This is FRESH AIR. I'm Terry Gross. While serving a 60-year sentence with no possibility of parole for an armed robbery in New Orleans that he insisted he didn't commit, Yutico Briley wrote dozens of letters to lawyers, innocence projects and anyone he thought could help him get out of prison. In 2019, after seven years in prison, he heard my guest Emily Bazelon interviewed on FRESH AIR. We were talking about her book "Charged," about how prosecutors had gained breathtaking power in the past 40 years and used it to put more people in prison, ripping apart poor communities, mostly Black or brown. Briley wrote to her, but she didn't even read his letter until a couple of months later when a librarian in Oregon, who corresponded with Briley through a support program for incarcerated people, got in touch with Bazelon, saying, Briley was trying to contact her. Bazelon found Briley's letter, began corresponding with him and became convinced his case was worth looking into.
She contacted several lawyers, who declined to represent him, so she tried her sister Lara Bazelon, a professor of law at the University of San Francisco, where she runs a criminal justice clinic. Lara took on the case, and with the help of her students, a private detective and Emily, she was able to appeal Briley's case. He was exonerated in March. We'll hear from Briley later in the show. But first, Emily Bazelon is going to tell us why she thinks Briley's conviction and sentence seem typical of the inequality and waste of mass incarceration. Emily Bazelon's article about the case is the cover story of The New York Times magazine, where she's a staff writer. She covers criminal justice. Although she has a law degree, she's never practiced law. She's a lecturer at Yale Law School.
Emily Bazelon, welcome back to FRESH AIR.
EMILY BAZELON: Thanks so much for having me.
GROSS: You'd never intervened in a case before, although you've gotten many, many letters from prisoners asking for your help. Why did you decide to keep looking further into Yutico Briley's case?
BAZELON: You know, I've asked myself that question a lot of times because I don't think I really had such a clear reason when I did it. You know, part of it was just that I could tell there was just this smart and funny person behind the letter I'd gotten and then the messages I started to get from Yutico. And it just seemed like such a waste that he had this 60-year sentence. I kind of couldn't get my mind around the idea that a 19-year-old had basically gotten a life sentence for an armed robbery in which no one was injured. And then, of course, he said he didn't do it.
And the basis of his conviction mostly was that one eyewitness, who was the victim of the armed robbery, had identified him. And this was an armed robbery that took place at 2 in the morning in the dark. And Yutico is Black, and the victim, the eyewitness, was white. And I know that single-witness identifications, especially when they're cross-racial, that's, like - all of those are indications that the identification might not be reliable, not because the eyewitness isn't doing their best; just, the factors involved leave reason for some doubt. So all of those things really combined to make me feel like, here was this person, and he was so stuck. And I didn't really think there was necessarily a story, and he really didn't need a journalist; he needed a lawyer. I could see that clearly. And so that's why I started to call people.
GROSS: One of the reasons Yutico wrote you was because of something that you said about guns and young people arrested for carrying a gun without a permit. Tell us what you'd said and how relevant that was to his story and his imprisonment.
BAZELON: When I was reporting for my book "Charged," which I talked about on FRESH AIR - and that's how Yutico found out about me - I reported a lot on young men in Brooklyn who are carrying guns. And they said they were carrying them for protection. In fact, carrying those guns created a lot of danger and risk for them because once you have a gun, other people may see you as violent; they may try to do something on the offense to you. And I knew that it was a kind of self-defeating way of thinking about guns. But I had heard it so many times, and I understood that for some young men, the police are not a refuge. They do feel legitimately like they're at risk and like they have to take some steps to protect themselves. So that's the dynamic that I wrote about and I was talking about on the radio, and Yutico really identified with that.
GROSS: One of the reasons why he was arrested was because a gun fell out of his pocket. Tell us the story of how he was arrested.
BAZELON: So he was walking down the street one night in New Orleans in this neighborhood called Mid-City. He was with a few friends. It was, like, 8 o'clock at night. He says they were just walking down the street. The cops saw him, and they had a description from an armed robbery from the night before - young Black guy wearing a gray hoodie. And Yutico was a young Black guy, and he was wearing a gray hoodie. The police said that he was also clutching his hip and kind of looking around his shoulder and that that's why they stopped him. Yutico says he wasn't doing those things. In any case, they stopped the car. They asked him to stop. And because he had a gun, in violation of his parole, which he was on at the time, he ran. And so at that point, you know, they're running after him; they're arresting him for having the gun and for resisting arrest.
GROSS: And how did he end up being booked for the crime of the armed robbery?
BAZELON: So in his telling, the next morning, he's in jail, and they give him this red bracelet. And the bracelets in jail are color-coded for different kinds of offenses, and red is for a violent offense. And so he says, that's the moment he found out that he was a suspect in this armed robbery that had taken place basically 18 hours before he was arrested.
GROSS: Now, you mentioned he was out on parole. That was for possession and intent to sell. It was not a violent crime.
BAZELON: That's right. When he was 17, he was arrested for possession and intent to sell drugs, and he was convicted and given a short jail sentence. But then he was still on parole for that offense when he was picked up when he was 19.
GROSS: So you mentioned the person who was robbed and who identified Yutico as being the person who robbed him at gunpoint. And the evidence that you mentioned was that he was a Black person, a young man wearing a hoodie. That describes, like, so many people. It doesn't seem like a whole lot of evidence to convict someone on. And you mentioned that it was dark and that the victim was white and the - and Briley is Black. And it's harder for people to identify people when the person they're identifying is from another race, which is interesting, but that's what the research shows. There were other problems in the identification that are sometimes typical of things that go wrong. One of the problems was, there wasn't a lineup. He was - you know, the victim was just presented with Yutico and said, hey, is this the guy? What's wrong with that?
BAZELON: Yeah, so this is a police procedure I had actually never heard of before. It's called a show-up. And so what happened in this case was, they arrested Yutico for this unrelated offense of this - having a gun in violation of his parole. Then they called the victim of the armed robbery, and they said, can you come on down to the police station? We have a possible suspect for you to look at. And they brought Yutico into the parking garage. He was standing there handcuffed under a light, and the victim, from a police car, was asked - is this the guy? - and then said yes, though the victim himself said later in court that it was a really uncomfortable situation that seemed unprofessional to him. So the problem with a show-up is that you only have one person you're looking at. When eyewitnesses look at lineups, research shows they tend to assume that someone in the group is the culprit. And the problem with a show-up is that you can't spread out that assumption among multiple people. You're just - you just have one person to point to. And so a show-up - experts say that a show-up is inherently suggestive because there's just only this one choice.
GROSS: But you describe research that questions identification in the first place, that it's often really hard for the victim to truly know, hours later or days later, if a person who they're shown is really the perpetrator.
BAZELON: Yeah. So that's another problem with the show-up in this case. It did not take place immediately after the armed robbery. It was 20 hours later. And over time, eyewitnesses' memories tend to blur. The basic problem is we're just not very good, as human beings, at remembering the kinds of distinctive facial features that truly separate one person from another. So we remember things like - did you have a mustache? You know, maybe what color eyes did you have? - but not, like, the very specific aspects of people's features. And the longer the time passes between an initial viewing and our efforts to retrieve that memory, the harder it is for those very specific kinds of details to really remain retrievable in the brain.
GROSS: Yutico's lawyer was James Williams - his first lawyer. And you say that people like you who cover the criminal justice system know him by reputation. What's his reputation?
BAZELON: So Jim Williams, like you said, is a former prosecutor. And when he worked in the district attorney's office in New Orleans in the 1980s, he was known for having a miniature replica of an electric chair on his desk. And it actually jolted when you touched it 'cause it had a battery in it. Fixed to this little electric chair were the photographs of five men, all of them Black, whom Williams prosecuted and who were sentenced to death. Two of those people were later exonerated. And the reason I know about this mini electric chair is that Williams actually posed for a photograph of himself with it in Esquire magazine in the 1980s.
GROSS: So the photos of the five Black men sentenced to death - he was proud of that, that they were sentenced to death?
BAZELON: Yes, apparently, he was.
GROSS: Why did Yutico want him, Williams, to represent him?
BAZELON: Yutico had the idea that Williams was a good lawyer to have in Jefferson Parish, which is the parish next to New Orleans. And, you know, sometimes people who are former prosecutors open defense practices. And, you know, defendants don't always know everything they've done before. And I think a lot of people have the idea that they have to hire a lawyer if they get arrested - that if they take the free lawyer from the government, that's going to be worse than the person they can hire. And so I think that played into why Williams was representing Yutico in this case.
GROSS: Part of your article is about the cascading effect when you're being tried. If you insist on your innocence, there's things that can keep going wrong that make it harder and harder and harder for you to prove your case. And this is one of the things that happened with Yutico. There was certain evidence he wanted his lawyer, James Williams, to get that was never gotten. So what was that evidence?
BAZELON: Yeah. So the first time that Yutico talked to Mr. Williams, he said, I have an alibi, and my alibi is that I was at a hotel during the time this armed robbery took place. It's called the Evergreen Motel. If you get the surveillance footage from the lobby, you'll see me going in at about midnight. And so this surveillance footage - Yutico said, if you get it, it will clear me. And he also gave the name of a person he was with that night and suggested getting his cellphone records, which would have showed that he was at this motel and not in Mid-City, where the armed robbery took place.
The problem was that Jim Williams and his office waited to file a subpoena with the motel to get the video surveillance footage. And then it turned out they had made a mistake. They asked for the wrong hours. Instead of getting midnight to 3 a.m., which covered the period of the armed robbery, they got 12 p.m. to 3 p.m., which was irrelevant. And because they had waited, when the public defender who then took up the case came in and tried to file a subpoena for the correct hours, the needed video surveillance footage that Yutico had sought all along, she couldn't get it because the motel had taped over it.
GROSS: So that's a pretty major thing that went wrong. What about the cellphone?
BAZELON: Yeah. So the first lawyer, Jim Williams, never filed any kind of subpoena for the cellphone records. After he left the case, because Yutico couldn't keep paying his fees, the public defender tried to get those cellphone records. But she only had the case for a brief period. This is a public defender named Lauren Boudreaux. She was taking all the right steps. But Yutico's family wanted a private lawyer to represent him, and so she didn't have the case for very long. A couple of new private lawyers came in and took the case before Yutico's trial. They did not follow up about getting the cellphone records, and so Yutico went to trial without any alibi evidence.
GROSS: I'm trying to imagine what it was like for Yutico, knowing that all the evidence that he had in his favor, his alibi, which would have been, like, physical proof of where he was just, like, disappeared.
BAZELON: I mean, I think it was horrible. He was really worried about it, and he was so worried that he was really thinking about pleading guilty on the morning of the trial. He'd been offered a 12-year prison sentence for pleading guilty. And, you know, it's hard to imagine, at least for me - I think for many people - pleading guilty to a crime that you didn't commit, which is what he says. But in this kind of situation, where you're facing effectively a life sentence if you go to trial - because that's what the prosecutors were saying would happen - versus 12 years, it can be a rational decision to make to plead guilty even if you're innocent. So Yutico says he came into court that morning. He had talked to his dad about it. His dad was saying, this is just too big a risk for you to take; you could gamble your whole life away. And so Yutico says, yeah, I was really thinking about pleading guilty that morning because it just seemed hopeless.
GROSS: And are plea offers like this coercive in the sense that, had he not been offered a plea - 12 years if you plead guilty, a 60-year sentence if you're found guilty - if it wasn't for the plea, do you think the sentence would have been that high?
BAZELON: Yeah, that's a great question. I mean, in Louisiana, the law allows prosecutors to do this as long as - or especially if a defendant like Yutico has a prior record. And so that single nonviolent drug offense meant that the prosecutors could threaten this incredibly high sentence and that it was very realistic that a judge was going to mete out a sentence like that. Whether that's coercive or not, you know, I think there - I think that's a matter of opinion.
What I can tell you is that it's constitutional in the eyes of the Supreme Court. Defendants, starting in the 1970s, really asked to challenge this practice. They've said, you know, this is coercive, and it gives prosecutors so much power if there's no limit on the sentence that they can threaten. And the Supreme Court basically said, too bad; if the law allows prosecutors to say there is going to be this huge sentence if you choose to go to trial, well, that might burden your right to go to trial, which is in the Constitution, but it's not something that is such a burden that we're actually going to limit prosecutors in any way. And that's still the law.
GROSS: The DA in New Orleans at the time of Yutico's trial and sentencing was Leon Cannizzaro, and his office prosecuted Briley. What was he known for?
BAZELON: He was known for being really punitive and for using this habitual offender statute, which allows prosecutors to threaten effective life sentences much more often than most other district attorneys, even in Louisiana. So yeah. He was known as a really hard-charging prosecutor. He'd also gotten some national attention because at one point, he was putting people in jail if they brought a domestic violence complaint but then refused to testify. So the idea was, OK, you're a domestic violence victim. We want you to testify. If you refuse, we're going to put you in jail until you cooperate.
GROSS: OK, so you have a DA who is known for being, you know, very tough and for long sentences. Who was the judge in the trial, and what was he known for?
BAZELON: The judge in the trial was named Franz Zibilich, and he was also known for being tough. He'd been on the bench for several years when Yutico's trial occurred, and he had a reputation for moving cases along quickly and efficiently, which he thought was a big plus. In Yutico's case, what that meant was that Yutico went to trial only five months after he was arrested. And on the morning of the trial, the new defense lawyers came in, and they said, we need more time to prepare; we filed a notice that we're planning to put on a alibi evidence, but we don't have that evidence yet. And the judge said, too bad; you're asking too late; we are going to trial today.
GROSS: Had it not been for you and Lara, your sister, he'd still be in jail facing the remainder of a 60-year sentence.
BAZELON: Yeah, I mean, I think one of the lessons of this case that's so important is that undoing a conviction is often far harder than preventing it in the first place. So if you think about a trial, to win at a trial, the state has a very high burden of proving guilt beyond a reasonable doubt. Once you move on to an appeal, the burden shifts to the defendant, and the defendant has to show that something in the process went very wrong in order to justify the trouble and expense of starting all over again with a new trial. So this trial, you know, Lara argued and I think convincingly showed, really wasn't fair for all the reasons we've been talking about. But when Lara got the case, it was enormously hard to get back into court to put on the kind of evidence that would convince a new judge to start all over again. She really had a huge amount of work to do.
GROSS: So getting back to your 2019 book, "Charged," it was about how prosecutors were gaining so much power in the criminal justice system and using it to put people behind bars, often with really harsh sentences, leading to more and more mass incarceration, and that a lot of it was impacting mostly Black and brown neighborhoods. But there's also now a movement of progressive reform prosecutors who are trying to reform the criminal justice system and find alternatives to mass incarceration. There was an election in 2020 in which some progressives in New Orleans were elected, and that was a turning point for your sister Lara and her attempt to appeal the case. So who was replaced and who was elected that made it such a turning point?
BAZELON: Yeah, so there's this campaign going on for district attorney and for a new judge in New Orleans with these two challengers who are running on progressive platforms. So you have Jason Williams, the City Council member who's a defense lawyer. He's running for district attorney. And then you have this former public defender named Angel Harris, and she's running to replace Judge Zibilich. And Lara and I are watching these campaigns at this moment where it just seems like Yutico's appeal is pretty hopeless. And then the voters of New Orleans, by substantial majorities, they elected Jason Williams, and they elected Angel Harris. And all of a sudden, there is, like, this opening. It really was an incredible lesson in how much elections matter.
GROSS: So what changed in terms of Yutico Briley's case with the new progressives?
BAZELON: So Lara asked to talk to Jason Williams about Yutico's case, and I asked to come along as a journalist. And so Lara sat down with Jason Williams, and she laid out the case, and it was just a completely different reception than she had previously gotten from Cannizzaro's deputies in the office. Jason Williams asked a lot of questions. He was concerned about the victim. You know, in a lot of ways, he saw this show-up ID procedure the police used as really setting up the victim for failure. And he was concerned about Yutico Briley. He said to Lara, this case has all the things. And I think what he meant by that was racial injustice and an innocence claim and excessive punishment. And, you know, Lara and I walked away from this meeting, and we both had this feeling of like, wow, there might be some hope for Yutico. I mean, it was really the first sign that there might be some hope.
GROSS: What was she able to present on appeal that helped win his exoneration?
BAZELON: Well, I think one piece of evidence that was important to the district attorney's office were tapes of the calls Yutico made from jail when he was first arrested. You can hear him on these calls really begging his first lawyer and people who worked for him to get this alibi evidence, just professing his innocence from the start in a way that suggested that he really did want to get this alibi evidence. Everything he had told us about the case was true. It all kind of panned out and matched up with what he was saying on these calls. And then I think Lara was able to show just this cascading series of errors that had been made.
One of the ways that she characterizes this case was to talk about a kind of casual indifference on the part of almost everyone who touched it. And I think when she laid that out for this new district attorney and this new judge, it just seemed like Yutico was sitting in prison because of a whole bunch of mistakes and because nobody had really cared that much about whether he was innocent or guilty.