelling cases of innocence that, finally, the courts recognized. The other eight are exactly the same.

I ask you to join me in this fight. It is something you can do today. You can follow me on Twitter and Facebook. We have 800 and some days left in Jerry Brown’s tenure to get this message to him. If anyone should be granted clemency, why are we not first looking at the innocent people? We know innocent people are in prison. We know it’s been documented. Why not look at those cases?

I want to finish by asking each one of you to close your eyes for a minute. Think back in your life to a time when you were accused of something you didn’t do. Think about how that feels. Now imagine getting arrested for that. Now imagine going to trial for that.

Imagine all of your family’s resources being expended on that trial. Imagine everyone in your community believing you’re guilty of that crime. Now imagine going to prison and waking up every day in that cell, knowing that you’re innocent and shouldn’t be there. It’s a surrealistic nightmare that no one should go through. Thank you all for your time.