Witches of Scotland - EPISODE 58 - DAVID RUDOLPH - AMERICAN INJUSTICE

00:00:00.160 Hi, I'm Clare Mitchell, QC. Welcome to the Witches of Scotland podcast.

00:00:05.220 I'm a lawyer who specialises in miscarriage of justice cases,

00:00:08.740 and we're bringing you this podcast because we want to tell you

00:00:11.560 about the women who were accused, prosecuted, convicted

00:00:15.240 and ultimately executed as witches in Scotland.

00:00:18.800 I'm Zoe Vendetotsi and I'm a writer who's always had an interest in the witches

00:00:22.760 and I feel that this dark mark against Scotland needs a reckoning.

00:00:26.720 The campaign Witches of Scotland wants three things.

00:00:29.580 Firstly, a pardon for all those convicted of witchcraft.

00:00:33.120 Secondly, an apology for all those who were accused as witches.

00:00:37.440 And finally, a national monument in recognition of all those who were affected by this terrible miscarriage of justice.

00:00:44.420 Over the forthcoming weeks, we'll be talking to a whole host of experts about the history and the modern day connections to the witches of Scotland.

00:00:53.820 Hello and welcome to the Witches of Scotland podcast.

00:00:56.980 it'll be no surprise to our regular listeners to know that today's episode is number 58 in our

00:01:03.460 six episode series. Claire, hello. Hello Zoe, how are you? I am fine, thank you very much for asking.

00:01:11.500 What's going on with you? Well, do you mean what's going on with me personally or do you mean what's

00:01:16.840 in the news? Well, I was trying to do it in a slightly more subtle way today but yes, Claire,

00:01:22.900 what's in the news what's going on first thing in the news is that on the 21st of may we are going

00:01:31.880 to be in glasgow at i write doing a great live show with jenny fagan about our new book hex

00:01:40.980 yes this is very exciting and my understanding is the ticket sales are going very well but there

00:01:46.380 are still tickets left so if you want to come along have a look on the i write links and you'll

00:01:51.960 find tickets for it so it's it's cool actually because it's you and me we're going to be

00:01:55.820 interviewing Jenny Fagan on stage now Jenny Fagan is a very celebrated Scottish author

00:02:01.440 and she has is tackling the issue of the witch trials in her latest book which is I guess it's

00:02:09.060 a novella called Hex where she's writing particularly about one particular witch

00:02:14.560 in inverted commas from history and about links to sort of the modern day with that one which I

00:02:20.020 think's pretty interesting so that'll be good and Jenny's always really good and interesting to

00:02:23.820 listen to so I think that'll be a great event actually. Yeah what I'm looking forward to is

00:02:29.380 that not only do we get to speak to Jenny about her book but we've got an opportunity to ask people

00:02:34.820 if they want to ask us anything and want to ask Jenny anything about her book so that'll be quite

00:02:40.580 fun if we build in some time for people to ask questions. Oh yeah definitely we'll definitely

00:02:45.160 be doing that I think that'll be really fascinating so that'll be good that's that's next

00:02:49.060 saturday the 21st of may in glasgow in the mitchell library in the theater in there so please do get

00:02:55.460 tickets and come along and listen to jenny fagan talking about hex but also there'll be a chance to

00:03:00.660 talk to us too um if you if you wanted to do such things and why you would i don't know really you

00:03:05.620 would have thought the amount of burbling you and i do on this podcast to put people off wanting to

00:03:09.860 start a conversation with us but you never know there might be somebody that's lonesome and wants

00:03:14.800 to talk to us but that'll be good i'm looking forward to that so that might be the opportunity

00:03:18.500 to meet lots of people we've not actually met IRL before yes IRL the next thing in the news and it's

00:03:25.240 an annoying thing for us is that yeah there has been a batch of merch which has gone out some

00:03:33.820 people thought perhaps it might be magic mugs they've been sent it's gone out and unfortunately

00:03:39.360 instead of having our branding on it is completely blank which is I know highly annoying so just to

00:03:47.040 be really clear here the mug production and the merch production generally is not done by Claire

00:03:52.060 and myself you might be surprised to know seeing as we're such a two women band that is the that

00:03:56.820 is one thing that we don't actually do ourselves so Claire and I aren't sitting at home hand

00:04:01.040 painting mugs so it's not us that's done it wrong although at this at this week we might have to

00:04:06.380 start hand painting mugs what we've done is we've contacted the company that deals with the merch

00:04:11.980 and we've told them that we'll switch off our merch until they get this sorted but if anybody

00:04:18.980 has got a mug which is blank please contact fanhelp at spri.ng so so the second word looks

00:04:32.620 as if it spells spring but it's f-a-n-h-e-l-p at s-p-r-i dot n-g and we know some people that

00:04:43.100 have already done that and they've got back to them and they've just refunded them by paypal

00:04:48.000 and don't have to send the mugs back so please do that bring it to their attention by emailing

00:04:54.960 that address and obviously asking for a full refund and you don't have to get involved with

00:05:00.300 you know having to box up things and send them back that's such a hassle so we're really really

00:05:05.560 sorry that that's happened to anyone and please do chase it up because we obviously don't want

00:05:11.520 you to have to be buying blank mugs because that's not what you ordered no that's not ideal

00:05:16.780 and once we get it all sorted and they confirm it's all sorted we'll switch the merch back on

00:05:21.900 again fantastic okay because we do we really do appreciate when people buy the merch because

00:05:27.180 the money doesn't go to us it goes towards um lovely david who is doing the sound recording

00:05:32.840 and i mean just to be just to be really clear we don't get a massive markup on the merch either

00:05:38.680 i think if claire and i were to actually buy a whole bunch of mugs from poundland and paint

00:05:43.200 them ourselves we'd probably make a bit more on it to give to david but it is really great that

00:05:47.340 there's anything that's going to david i feel really like increasingly terrible about

00:05:51.780 the amount of labor david is doing for us yeah well we should be feel increasingly bad today

00:05:59.680 because we're recording this obviously as we do in advance and david's going to be editing this

00:06:05.440 today on his birthday so happy birthday david happy birthday david we raise a virtual white

00:06:12.380 mug to you thank you just a completely plain white mug completely plain yes we could we could try and

00:06:19.660 spin that and say that it's like a metaphor for the innocence of those accused. I like that but

00:06:25.200 I think a cynical marketing move I think. Yeah most people that have ordered them would prefer it to

00:06:31.200 have the logo on it that they've chosen. Fair enough, fair enough. So apart from that what were

00:06:37.940 you up to yesterday dear Clare? Well fantastically I went up to Brechin and I am embarrassed to say

00:06:44.720 that in fact I have never been to Brechin before and it is a beautiful place it really is a lot of

00:06:52.340 really old buildings there's a beautiful bit on the water really lovely but I didn't just go there

00:06:58.160 for a tourist visit I went there because yesterday on the 14th of March a new memorial was unveiled

00:07:07.240 this memorial is for people who were either accused or killed as witches and it names them

00:07:15.740 so it was fantastic we got there and we were told about this by Judith Langland Scott our friend of

00:07:25.160 the show and she did an episode about Witches of Forfer episode 30 and she is going to come Zoe

00:07:32.500 and do an episode catching up on the witches of Forfer but also she's been investigating some

00:07:38.240 people that were accused as witches in Brechen so she's going to come and tell us that. So what was

00:07:43.780 really good yesterday was there was a good turnout for the unveiling and in particular the local MSP

00:07:50.200 Mary Goodgen who is Cabinet Secretary for Rural Affairs and Islands she was there and she is

00:07:57.200 really interested in the history of women and the story of those accused of witchcraft so

00:08:03.760 she came along afterwards there was tea and sandwiches and scones available for folks

00:08:09.240 very nice yeah scones nice scones you say yes you didn't know about that Zoe I get all the perks

00:08:16.460 yeah if you can't notice me the scone side of it I might have been able to rearrange my child's

00:08:22.700 birthday um but she is really really interested really supportive and also we have to give a big

00:08:31.700 shout out to someone else who was there who was councillor jill scott and jill came up to me when

00:08:37.480 i was there and talking to some folk and she said i listened to the podcast so thanks very much we're

00:08:43.200 glad to hear that jill and we hope you enjoy this particular episode so thanks for supporting us and

00:08:49.980 for being there and thanks for being involved in this great project to memorialise those people

00:08:55.840 killed as witches. What we'll do later on we always do our part as you know Zoe about remembering

00:09:02.980 the people as witches and what we've asked Judith to do is if she wouldn't mind coming on and

00:09:09.320 talking a bit about them as I said in the future. So what we're going to do today is we're going to

00:09:14.980 at that part in the show remember those who are memorialized at Brecon but later someone's going

00:09:21.340 to come on and tell us the story of those accused at Brecon so we'll do that in a bit. Great stuff

00:09:28.300 okay and there was something else there was another news article that you wanted to mention.

00:09:33.520 Oh I wanted to mention the news article about infamous spoonbender Yuri Geller.

00:09:40.860 yeah this is we've talked about this off and on this week and claire just really wanted to see

00:09:47.600 infamous spoon bender i think in this uh in this what was the other thing he said cutlery

00:09:53.500 interferer cutlery interferer yeah he's just bending those spoons using his hands that's

00:10:00.180 what really annoys me it's like does anybody want their spoons ben ever what what is the purpose in

00:10:05.640 bending a spoon unless you're gonna bend the bowl part of the spoon so i can get more custard in my

00:10:11.180 mouth and delivery what's the point of bending the spoon now we should ask uri we should say look

00:10:16.980 see this like bending the thinnest part of the spoon we want your mugs let's not talk about mugs

00:10:23.920 so it's still sorry it's too soon it's too soon so anyway uri geller has bought an island as many

00:10:32.600 of us will know off the coast of scotland and it is called lamb island i think is correct yes so

00:10:40.800 it's a lamb island and it's and it's uninhabitable it's described as a rocky outcrop near north berwick

00:10:47.560 in east lothian so apparently in the past he's spoken about there being suspected egyptian

00:10:54.260 treasure hidden on the island because as we know the egyptians did a quick detour up to

00:10:59.720 east lothian when they were doing building their empire and he has now revealed

00:11:05.720 that there's traces of what's described as witch bones which allegedly scatter the surface

00:11:14.260 geller 75 told metro.co.uk hundreds of years ago there were witches in scotland and england

00:11:21.960 and we all know what happened to them well and point of fact they weren't witches yuri but

00:11:26.680 carry on and there were witches near north berwick where my island is the rumor of these

00:11:31.240 witch bones emanated from a very important person so i can't say who but they say there are remnants

00:11:37.540 of these witches on lamb island i've never spoken about this before ever just stick the cutlery

00:11:44.680 yuri leave it alone i hope he's not going to start bending bones he bought the island from

00:11:50.500 an entrepreneur called Camilo Agassin Pereira for £30,000. And he's basically, I mean, one good

00:11:57.720 thing is in this article, he has praised Nicola Sturgeon for apologising to women on International

00:12:04.180 Wednesday, of course, on the back of our campaign. And he said, so that's very good. It's a good thing

00:12:08.240 in history. But I think he's a wee bit confused about the issue of them being like just people

00:12:13.740 that were accused. So I don't really know. It doesn't say very much else really about what the

00:12:20.100 bone situation is yeah I have questions very lacking in detail this article altogether so

00:12:26.060 are they is he saying that there's like bits of human bones scattered on the island or is it just

00:12:31.220 like it is in the house graveyard where Claire and I have been many times to have our photograph taken

00:12:36.720 where there are bits of human bones strewn about there but that's because rabbits have dug them up

00:12:42.240 and you can see like you know bits of spine or like what looks like a finger bone or something

00:12:47.960 lying around is it that if it's uninhabitable how did the bones get there this just sounds like a

00:12:53.560 lot of hooey yeah yeah he is just saying oh there were witchcraft trials in scotland there were

00:13:00.960 witches i've bought some rock for 30 grand and now i'm going to get some publicity off it by

00:13:07.820 tenuously attaching it to the witchcraft trials you think he's planning on like getting people

00:13:13.400 out there on boats to go and feel the vibes i don't know please don't give him any ideas well

00:13:19.300 he apparently lives in israel so i'm not really sure like what the story is i don't think he's

00:13:23.360 planning on building like a little bothy or anything on the island it's just really weird

00:13:27.760 i suppose if he's bought you know some kind of rocky outpost for 30 grand he's not gonna say 0.99

00:13:34.040 i've just bought a rock there might be some rabbit shit on it he might say as well as rabbit shit 0.98

00:13:39.500 there's also witches bones and egyptian treasure do you know i think he might be doing i think he 0.98

00:13:44.480 might be i mean he's got to have a lot of cutlery that's unusable just now and he probably needs

00:13:49.860 somewhere to store them all yeah so maybe he's sprayed all the spoons gold and is pretending

00:13:55.460 that that's egyptian treasure i think that's it i think that's a live possibility honestly

00:14:02.360 it's just daft but i am glad that he recognizes the apology and thinks that that's a good idea

00:14:07.240 so that's something that's good but stop calling them which bones if there are any bones in that 0.66

00:14:13.100 island the only bones there will be are you know either human or mammal or fish but not which

00:14:20.820 they might be like you know how sometimes when they find bones in scotland on the shoreline

00:14:26.700 and people think it's a human but actually it's seal bones like seal flipper bones yeah like

00:14:32.500 yeah it's probably that i've watched enough tv to know this nonsense

00:14:37.040 so that's the news for this week so going back to breaking claire shall we name the people that

00:14:44.480 are on the memorial that was unveiled yesterday yes we should probably see what the memorial

00:14:49.520 looked like in fact well yeah we've put pictures up on facebook i think and maybe on twitter

00:14:54.980 worth seeking out the picture isn't it it's just a very plain granite stone it probably comes up to

00:15:00.800 sort of just above your knee level in terms of height and it's got the names of the people

00:15:05.800 recorded on it which is really really great. So the memorial records the names of those who were

00:15:11.540 accused of witchcraft in Brechin. They were Marat Merchant, Janet Cooper and Catherine Skier. They

00:15:19.860 know that those three people were accused and executed. And then there's a list of people who

00:15:26.700 received what's described as non-capital punishment so we know from previous guests that

00:15:30.680 that might mean somebody being banished and having to leave town and then of course they would turn

00:15:35.820 up somewhere else and there'd be a bit of gossip I'm sure about that so I don't know it would be

00:15:40.380 interesting to trace people that had non-capital punishment if anything happened to them further

00:15:44.920 along the line I'm not sure how we'd do that but anyway on the breaking memorial those people that

00:15:49.560 did not receive capital punishment were James Shanks, Thomas Kinnear, John Christensen, Isabel

00:15:55.900 Remy and Thomas Humble and then there's a list of people that says those below their fate unknown

00:16:02.240 and they were Janet Gardner, Janet Cooper, John Donaldson, Isabel Fordell, Catherine Walker and

00:16:10.560 Elspeth Gray and these all happened I think it's worth mentioning most of them were sort of like

00:16:16.040 1649 and 1650 but there is one I think it says 1618 and one that says 1659 so they were

00:16:25.660 there were a couple of outliers at the beginning and the end of that as well but there was clearly

00:16:29.680 a spate of accusations and what we know from judith langland scott who'll come to us and speak

00:16:36.300 about this is that isn't in fact a complete list of people there are some more and interestingly

00:16:43.500 enough she has discovered a link with her family line and one of the people who are not on the

00:16:50.120 memorial but they're not stopping there with regards to remembering these people and in fact

00:16:55.000 apparently there's going to be a pamphlet and also a notice board so other names may be added

00:16:59.860 as they're found. Great okay so we remember those people from Brecon and we'll have Judith on in

00:17:07.120 the future to talk a bit more about it. Okay so our guest today is actually very exciting and

00:17:12.760 actually Claire it's quite Hollywood isn't it our guest for today? It's very now and very Hollywood

00:17:18.080 because the person we're going to talk to today so you may remember from the origin story of the

00:17:23.940 Witches of Scotland campaign and podcast that Claire and I met and bonded over a love of true

00:17:29.120 crime so anybody that is interested in true crime will probably know who this person is because you

00:17:34.660 will probably have watched the documentary series The Staircase which has now been made into a drama

00:17:41.140 that is on I believe Sky I've not watched it yet but I'll be very interested to see what that's

00:17:45.420 like starring Colin Firth and Toni Collette and you'll probably know that it's a story about a man

00:17:51.340 that was accused of killing his wife when she was found dead at the bottom of their staircase

00:17:55.580 it's a really interesting there's two documentaries I think and it's really interesting because it

00:18:00.720 really goes into the ins and outs and the legal side of everything and it follows all the court

00:18:05.480 cases and so on really worth looking at and our guest today is in fact David Rudolph who it was

00:18:13.000 the lawyer for the man that was accused in the staircase so Claire you knew of him before didn't

00:18:18.740 year yeah we've had David Rudolph over to Scotland before to do a talk for us and he was absolutely

00:18:25.580 excellent and what happened is David has a new book out called American Injustice and I was

00:18:31.100 reading it it's brilliant it goes through the stories of why people can't get justice in the

00:18:37.740 American legal system and why a lot of the time things which should be just and fair just aren't

00:18:43.660 they don't play in favour of those accused of crime. And it means two things. It means that

00:18:48.780 innocent people get convicted and it means that guilty people get away without punishment because

00:18:53.400 innocent people are being convicted for things that they haven't done. So his book was fascinating

00:18:58.380 but part of the book I was particularly interested in and why I wanted to speak to him was about

00:19:04.420 forced confessions. In the cases of the witch trials of course people confessed to things that

00:19:12.500 they hadn't done and he has a few great chapters on why people do that so I thought it would be

00:19:18.320 great to have him on to ask him about that and also to ask him more generally about not only

00:19:23.760 Salem but about what it takes to have a fair trial. Fantastic and he's a really interesting guest

00:19:29.540 so his book has been described it's called American Injustice it's been described as a

00:19:34.640 searing critique of the way power is abused in America's criminal legal system based on first

00:19:39.660 and experience it's really really fascinating and really disturbing and it's just really

00:19:45.900 horrifying when you look at the all the ways in which a system that should be above and beyond

00:19:51.280 reproach is so twisted basically and so against the favor and the odds of the people that are

00:19:58.240 accused often it's really really horrifying so he's a fantastic guest and we started our

00:20:04.240 discussions by asking David to introduce himself. Yes, my name is David Rudolph, and I am a criminal

00:20:16.700 defense lawyer and human rights, civil rights lawyer in the United States. We're really delighted

00:20:22.960 to have you on the podcast today. It's really great because, of course, we've mentioned already

00:20:27.220 that you are in that fantastic documentary that came out, The Staircase. So I know that Claire

00:20:33.440 and I when we first met we bonded over an interest in true crime and how that's represented so we'd

00:20:38.440 obviously both watched that and we know a lot of our listeners will be very keen because there is

00:20:42.800 definitely a crossover. Can you tell us what your new book is about and why it would appeal to

00:20:49.280 listeners of the Witches of Scotland podcast do you think? Well it's about a number of wrongful

00:20:54.820 convictions so it should certainly appeal to your listeners and what I tried to do in the book was

00:21:01.280 tell the stories of everyday people who were caught up in wrongful prosecutions and convictions

00:21:08.940 and to explain in human terms not in technical terms sort of what happened to those people

00:21:15.920 how it happened why it happened and hopefully to provide some insight into how we can prevent

00:21:22.520 those sorts of things from happening in the future or at least minimize the number of those that

00:21:26.360 happen yeah it's quite horrifying when I was reading your book in preparation for this some

00:21:29.940 of the statistics about people that have been released who they've realized over the last

00:21:34.460 several years were not guilty of what they were sent away for and the amount of years of jail time

00:21:40.040 that's all added up just for those people and that's probably just the tip of the iceberg

00:21:43.780 that there'll be people across the states that are innocent and are in jail it's really shocking

00:21:50.260 to me because I'm not a lawyer but really shocking to me that there was the one case in particular I

00:21:54.720 was looking at where the person had been sent to jail and he'd put in numerous requests for

00:21:59.800 DNA evidence and it just been ignored and that the police are able to just kind of go, I'm not

00:22:04.780 dealing with that, or that people can be contacted and said, look, here's new evidence and the police

00:22:09.740 can just ignore it. I just I'm so shocked by that. Well, you know, in the United States, at least

00:22:15.520 there's a great premium put on finality. The courts and prosecutors are somehow very frightened of the

00:22:23.980 idea that something that has already been closed, so to speak, can be reopened and their motives or

00:22:33.380 their conduct be put under a microscope. And so they talk about the fact that these can lead to

00:22:38.820 opening the floodgates of other people complaining of these things. But you're absolutely right.

00:22:44.660 The ones who have been exonerated are the tip of the iceberg, literally, because it's not easy to

00:22:50.940 be exonerated in the United States because there's so much emphasis on finality. And so when finality,

00:22:58.140 when the interest in finality trumps the interest in truth and justice, you end up with the sorts

00:23:04.660 of problems we have in the United States. Isn't it extraordinary, exactly the same in Scotland,

00:23:10.380 that finality is so important? And I don't get it. They say justice delayed is justice denied.

00:23:16.540 Okay, I can understand that. If you have to wait a long time to get justice,

00:23:19.740 you're not getting justice in the meantime. But why is it that it's all right that people who

00:23:26.100 are innocent of crimes remain convicted, which also means that people who are guilty of them

00:23:31.660 remain free? Well, that's exactly right. And I think people fail to recognize the flip side of

00:23:37.460 this whole issue, because the truth of the matter is that everybody, including prosecutors and

00:23:43.880 police have the same interest in avoiding wrongful convictions as criminal defense lawyers and

00:23:51.220 defendants do. You know, whenever somebody is wrongfully convicted, it means the actual

00:23:56.880 perpetrator is free to go out and victimize other people. But somehow that gets lost in the debate

00:24:03.880 over finality. And to be honest, I'm not sure why finality has been elevated to such a high level

00:24:11.980 because the system is a human system and humans make mistakes. So there is simply no reason to

00:24:21.320 deny that some of these cases have merit. And so if a case does have merit, you know,

00:24:28.520 there's just no reason to deny relief because of finality. And, you know, we did a podcast,

00:24:33.980 the second season of our podcast, Abuse of Power, is about a British citizen who was convicted in

00:24:40.860 Florida and has served decades in prison, although there is massive evidence that he is in fact

00:24:46.980 innocent. But the courts, that's not by itself a ground for relief. And that's sort of crazy to me.

00:24:55.940 I mean, you ought to be able to come into court at any point, prove your innocence and be released.

00:25:02.600 But that's not the situation in the United States, at least.

00:25:06.360 And people would be absolutely amazed about that. Now, we want to ask you some quite specific things about part of your book, which I find really interesting, which were the chapters on confession evidence and false confessions.

00:25:21.140 and they're really an excellent but quite harrowing read about false confessions but first of all we

00:25:28.220 want to ask you about what was probably the most famous historic miscarriage of justice which is

00:25:35.340 the Salem witch trials. Now when you're a student at university were you taught about the Salem

00:25:41.280 witch trials? You know we really weren't but we should have been. It almost ought to start any 0.99

00:25:48.260 course on criminal procedure and criminal law, because it's a classic example of how wrongful

00:25:56.660 convictions occur. I did a little bit of research before coming on today so that I could understand

00:26:05.200 a little bit better what happened during those Salem witch trials. And you're right, confessions

00:26:11.140 were sort of the coin of the realm, if you will, with those trials. You know, if someone confessed

00:26:17.680 It appears as though that was a route to avoid being hanged.

00:26:21.980 But if you didn't confess and you stood trial and the spectral evidence was such that, you know, the jury convicted you or the judges convicted you, you were hanged almost immediately.

00:26:34.900 There was no there was no appeal process, as best I could tell.

00:26:38.600 So it's the original sin of wrongful conviction in the United States.

00:26:43.160 isn't it because it's got the three things it's got wrongful conviction in terms of getting people

00:26:50.100 to confess to things that they haven't done by making the alternative words it's got expert

00:26:56.060 evidence that was rubbish so experts come in and give evidence which then turns out to be fake

00:27:02.660 expert evidence and at least though in the US what they had quite shortly after people were convicted

00:27:11.960 was exonerations, which of course hasn't happened here at all.

00:27:16.580 Well, the exonerations seem to have been spurred by just the governor of Massachusetts,

00:27:22.240 who apparently wasn't buying the tale that someone could be afflicted by a witch and

00:27:30.760 then see the apparition of the person and based on that could identify who had caused

00:27:36.240 the affliction.

00:27:37.380 He wasn't a believer in that.

00:27:38.660 And so even after a number of these people were convicted, he pardoned them, refused to sanction their executions.

00:27:47.080 And I think gradually that sort of led to an understanding.

00:27:51.200 And then all of a sudden people were being found not guilty.

00:27:55.700 You know, in many ways, and I don't know if you had this in Scotland, but, you know, in the early 90s, we had all these allegations of child sex abuse at various daycare centers.

00:28:08.660 And it was really similar.

00:28:11.180 I mean, these children made up these stories about daycare workers that were just fantastical.

00:28:18.260 But there was sort of a hysteria that took place and people were convicted and sentenced to long times in prison.

00:28:25.660 And gradually it turned out that none of this was true.

00:28:29.940 And those people ended up being exonerated in some cases.

00:28:35.300 History repeats itself, as we all know.

00:28:37.380 That's what I'm quite scared of as a criminal defence lawyer. I think I look at the witch trials and I see that what they had there was proper trials. 0.56

00:28:47.560 Like it wasn't mob justice. They brought people before courts. They had evidence led, even if the expert evidence was rubbish, but they had evidence led, which people believed.

00:28:58.560 They had witnesses, which people believed. So the structure of a proper trial there was there with the procedural safeguards that were there. But the difficulty is that if you fundamentally believe, I suppose, that these people were witches, you have what is still known this day as a bias towards simply believing what evidence supports it and ignoring what evidence doesn't.

00:29:24.040 Yes, to a certain extent, I agree with you. But I think the procedural protections were more imagined than real. What kind of trials were these? Were the accused represented by lawyers? I don't think so. Did they have any chance to cross-examine the alleged victims? No. Did they have any right of appeal? No.

00:29:44.880 So there was sort of a patina. Yes, they had a, quote, trial, but it really it really was in some ways just sort of a mock trial.

00:29:54.720 It was a it was a kangaroo court in the truest sense. 0.81

00:29:58.940 And once you were indicted, unless you confessed, I don't know that I read of anybody having been acquitted before the governor sort of stepped in and called the called bullshit on the trials. 0.79

00:30:15.720 And I think it was because the governor's wife became accused.

00:30:19.260 Exactly. Exactly. And isn't isn't that interesting?

00:30:22.260 it's like well i'll agree with all that witchcraft but wait a minute it's come to my door 0.74

00:30:27.940 so exactly it's now rubbish so one of the most important things in the witchcraft trials were

00:30:36.160 confessions and i was just about to say the same thing yeah no no i'm just because you mentioned

00:30:42.840 that there david you know your confession was mentioned and we've talked a lot previously on

00:30:47.580 the podcasts about the content of confessions and about how you can track that there are

00:30:53.700 particular sort of tropes that appear in different parts of Scotland where you know we know that

00:30:59.520 there were publications that were put out at certain points that would detail the witch's

00:31:03.220 confessions and they were quite lurid they were quite tabloid in some cases but what some people

00:31:09.000 keep coming back to which is you know at the time people came back to which was well why you know

00:31:13.980 if you haven't done it, why would you ever confess? And I think that the chapter in your

00:31:18.480 book, American Injustice, really goes into that and explains it very clearly why it is that people

00:31:23.820 make false confessions. So could you maybe outline that for us? Absolutely. You know,

00:31:29.120 it's simply a matter of human nature. People who can't imagine confessing to something that they

00:31:35.760 didn't do are generally people who are sitting in their homes. They've not been subjected to any

00:31:43.120 kind of pressure to say anything that's not true. But now let's imagine that you are, you know,

00:31:51.080 a young Black person in a rural town in North Carolina, and you've been accused of murdering

00:31:58.700 somebody, and you know that the jury is going to be all white, and they're going to be prejudiced

00:32:05.280 against you, and you're not from that area, so that magnifies the prejudice, and you're facing

00:32:13.720 the death penalty in the United States. Or, you know, in Scotland, you're facing, you know,

00:32:18.760 decades and decades of prison, and someone comes to you and says, if you'll confess to doing X,

00:32:26.000 we'll make sure that you're not sentenced to death, we'll make sure that you can get out in

00:32:31.040 10 years. And at that point, the pressure to confess, to avoid having to face trial and a

00:32:41.580 death penalty is pretty overwhelming. But let me make it even more basic. Let's suppose that you're

00:32:47.860 accused of a minor crime and you're put in jail in the United States. Bail is set and oftentimes

00:32:53.820 poor people can't make bail. And so they're sitting in jail awaiting trial. They're at risk

00:33:01.100 of losing their jobs, losing their house or apartment, losing their children. And now a

00:33:07.900 prosecutor says to their lawyer, listen, if he wants a trial and he's going to insist I'm not

00:33:12.860 guilty, I don't know when we're going to reach that trial. But if he'll plead to a lesser offense,

00:33:19.340 will agree to a sentence of time served and he can be out today. Now, you're that poor person

00:33:27.700 and you're faced with this choice. Plead guilty and you're out today or insist on your innocence

00:33:34.840 and we don't know when we'll reach your trial and you'll stay in jail until then. I think it's

00:33:39.880 pretty clear that most people in that situation would plead guilty because they don't have a

00:33:46.640 choice in a real sense. So what people need to understand are the pressures that are brought to

00:33:53.340 bear on innocent people to falsely confess and even to falsely plead guilty because they're

00:34:03.240 avoiding the greater danger. And it's a very rational decision. And so if you read the book,

00:34:10.700 I think you'll understand that it's not strange at all that there's false confessions. And indeed,

00:34:16.640 indeed, DNA exonerations has established that numerous people falsely confess and falsely

00:34:24.840 plead guilty and then are exonerated by DNA evidence. So we can't deny that it happens.

00:34:31.180 What we need to do is understand why it happens and eliminate those sorts of pressures.

00:34:36.600 And what you're talking about there is making a pragmatic decision based on

00:34:40.320 trial times and time served and taking a plea bargain. That doesn't even touch on the idea

00:34:46.200 of people being maltreated or mistreated into giving confessions.

00:34:51.180 Absolutely.

00:34:52.660 Right.

00:34:53.480 You know, of course, there are psychological pressures that are brought to bear.

00:34:58.580 You know, police in the United States are trained in how to put sort of psychological

00:35:04.880 pressure on people to admit things, to get out from under the burden of being interrogated.

00:35:11.480 You know, they're taught to separate people from their family, to separate them from lawyers.

00:35:16.200 to create a sort of alternative explanation that is less blameworthy. Oh, you must have been drunk.

00:35:24.480 You may not remember it. Perhaps you blacked out. And so they create these scenarios where it just

00:35:31.580 becomes easier for the person to say, yeah, that may be what happened, then to continue to insist

00:35:38.700 that they didn't do it and undergo more and more hours of interrogation. So it's all of those

00:35:44.220 things. But there is absolutely no question that innocent people confess to things they didn't do

00:35:52.840 and plead guilty to crimes they didn't commit. Indeed, there are instances where people have

00:35:59.360 confessed to murdering somebody and then the person shows up alive, you know, months or years

00:36:05.760 later. It's like a film. I mean, that's you can't even believe that that would that would even

00:36:11.160 happen. It has happened. And how does a lawyer such as yourself go about, or is it even possible

00:36:18.340 to try and reform the system so that there's a move towards fairness? Well, you know, I think in

00:36:25.100 Great Britain and England, at least, police have moved away from using the sorts of interrogation

00:36:31.280 techniques that are used in the United States. So that is some improvement. In addition to that,

00:36:39.040 Obviously, the whole notion of plea bargaining and rewarding people for pleading guilty is a major cause of wrongful convictions and false confessions.

00:36:51.420 So, you know, you need to to eliminate the now should somebody receive some credit for having accepted responsibility for what they did?

00:37:03.600 Sure. But the way the system is working in the United States, at least, is that the disparity between what someone gets if they plead guilty and what someone receives as a sentence if they go to trial and lose has become obscene.

00:37:22.400 At this point, sometimes it's a difference of decades and decades of prison.

00:37:27.900 You know, if you admit to this, you'll be out in five years.

00:37:31.560 If you go to trial and you're convicted, you're going to serve 50 years.

00:37:36.060 And so when disparity is that great, the pressure to falsely confess to something or falsely plead guilty to something simply to avoid the consequences of going to trial and losing is irresistible.

00:37:50.860 And so we have in the United States what we call the trial penalty. If you go to trial and you lose, you're sentenced infinitely more severely than if you plead guilty and admit that you did something. By itself, it creates an enormous incentive for people to plead guilty to things they didn't do.

00:38:13.300 And how much of this is encouraged because of the money, you know, the private prisons may and so on?

00:38:19.080 I don't know that that is a huge factor, to be honest. I mean, that's a whole other problem that we can discuss some other time. But look, you know, let's let's go back to to the Salem witch trials. You had exactly the same situation.

00:38:34.500 You know, all of these women, not just confessing to things that they didn't do, but then pointing the finger at other people.

00:38:45.080 And then those people refusing to confess.

00:38:48.620 So the people who confess and falsely accuse others, they're not educated.

00:38:54.700 They're not executed.

00:38:56.220 But the people who refuse to confess, who say they're not guilty, are the ones who are executed.

00:39:03.740 it's the same it's the same dynamic and once those people confessed and we know that confessions are

00:39:12.800 the most the strongest forms of evidence you can have because they are against your self-interest

00:39:19.100 again as you talk about in the book once people have confessed to something even in the face

00:39:25.280 of substantial evidence to show that they haven't done it pretty much just short of the person that

00:39:32.060 they have confessed to murdering turning up alive, the legal system, once again, really doesn't like

00:39:39.540 the idea of you being able to challenge that. Well, you know, partly is they don't like the

00:39:45.320 idea that false confessions occur, because it sort of indicts the whole system, doesn't it?

00:39:52.020 You know, obviously, there's something wrong with the system, if it is encouraging people or causing

00:39:57.680 people to falsely confess. So by recognizing that that happens, in essence, you're recognizing that

00:40:05.140 the system has some fundamental flaw. And I think that's a part of it, along with the notion of

00:40:11.640 finality. And if we're going to start allowing people who plead guilty to come in and say they're

00:40:18.040 not, you know, the floodgates are going to open. Everybody who's in prison is going to be coming

00:40:22.960 forward and saying, I really didn't mean it. You know, I'm not guilty. That's really interesting.

00:40:29.320 So if you plead guilty in America, are you not allowed to appeal against your conviction? Because

00:40:34.580 that's the situation in Scotland. No, you're not. If you plead guilty, that it's, as a matter of

00:40:39.920 fact, you have to waive your, in many jurisdictions, you have to waive your right to challenge the

00:40:46.680 conviction going forward by pleading guilty. What if somebody pleads guilty, and at the time they

00:40:52.800 were having like a mental like problem or they were coming off drugs or you know whatever there's

00:41:00.980 no facility for you afterwards to say look i was in a bad place then i would like to take back what

00:41:07.920 i said there's a carve out in these waivers if either the the lawyer representing the person

00:41:14.960 was providing ineffective assistance of counsel, or if there were circumstances that indicated the

00:41:23.280 person was not competent to enter the plea. But those are huge hurdles to get over. I mean,

00:41:31.480 truly huge. So for all intents and purposes, once you plead guilty in the United States,

00:41:39.800 you're pretty much done. Now, you know, there have been some movements recently for innocence

00:41:47.340 commissions to look at cases, even where people have pled guilty. And I think there's increasing

00:41:53.960 recognition that a guilty plea does not mean that there aren't issues to look at. But for the vast,

00:42:01.600 vast majority of people, the guilty plea is sort of the end of the line.

00:42:05.560 now i just want to check if that also relates to alfred please because i know that you sort of came

00:42:14.400 to general world prominence i should say when netflix showed the staircase but for those of us

00:42:21.140 that are interested in true crime we knew about it years ago we'd followed the the documentary

00:42:27.080 and seen you there but we understand that the person who was convicted of the crime in the

00:42:33.180 staircase, did so by his own hands by pleading guilty on an Alfred plea. That's a plea where it

00:42:39.880 says, I don't accept my guilt, but I see that there's evidence which a jury could accept and

00:42:47.020 find me guilty. Is that right? It's essentially that. And you know, when I spoke about Alfred

00:42:52.680 pleas in Scotland, the barristers who were on the panel with me were absolutely appalled

00:43:01.180 that I would allow my client to enter a plea of guilty when he was maintaining his innocence.

00:43:08.860 Donald Finley was on some of the panels with me and Don was he was just appalled. He said he would

00:43:17.080 never, ever do that. And so I guess our system in the United States is a little bit more

00:43:23.160 pragmatic and less principled, if you will, because I have no problem if somebody wants to

00:43:31.640 avoid the risk of trial or if somebody just doesn't want to fight anymore because they're

00:43:38.260 just spent emotionally, physically, financially, as long as the result is something that I think

00:43:45.300 is beneficial for the client and the client wants to do that, I don't have a problem helping them

00:43:51.100 do that, but I'm not sure that would go over very well in your system. Well, we do think that that

00:43:56.760 is really unusual, but I'm actually really coming round to the idea of it, to allow people to do

00:44:02.260 that if that's what they want to do. But in those circumstances, can those people appeal their

00:44:07.500 convictions if you plead guilty on an algebraic plea? No, they're treated exactly the same as a

00:44:12.880 guilty plea. It's an alternative. It's a very pragmatic American way of dealing with

00:44:20.440 the pressures of plea bargaining. And, you know, I guess, you know, if you don't have a trial

00:44:25.420 penalty, if someone is not punished more severely by going to trial than by not, perhaps there's

00:44:32.460 less incentive to allow offered pleas. But it's simply a recognition by the U.S. justice system

00:44:40.380 that, you know, there are times when somebody just doesn't want to go through the trial,

00:44:46.760 but is unwilling to say that they murdered somebody or committed some other crime.

00:44:52.940 And so it's a sort of jury-rigged way of getting to a particular result.

00:44:58.560 Now, I know that your whole career has dealt with miscarriage of justice,

00:45:04.200 but you've kind of shifted focus from dealing with the trial process

00:45:08.640 to dealing with the civil process that happens thereafter,

00:45:11.940 getting recompense compensation for people who have been wrongly convicted now in a sense the

00:45:19.460 witches of justice campaign is trying to restore people's names to them the witches of scotland

00:45:26.120 campaign it's not the witches of justice sounds like a marvel spin-off i call it the witches of

00:45:31.020 justice i like it clear quickly write that down write that down copyright it um the witches of

00:45:39.320 Scotland campaign is a justice-led campaign so many people when we have articles written people

00:45:45.020 go oh are you trying to get compensation why bother it's 100 years of old they can't get

00:45:50.500 compensation for it and we're like we know we can't get compensation we're just trying to do

00:45:55.700 what we can to say that those people weren't guilty and to record properly that they were

00:46:02.400 they suffered a terrible miscarriage of justice and to I suppose give them their name back as

00:46:08.040 people who were wrongly convicted. That's obviously something you care deeply about.

00:46:13.800 Can you explain to us why that is? Why you think it's important that people should have their name

00:46:18.880 restored to them? Well, I'll give you an example. It's one of the stories in the book. It's about

00:46:25.040 Tim Bridges. And Tim was wrongfully convicted. He was eventually exonerated. And we actually

00:46:32.440 secured a significant amount of money for him from the city of Charlotte. But the most important

00:46:41.560 thing to Tim was that the governor of North Carolina met with him in determining whether

00:46:48.040 he was going to be granted a pardon of innocence. And he and I went to the governor's office and

00:46:54.080 the governor spent about an hour with Tim talking to him and understanding what had happened.

00:47:00.360 And towards the end of it, the governor turned to Tim and he said, I just want you to know that I am really sorry that this happened to you.

00:47:10.560 And I apologize to you for what you went through.

00:47:13.720 And Tim told me afterwards that that was much more meaningful and important to him than the amount of money that we were able to secure for him.

00:47:24.200 because it was a recognition by the government, by the entity that had prosecuted him,

00:47:31.800 that he was not guilty. And that was just so important to him in letting him rebuild his life.

00:47:41.880 And so, yes, these people have been dead for many, many, many centuries. And yes,

00:47:48.240 they're not going to know that their name has been restored. But it's important, I think,

00:47:53.540 just for the concept of justice, that we all recognize that this is what happened to these

00:48:01.280 people, and they didn't deserve what happened to them. And we need to publicly acknowledge

00:48:09.160 that they were wrongfully convicted and executed in many cases. And whether their descendants are

00:48:17.540 still living or not, whether they even know that they're descended from these people or not,

00:48:22.840 there's a greater benefit, a societal interest, if you will, in righting a wrong that has occurred.

00:48:32.060 And so I think it's always, always important for the health of society, for us to recognize when

00:48:39.060 we've done wrong and to apologize in some form or fashion for what we've done. And I think that's

00:48:48.220 the importance of your campaign. That's really lovely to hear that you're a supporter of it.

00:48:53.940 Now, the Witches of Scotland campaign is looking for a national memorial. What do you think of the

00:49:00.540 idea about memorials and statues in relation to miscarriages of justice? You know, I think that

00:49:08.200 things like the Vietnam War Memorial in the United States, you know, I've been there. I've been to

00:49:17.020 the September 11th memorial in New York City, you know, where it's just water sort of pouring

00:49:23.120 into this whole, you know, infinity. And they are just incredibly moving testaments to

00:49:31.320 what happened. And they make you think and they make you reflect on the meaning of whatever the

00:49:40.880 event is. There's a similar memorial in Alabama that Ryan Stevenson created for the victims of

00:49:49.580 lynchings in the South. These are things that, you know, as I describe it, I'm sort of, I get

00:49:56.560 goosebumps because they make these issues come alive for people. They force people to think.

00:50:03.420 And so do I think just putting up a plaque is enough? No, I don't think that's enough. I think

00:50:10.140 there needs to be a memorial, some sort of a monument, if you will, that has meaning in and

00:50:17.280 of itself, you know, that epitomizes what happened. I don't know, you know, whether it's some sort of

00:50:24.600 eternal cauldron, you know, that calls forth what happened to people who were burned at the stake,

00:50:34.400 you know for being witches or but something that epitomizes and dramatizes and causes people

00:50:41.740 to really think about the horror of what this was is really essential as part of the healing process

00:50:49.840 and so I fully support the idea of doing something like that as part of your campaign

00:50:57.080 good yeah I mean that's what we were having a conversation earlier clear myself about what it

00:51:01.360 might be like and we were thinking that we just we want to have something that is that's provocative

00:51:06.580 you know that that provokes people you know and and this is what humans sometimes do we need we

00:51:12.500 need to be aware of that so that we don't do the same things again you know what what they've done

00:51:17.800 in the united states with these projects is they've put them out to artists yeah and sought

00:51:23.440 proposals that's what we see here yeah yeah and and artists are just fantastic at at uh coming up

00:51:32.500 with ways of illustrating you know things that we have trouble putting into words so uh you know i

00:51:40.100 would encourage you to to do that you know maybe you reach out to brian in in alabama and see what

00:51:46.840 he you know how he came up with his concept or you know reach out to the people who who create

00:51:52.620 The 9-11 Memorial, it's just, I mean, it's just all the names of the people and there's these pools of water and there's just water pouring into, I mean, it's just, it's really mind boggling how it evokes what happened on that day and the enormity of it and the evilness of it.

00:52:12.540 So I really encourage you all to reach out to artists and those who have done this before.

00:52:18.580 You know, the woman who designed the memorial, the Vietnam Memorial, is, you know, she's an amazing artist.

00:52:25.460 So there are some people, I think, and I'm sure there are similar people in Scotland and the UK who are willing to give that some real thought and, you know, commission something that's really thought-provoking, as you said.

00:52:39.200 One thing that I think, when reading your book, David, I was reading through it, and it's all about modern miscarriages of justice, relatively modern miscarriages of justice.

00:52:47.960 But we see the same themes running through those miscarriages of justice, as we do from hundreds of years ago. And what we try and do in the Witches of Scotland podcast, and what we try and do when we speak to people, is let people know that miscarriages of justice, like what happened to those people on a huge scale, a grand scale, aren't things of the past.

00:53:13.560 and there are still miscarriages of justice happening today including people around the

00:53:18.980 world that are still being accused of witchcraft the book shows so eloquently miscarriages of

00:53:25.760 justice of the past are also the same type of miscarriage of justice that we have in the present

00:53:31.240 day so I think it's a real cautionary tale for people and I think it's really important that

00:53:35.980 people read your book and see how these things still happen in the modern world. Thanks very much.

00:53:43.560 thanks so much for joining us again for our 58th episode of the witches of scotland podcast

00:53:53.500 it would be great to see as many of you as possible on the 21st of may in glasgow for

00:53:58.860 that live event with jenny fagan talking about hex as ever please look for us if you're not

00:54:05.040 already on twitter on facebook on instagram claire's two tick tocks anyway you'd like to

00:54:11.780 Get in touch with us.

00:54:12.640 It'd be great.

00:54:13.480 Twitter is the best place

00:54:14.460 because we can have a bit of a chat with you there.

00:54:16.440 And if we don't see you on Saturday,

00:54:18.780 we'll hope to see you at another event.

00:54:20.700 Won't we, Claire?

00:54:21.740 Yeah, for sure.

00:54:22.740 I mean, the world's opening up again now

00:54:24.520 and we're getting more and more offers

00:54:26.820 of coming to do talks.

00:54:29.020 Our difficulty is just that we're both working so hard

00:54:32.480 at our other jobs

00:54:33.280 and we've both got a lot of commitments.

00:54:34.920 But one really exciting thing coming up,

00:54:37.620 we'll put in the news a bit later,

00:54:39.160 is that later on at the end of June,

00:54:41.380 we're going down to the British Library to do a talk oh yeah we are yeah okay keep forgetting about

00:54:48.080 these things we've got coming up yes we are that's very exciting actually that's cool that's

00:54:52.780 June though got to get got to get May dealt with first yeah get out get out of the way and Zoe see

00:54:58.880 because like 60 is coming up soon for our podcast do we get a cake I don't know you just you know

00:55:04.780 talk about we should we should get a cake it's actually my my son's birthday and I need to bake

00:55:10.620 a cake this afternoon but you we might want to get a professional cake for you and i maybe this

00:55:15.920 is insensitive to talk about cakes when it's david's birthday and he's all doing this sorry

00:55:20.340 david sorry david david's probably not into cakes anyway yeah i think he probably is into cakes

00:55:26.820 okay david we'll take you for a cup of tea and a cake as soon as possible

00:55:31.040 the thing is i mean it's so important i was saying this to people

00:55:36.920 at Brechin that we want to make this free because we want as many people as possible to know about

00:55:43.540 it and get to speak to the great experts but it is very very kind of David to give of his time

00:55:49.680 to do that so David also has the buy me a coffee which we'll put up links to so if you are feeling

00:55:56.180 generous if you do like the podcast if you spend your time listening to it if you talk to people

00:56:01.400 about it please do remember that someone's giving his time who isn't actually involved in the

00:56:06.240 witches of scotland for free to do it and buy him a coffee just imagine if you saw him in real life

00:56:11.480 and he said yeah i do the witch of scotland you're like hey have a coffee why not

00:56:15.900 did you like a good advert no i thought that was quite good it had a slight like

00:56:21.640 i don't know if it's just me it had a slight like mafia undertone the way you went there

00:56:25.320 hey hey give me a coffee it's like there was an implicit threat there because it was just it was

00:56:32.600 just a kind of an insouciant 1.00

00:56:34.040 sort of Italian-American 0.99

00:56:36.600 mobster vibe I got there. Is it my shrug of the 0.99

00:56:38.500 shoulders? Yeah, obviously the listeners

00:56:40.640 can't see that, but you just kind of went

00:56:42.160 hey, hey, I'll buy a coffee.

00:56:44.640 Hey. I'll buy your coffee.

00:56:46.940 Sorry everybody that's listening

00:56:48.440 in America. Sorry everyone.

00:56:50.500 Sorry everyone that's listening anywhere for that.

00:56:52.460 Yeah, it's too much.

00:56:54.540 Okay, adios amigo.

00:56:56.740 Bye. Bye.

00:57:00.780 If you'd like to learn more about 0.99

00:57:02.320 the Witches of Scotland, please subscribe

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Witches of Scotland - May 21, 2022

EPISODE 58 - DAVID RUDOLPH - AMERICAN INJUSTICE

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