Mark Godsey is an American superhero: He gets innocent people out of prison

Onetime "prosecutor's prosecutor" on his conversion experience, and how he became a crusader for the voiceless

Published September 24, 2017 8:00AM (EDT)

Mark A. Godsey ( Kurtz)
Mark A. Godsey ( Kurtz)

America is in desperate need of heroes, and Mark Godsey, the director and co-founder of the Ohio Innocence Project (OIP) and author of the compelling new book, “Blind Injustice: A Former Prosecutor Exposes the Psychology and Politics of Wrongful Convictions,” is one of the heroes we need now more than ever.

The Ohio Innocence Project, based at the University of Cincinnati School of Law, has successfully freed and exonerated more than two dozen wrongfully-convicted men and women, many of whom spent decades in prison before Godsey and OIP worked tenaciously to free them. If the familiar maxim “whoever saves a life saves the world entire” is for real, Godsey and his team of lawyers, along with his tireless student volunteers, have saved the world several times over. The "exonerees," Godsey told me, have formed a sort of fellowship to help guide each other through the process of re-entering life. These are stories that push well beyond inducing tears and chills; they’re stories of humanity serving humanity in ways we seldom observe, with the greatest dual rewards of freedom and justice waiting at the end.

Godsey, a former New York prosecutor who once mentored a lawyer you might have heard of named Preet Bharara, details his experiences in the trenches of the Innocence Project in “Blind Injustice.” It’s a breathless page-turner, especially for true crime readers, drawing together Godsey and his indefatigable staff as they relentlessly power through volumes and volumes of evidence in pursuit of the truth. And that’s the centerpiece of the story: seeking the truth amid a pulse-pounding hurricane of prosecutorial errors and miscarriages of justice.

Godsey is humble and incredibly engaging without being too lawyerly. Each time I’ve read his words or spoke with him personally, I’m met with a profoundly, almost obsessively altruistic voice for the voiceless. After all, who listens to convicted prisoners -- ever? Few if any of us can say we do, but as long as Godsey and his team are backstopping the flaws and gaps in the system, we can rest assured knowing that some of the best and most thoughtful American lawyers are standing on that wall, safeguarding the ideals of truth and justice. All that real-life Superman stuff. If there’s a lawyer better equipped for this station than Godsey, he or she is probably already working for OIP.

I had the good fortune of chatting with Godsey about “Blind Injustice” and some of the highs and lows of freeing the innocent. (Full disclosure: I’ve edited two video presentations -- here and here -- for OIP.)

Many of the men and women you’ve helped to exonerate were in prison for a significant chunk of their lifetimes -- locked in suspended animation until you and the law students came along. At the risk of embarrassing you, do you ever let it sink in that you’re in the business of literally saving lives, and that you’ve done so dozens of times to date? Or do you find there’s too much weight on your shoulders to think about it in existential terms like that?

It doesn't really sink in like that. When we got the news earlier this year that Evin King was to be exonerated and released after serving 23 years in prison for a murder he didn't commit, Dean Gillispie [another exonerated inmate] happened to be in our office visiting. We freed Dean back in 2011 after he spent 20 years in prison for a string of rapes he didn't commit. Dean said to me, "Man, Evin is number 25 -- your organization has now saved 25 lives. How do you deal with that? You're acting like it's just another day but you guys just saved another life!"  

I guess my reaction is that the system is so resistant to admitting mistakes that we lose far more often than we should. The wins are few and far between. So our energy in mostly spent in frustration and sadness about the innocent people we have dedicated years of our lives to helping but have thus far been unable to free. So when someone like Evin King is freed, we sort of think, "This is amazing, but it’s about time. He should have been freed many years ago when the DNA testing first proved his innocence. Why did he have to sit in prison all this extra time?" And then we move on because there's always a pile of work waiting for us.

To the extent we feel the "weight of the world on our shoulders," as you say, it's for the innocent people still in prison.

Along those lines, can you talk about a case – or cases – in which you know you have adequate exculpatory evidence to free a prisoner, but somehow it wasn’t enough, or the judge doesn’t see the evidence through the same lens as you and your team?

Well, unfortunately, there are many to choose from. Perhaps the easiest to explain is the Kevin Thornton case from outside  Cincinnati. He was convicted of armed robbery of a check-cashing place. He's been in prison for a decade already, but he's innocent. The perp went into the store and tied up the sole employee with plastic zip-ties around her feet and arms and then took the money from the cash drawer. The only evidence against Kevin at trial was a shaky identification from the victim.

I say "shaky" because the perp was wearing a hat and sunglasses. So when the police had her look at photos, she covered the upper half of each photo with her hand and made her identification just from the mouths and chins of each photo, if you can believe that. It wasn't enough to get a conviction, though, as the jury couldn't reach a decision. So the prosecution decided to retry Kevin and knew they needed something more, so, lo and behold, shortly before the second trial what we call an "incentivized witness" stepped forward. An incentivized witness, also known as a "snitch," is a criminal who is facing his own charges but cuts a deal to get leniency for testifying against someone else he knows the police are hot to nail. So this guy steps forward and says, "Kevin confessed to me that he did it," and then gets a sweetheart deal. That was enough to seal Kevin's fate in the second trial.

Kevin always screamed his innocence. The case caught our attention because mistaken eyewitness identification and snitch testimony are two of the biggest causes of wrongful convictions. And in Kevin's case the identification and snitch testimony were even more suspicious than usual. We did DNA testing on the zip-ties and an unknown man's DNA was found on both sets -- the zip-ties from the victim's feet and the zip-ties from the victim's hands. It was the same man's DNA on both sets of zip-ties, and it wasn't Kevin Thornton's DNA.

Moreover, we had an expert perform what is called photogrammetry. There was a surveillance video of the robbery, but you couldn't see the perp's face. With photogrammetry, the expert goes into the store and measures the height of everything in the store that shows up on the surveillance tape -- the counter, the top of the cash register, the windows, everything. And from that, and some simple geometry applied to each frame of the video, you can determine the exact height of the perpetrator. The perp in this case was five inches shorter than Kevin, without a doubt.

So we had DNA evidence, and we had rock solid photogrammetry evidence, and presented this in court many years ago. But the court denied Kevin, even though it acknowledged the strength of our evidence. And so did the court of appeals. And so did the Ohio Supreme Court. And now the case has been sitting in a pile of cases in federal court for years while Kevin sits in prison. Prosecutors and courts don't want to admit mistakes of this magnitude, and often twist evidence in obscene ways to avoid admitting a mistake. There's a whole psychology or pathology behind it, which I understand because I used to be a prosecutor and which I talk about in “Blind Injustice.” And that's what is happening in Kevin Thornton's case. It's sad and disgusting really.

You must have been crushed, but not as much as Kevin likely was.

When we lose cases like this it is really demoralizing. Having to tell an innocent person who you've grown to like and you empathize with that they lost despite clear evidence of innocence, and that they'll have to remain in prison away from their children and other family members, is one of the hardest things you can ever do in life. In our office, we always have to pick each other up to keep going, which I talk about a great deal in the book. We've realized, though, that even when we lose a case like this, just the act of standing up for someone like Kevin -- standing by his side and saying, "We care about you enough to fight for you" -- has value to him, and value to humanity, even if we lose. We have had clients like Kevin tell us that they had lost all hope, and just the fact that someone finally listened and joined in their fight helped re-instill their faith in humanity.

I've had a mom of a client tell me what even though her son was still in prison, just having us join the fight meant that she could enjoy Christmas for the first time since they took her son away. (We eventually won that case and freed her son many years later.) But many of these cases we don't win, so we try to find value in the tough losses.

I tell my staff that my favorite quote from “To Kill a Mockingbird” is when Atticus says to his kids something like, "I don't want you to get the idea that courage is a big man with a gun. Courage is when you're licked before you start, but you start anyway and see it through all the way to the end, no matter what, because it's the right thing to do." You have to live by words like that when you do innocence work, or you'll burn out quickly from all the punches to the gut.

Win or lose, OIP represents hope in a seemingly hopeless situation. It’s impossible to imagine being wrongfully imprisoned for even a day, much less nearly 40 years like Wiley Bridgeman and Ricky Jackson. Even after they’re freed, and even though Ricky has done well for himself, they must feel deep anger and resentment -- a sense of profound loss of time, and so much more. How do men like Ricky manage to re-enter the world after unjust terms that last almost a lifetime?

It's impossible for me to fully answer that question, not having been through it myself.  But I can talk about a few things I've noticed about exonerees. First, PTSD is common. It's something most of them deal with. This can take a variety of forms. Some have nightmares of prison at night. Others have certain triggers that make them depressed or enraged, like seeing a prison guard in uniform walking through the grocery store after work. Others have trust problems, and have issues staying in relationships.

I don't know how a person can come to terms with the fact that they only get one life, and decades of that life were unjustly taken from them. One positive thing I can say, however, is that most of them are wise enough to realize that if they carry the anger with them, they're limiting the quality of the years they have left on earth. So most of them are able to forgive and move on. Believe it or not, it's true.

Another thing is that they all appreciate everyday freedoms, like the ability to walk over to a fridge, open it, and take whatever they want to eat or grab a cold beer. Or walk outside at night and see the stars. They appreciate the simple pleasures in life that too many of us overlook. At the same time, dumb little things that the rest of us get worked up about, like bad traffic, doesn't bother them. They have been given a gift in one sense -- the gift of never taking life, or freedom, for granted.  

So many of them are incredibly wise and inspirational figures. Talking to Ricky Jackson, for example, is like climbing to the top of a mountain in Nepal and talking to a revered Buddhist monk. He's been through something the rest of us can't imagine. His choice was to either break, or come to terms with the meaning of his life in a way most of us are never forced to do. He somehow made sense of it, which means making sense out of all the dumb things that confound us regular people is child's play to him.

Yes, we try to get them out to speak to colleges, high schools, etc., as much as possible. We try to help them when we can. [Exoneree] Nancy Smith, for example, we were able to pay her tuition to go back to school and now she has an excellent job that she enjoys. We see them frequently. Many of them I am very close to. There are strong bonds there that remain.

Are the exonerees close to each other?

When a new exoneree gets out, most of them go to court to welcome them into the club. They get together on their own socially and always have each other's backs.

You're right, these cases are incredible dramas. I mean look at Clarence Elkins' case, for example. He was wrongfully imprisoned for the murder and rape of his mother-in-law and attempted murder and rape of his niece, and he helped solve his own case from prison and catch the true perpetrator. He was in prison with the guy Clarence and his then-wife suspected of actually committing the crimes, and Clarence followed him around until he could scoop up a clean cigarette butt. Then he pressed it flat in his bible so it would make it out through the prison mail system, and eventually mailed it to the DNA lab. It came back and proved not only that Clarence was innocent, which led to Clarence's exoneration and freedom, but that the other guy was guilty. The "other guy" is Earl Mann, and now he's serving life for the crimes that Clarence went to prison for.

Wow. And Ricky Jackson’s case was even more dramatic.

He gets sent to death row based on the lie of a 12-year-old boy. This boy, Ed Vernon, ruined Ricky's life with that lie. Ricky narrowly escaped execution in the 1970s, and based on a lucky technicality got off death row to serve life in prison. After nearly 40 years in prison, the OIP proved him innocent and he was exonerated. That set a national record for the longest-serving person in U.S history to be exonerated and freed. Ricky was freed in part because Ed Vernon's guilt eventually overcame him, and he recanted his testimony and admitted he lied when he sent Ricky to death row so many decades early, and said that the guilt from that lie had ruined his life as well.

But after Ricky gets out of prison, there's one thing he has to do first. Not see the ocean, or stay up all night partying with friends. Instead, he asks to meet Ed Vernon, the 12-year-old who framed him, who was now in his 50s. And Ricky told him, "I forgive you. I want you to live a good life."   

That takes my breath away.

Ricky had realized that in order for him to be truly free, and to enjoy his final years on earth, he couldn't carry around that hate and anger. In a lesson worthy of the New Testament, he sought out Ed Vernon and forgave him so they would both be free of the lie that had ruined both of their lives.

So you see, those stories are made for a musical performance piece, as music enhances the natural emotion that comes from great stories. The idea for an opera came about from some of the young professionals on our advocacy board who approached the Cincinnati Opera, the Cincinnati Conservatory of Music and some other associated organizations in Cincinnati. After a few meetings, and after reading the stories of Ricky, Clarence, Nancy Smith and the East Cleveland Three in “Blind Injustice,” they decided to start working together on a performance piece that would bring these stories to life and share them with the world. It is currently in the works, with a composer and librettist lined up, and the details will be announced soon. It's will be incredibly exciting to see the grace and courage of people like Clarence, Ricky, Nancy and the East Cleveland Three put to song and stage.

How did you end up forming OIP? Was there a specific case that attracted you toward this work?

My story of conversion from hard-nosed prosecutor to innocence lawyer is what the first chapter of “Blind Injustice” is about. The chapter is called "Eye Opener." In a nutshell, I took a law professor job at a school that already had an innocence organization, and the professor who ran it was on sabbatical my first year of teaching. So I was “made” to supervise the students.

In the first meeting, some law students are going on and on about how they thought this inmate they'd just visited in prison, Herman May, was innocent. I asked them questions about the case, and ribbed them for being naive "bleeding heart" law students for actually believing this guy could be innocent. Then DNA testing was performed, and it proved him innocent. I was shocked. The rest of the story is in the book, but suffice it to say that the conversion took the next year, but by the time I got the job at Cincinnati Law, this had become my life's passion. So John Cranley (now the mayor of Cincinnati) and several other key players founded the Ohio Innocence Project at University of Cincinnati College of Law.

Was your experience with being an assistant U.S. attorney in New York instrumental in spotting prosecutorial flaws that lead to wrongful convictions?

Absolutely, that's why I wrote the book. I mean, I went through this conversion where I had to eat crow and learn to rethink everything I knew about criminal justice. As a “prosecutor's prosecutor,” I had been in a fog of bureaucratic denial about the problems in the system. So once my eyes were opened and I was able to see, it caused me to re-evaluate my attitude, and things I had  learned and done, as a prosecutor. The book goes into this quite a bit, and tells stories of things I did as a prosecutor, and that others did around me, that I now question.  

Cutting corners, ignoring police misconduct, skewing forensics in our favor, bending witness statements to fit our case, and not disclosing all exculpatory information as the Constitution requires. The book then cuts to stories from my career as an innocence lawyer and shows how those same types of attitudes and actions cause wrongful convictions of the innocent. So it's really part memoir and confessional. Not many prosecutors ever write a book like this, so the book is unusual and, I'm told, "eye-opening" for that reason. I was really given a gift, an unusual perspective, to have been a prosecutor before doing innocence work, so I felt I had to write about it. 

The moment at the end of the latest OIP video presentation in which you’re informing Dean Gillispie’s parents that he’s been freed is one of the most incredible things I’ve ever seen. The exhilaration and the disappointment must be equally extreme, though -- how are you able to deal with the emotional extremes?

You roll with them. There is a saying among lawyers that you shouldn't become friends with your clients -- keep them at arm’s length. That way, you avoid the emotional highs and lows and you can be a better lawyer. I think that's bullshit. For scaredy cats. I've given my heart to my clients. It might mean I lose a lot of sleep, but having your heart in a case helps win cases.  

Judges feel it, everyone feels it when you are on the right side morally and you know it, when you care deeply, and you aren't afraid to show it. Some of the most important relationships of my life -- the most meaningful and spiritual relationships I have -- are with people who I have fought for, and fought with and thus formed deep, lifelong connections with. You see that in that segment of the OIP video you're talking about. I wouldn't trade that for anything. Lawyers who are stiff and keep their clients at arms length are missing out. It may make the losses tougher, but that's life.  It makes the wins all the sweeter. If you're gonna do it, you might as well be all in and feel it.

With “O.J.: Made in America,” “13th,” “The New Jim Crow,” etc., there is so much attention to the role that race plays in creating injustice in our system. “Blind Injustice” is fascinating in that it focuses on psychological factors that lead to injustices, like confirmation bias, dehumanization, tunnel vision, malleable human memory, etc. But you don't discuss racism in the book. That seems like a major oversight. Why do you avoid racism? Clearly it plays a huge role in the your cases and in wrongful convictions in general.

I say at the beginning that I'm not going to discuss how racism taints outcomes in criminal justice because it's been heavily covered in other books, and I want to focus on less well-known issues. Also, I say that if I went into racism, it's such a huge issue that it would dominate the book. But the biggest reason I don't directly address racism is that the psychological factors discussed in the book, like confirmation bias, tunnel vision, etc., are the building blocks for racism. If you can understand those issues, then you can understand racism.  But racism is such a loaded term and invokes such strong feelings that if I mixed it in throughout the book, people would focus on that issue and not the building-block things I want them to lean.

I wanted readers to clearly focus on psychological issues like dehumanization and confirmation bias without the learning process being slanted by such an emotional concept as racism. People think they're not racists, so if you're pitching it as a book about racism, they won't listen. So by not talking about racism, it's my hope that I've helped people understanding racism better. I'm sneaky that way. In the end, I wanted people to think about it and say to themselves, “This book never mentioned racism, but it actually was a book about racism as much as it was about anything else.”

Do you foresee yourself remaining in this post for the long run or handing off the reins to your colleagues?

I will never leave. This is what I’m meant to do. You're lucky when your job is part of your “meaning of life” and thus fits in seamlessly.


By Bob Cesca

Bob Cesca is a regular contributor to Salon. He's also the host of "The Bob Cesca Show" podcast, and a weekly guest on both the "Stephanie Miller Show" and "Tell Me Everything with John Fugelsang." Follow him on Facebook and Twitter. Contribute through LaterPay to support Bob's Salon articles -- all money donated goes directly to the writer.