Wrong Man: How Do You Right Wrongful Criminal Convictions?

Director Joe Berlinger sits for questioning about upcoming Starz documentary series Wrong Man.

In November 1995, Jose Arreola was shot twice in the head at close range as he sat in a truck parked outside his Sunnyside. The 24-year-old father was killed right in front of his girlfriend and their baby. Police arrested Evaristo J. Salas, a suspected gang member. Salas was 14 at the time. The Yakima County Superior Court jury deliberated for two days before finding Salas guilty of first-degree murder and illegal possession of a firearm. He was sixteen. The new Starz series promises to find if he was the Wrong Man.

Besides Evaristo Salas, who was sentenced to 33 years in Washington state prison, the series reopens the case of Christopher Tapp, who confessed to a particularly brutal sexual assault and murder that the mother of the victim believed was coerced by police. They also profile Curtis Flowers, a Mississippi death row inmate who has been tried six times for the same crime by the same prosecutor.

The six-part documentary series comes from Paradise Lost and Judgment Day: Prison or Parole? director Joe Berlinger, who directs the first two episodes, and executive produces the series. He is joined by legendary criminal defense and civil rights attorney Ronald Kuby, former prosecutor Sue-Ann Robinson, retired NCIS investigator Joe Kennedy, and Detroit Homicide Task Force member Ira Todd.

Berlinger directed the upcoming feature film Extremely Wicked, Shockingly Evil and Vile, which tells the story of serial killer Ted Bundy, played by Zac Efron, through the eyes of his longtime girlfriend Liz Kloepfer, played by Angela Sarafyan. The cases examined on Wrong Man may seem as open and shut as the Bundy case was, but critical flaws allowed the convicted to sit in prison for decades. The movies tell us that everyone in prison swears they are innocent. The inmates all reached out to Berlinger specifically because of his reputation for uncovering hard and elusive truths. Den of Geek called Berlinger in for questioning.

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Den of Geek: Thanks for doing this. I think the last time we spoke was for your Whitey: United States of America v. James J. Bulger  documentary.

Joe Berlinger: Oh, cool, right, yeah.

But I’ve been watching. I still have to watch your Tony Robbins one and your Investigation Discovery documentary on Killing Richard Glossip. What is the main difference between doing shows like this for ID and for Starz?

I think the big difference is that ID has commercial breaks and Starz has no commercials, so with the Starz show, it’s just a slightly different approach. When you’re doing a show for Discovery ID, or for any basic cable network that has commercials, it has a different structure and format, taking into account commercial breaks and therefore when you come out of the break you have to recap and when you’re going into the commercial break, you leave on cliffhanger. There’s much more of filmic approach to the Starz series, whereas the ID series is more “television” and conscious of being interrupted by commercials. I enjoy making programs for multiple networks.

Actually, in watching the Starz one, I noticed how similar it is to the HBO show True Detective, which is not a documentary. When you’re filming things like this, how do you see the arc when you’re first going into the investigation?

What I really wanted to do is have a real-time, unfolding experience so that you feel like you’re in the middle of something as it’s happening. Of course, you don’t know what the outcomes gonna be. Stories like this, you jump out a window and hope there’s a mattress on the other side to catch you. You can’t predict how the story’s gonna go, but that’s the feeling you want to give the viewer. Not dissimilar to Paradise Lost and some of the series that I’ve done.

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I spoke with Joe Kennedy and Rob Kuby yesterday. How did you assemble the team, did they come to you or were they recommended?

I wanted a diverse mixture of people who had different expertise. I looked at a bunch of resumes and did a lot of interviews. I was actually at a screening right around the time I was starting to think about assembling a team, and bumped into Ron Ruby, who I’d long admired for his civil rights and wrongful conviction legal work. We were at benefit screening of something else. It was like kismet because I was just thinking I need a prominent lawyer, a defense attorney who has worked in this space. Ron was a known quantity off the bat because I think he’s done amazing work in this space. He’s very passionate in his analysis. I think he has a great view and understanding of the problems and pitfalls of the system. I think he has a world’s view about respecting the system that I agree with. He was immediately picked.

Then, I knew I had to fill it out with people of different expertises. I interviewed a lot of people, looked at a lot of resumes, and at the end of the day, we needed somebody with cold case background and found Joe Kennedy, former NCIS investigator. He has the federal law enforcement perspective. He embodies the FBI. He’s a cold case specialist. He fits the bill, for me, of a guy who had expertise in cold cases.

Then, I thought, I needed a tough beat cop, beat cop’s not the right word: Detective. Who had good interrogation skills, because it’s not often that defense attorneys work together with law enforcement on these cases. Usually they’re adversaries. I knew I wanted a veteran detective/cop on the team. I looked in a lot of different places. Being a homicide detective in Detroit you’ve put in your time. You’ve logged your hours flying the plane.

He also has a specialty in interrogation and I thought that would pay off, and in fact it did, because through his interrogation skills, that we actually got a paid, confidential police informant. Not paid by us, but paid by the cops at the time to convict Evaristo Salas. We got the paid informant to actually recant his testimony and admit that he was lying back at the original trial two decades before. I attribute that to Ira’s great interrogation skills. Interrogation doesn’t mean you have to be a tough guy. Interrogation sometimes means sweet-talking people into give you what they want. He’s great at that.

Sue-Ann Robinson, I thought, was an interesting candidate because she was a former prosecutor and now is a defense attorney who has handled the most wrongful conviction cases. I didn’t see a lot of former prosecutors turned defense attorneys who had wrongful conviction experience. She’s a female and she’s a person of color and some of these cases involved, frankly, race as a core element, particularly, obviously, the Curtis Flowers case. I found that perspective, a female, persona of color, with experience both as a state’s attorney and as a defense attorney would be a terrific asset to the team.

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All in all. I think we had a great team.

Actually, I thought that Ira’s gotcha questions in the Evaristo Salas case were high points. You’re right, it was complete sweet-talking, it was blue talking to blue.  What happens to a lead detective like Detective Sergeant Jim Riverd after it comes out that he paid an informant?

He denies it, of course. He has a right to defend himself. We’ll see. This is not trial, even though I’m trying to shine the light on these abuses and these potential disparities of justice. This is not trial by television. We investigated. We uncovered certain facts, and it’s really up to the authorities in Washington, to look into our allegations. If they sit on the sidelines and do nothing about it, that is very telling.

Did you expect to find things like prosecutorial misconduct and paying informants when you were going into it?

Sadly, yes because with my Paradise Lost experience and my other shows, I did a show called The System, I did a show, as you mentioned, Killing Richard Glossip. I did a series last summer called Gone: The Forgotten Women of Ohio, which involved some corruption from the authorities. Sadly, this happens all the time and that’s the larger point of the show. Even though the “enjoyment” of the show is a he-done-it or did-this-guy-do-it type of format, the larger social context of the series is for people to understand that coerced confessions, faulty eyewitness identifications, prosecutorial misconduct, racial inequality are factors every day in many, many, many convictions in the country. Even if somebody is guilty, we have to ask ourselves, do we want a system of justice in which these factors can play a role?

Talking about the Curtis Flowers case, tell me a little bit about the different judicial experience that black and white America has?

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We know there’s great racial inequality in the judicial system and a far greater percentage of minorities sentenced for crimes that white people get lesser sentences or probation. In this case, I think it was a rush to judgment for a suspect because of the color of their skin. A sensational murder of four communist white people in the Deep South led to a tunnel vision of convicting the black former employee. It’s a case where it’s been tried six times by the same prosecutor, which in and of itself should raise red flags. I think race played a huge role in this case.

Actually, what would you like defense attorneys to get out of this, to learn from this series?

I think any defense attorney who watches the series knows the abuses that go on in the system. I don’t think there’s anything that enlightening for a tried-and-true defense attorney. I think this is a struggle they encounter every day. Underfunding of the defense, prosecutorial misconduct, police mishandling of evidence, false confessions, this is just a fact of the life of a defense attorney. Again, by the way, I’m not saying that every person on the police force is bad and that every prosecutor engages in misconduct. There are many, many people in the criminal justice system who are dedicated to justice. Bad things happen. Really, what I want is less about what defense attorneys will get out of this, but more about what the general public will get out of this series. Even if somebody is guilty, you can’t let the system that relies on inappropriate and sometimes malfeasance to procure a verdict because it results in the innocent being convicted.

Since DNA technology has become available, over 350 people in this country have been exonerated from crimes they didn’t do. Twenty of those people were on death row. That means we have a system of justice that was willing to execute 20 innocent people. That’s just DNA technology. Most cases don’t involve DNA and I specifically picked non-DNA cases. DNA is not an exact science. Most cases don’t involve DNA and this is where all of the abuse comes in, from false confessions and faulty eyewitness identification to prosecutorial misconduct to the withholding of exculpatory evidence. That’s where the problems are.

I want the general public to be aware of these things so that we can advocate for reforms in the legal system because the average person, who is lucky enough to not encounter the criminal justice system, some of these things might sound unbelievable, like why would somebody falsely confess to a crime they didn’t commit? It sounds counterintuitive, but when you see the Chris Tapp interrogation and you see how that unfolded and you see when somebody spends multiple sessions and many hours of interrogation, at a certain point they get worn down and they’ll say whatever they need to say to get out of that pressure of the moment, thinking they can undue it later. These things happen. It’s counterintuitive for most people to think eyewitness identification can be flawed or paid for. One would think that eyewitness identification is rock solid, but it is often deeply flawed. 40 percent of eyewitness identification have been demonstrated to be false. Therefore, you need corroborating evidence.

The defense attorney watching this certainly knows these problems. It’s the average viewer. I want them to understand how flawed our justice system is so that we can have a keen awareness of reform so that less people become wrongfully convicted.

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I have a friend who has done sports documentaries. She’s now chasing a cold case story that has a possible coverup because a suspect is related to a high ranking judge. What advice do you give a documentary maker going after something so difficult?

Get your facts straight and keep digging.

Wrong Man premieres on June 3 at 9 p.m. on STARZ.

Culture Editor Tony Sokol cut his teeth on the wire services and also wrote and produced New York City’s Vampyr Theatre and the rock opera AssassiNation: We Killed JFK. Read more of his work here or find him on Twitter @tsokol.