Podcast Summary | 2287 – Josh Dubin & J.D. Tomlinson

High-Level Overview

Wrongful-conviction attorney Josh Dubin returns to Joe Rogan's show, this time with an unexpected partner: J.D. Tomlinson, the former prosecuting attorney of Lorain County, Ohio, the very office that convicted the "Ohio 4." On his previous visit, Dubin laid out the case of four men convicted in the 1990s of a murder he says they did not commit, and publicly called out Tomlinson for ignoring his messages. That appearance led to a phone call, a meeting, and Tomlinson's decision to move to free the men, only for his successor to reverse it within days of taking office.

The tone is earnest, frustrated, and at times emotional. Tomlinson speaks candidly about his own ordeal: an office relationship that went badly, felony charges filed 30 days before his re-election, and evidence that cleared him being held back until after he lost. The conversation widens from the case into grand juries, prosecutorial immunity, ego, race and poverty, the O.J. Simpson trial, and how police are seen. It moves from a detailed legal story into personal confession and then into a broader, reflective debate about how to make the justice system fairer.

The Discussion Explores:

• The Ohio 4 case: a recanting informant, reward money, an alibi in New York, and a federal court's finding of likely innocence
• How Dubin's last Rogan appearance led to his first real conversation with Tomlinson
• Tomlinson's own prosecution on three felony charges, which he describes as political, and the evidence withheld until after the election
• The Nancy Smith and Joseph Allen "Head Start" exoneration, and why it made Tomlinson enemies
• The judges' about-face and the new prosecutor's withdrawal of the joint motion to free the men
• Grand juries, prosecutorial immunity, and Rogan's idea of an independent review panel
• Why prosecutors struggle to say "I made a mistake," and the power of apology
• Poverty, race, and environment in crime, plus a defense of the police from a former prosecutor

Deep Dive into Main Ideas

The Case of the Ohio 4

Dubin recaps the case. In 1991 a woman named Marsha Blakely was savagely murdered behind a shopping center in Lorain County, and a man she lived with was later found killed in a similar way. Police had identified four out-of-town men involved in selling drugs (Al Cleveland, John Edwards, Lenworth Edwards and Benson Davis) as people to look at before there was any evidence against them. When the prosecutor's office offered a $2,500 reward, longtime paid informant William Avery Sr. came in, and then brought his son, William Avery Jr., who eventually claimed Al Cleveland had confessed to him.

Dubin says the story fell apart from the start. Avery Jr. described a violent fight in an apartment, but police photos showed the apartment untouched. At the first trial he demanded $10,000, refused to testify, and said he had made the whole thing up for the reward money; the judge declared a mistrial. A month later his story had changed from hearing a confession to witnessing the murder, and he testified at all four trials. Meanwhile, the US Secret Service told the lead prosecutor it had stopped using Avery Jr. as an informant because he took reward money for false information. All four men were convicted and sentenced to 25 years to life.

In 2004 Avery Jr. walked into the FBI unprompted and said his drug-addicted father had pressured him into falsely accusing the men. In 2006 he signed an affidavit saying the same. A federal appeals court later wrote, "We find that Cleveland has presented a credible claim of actual innocence," pointing to the recantations and evidence that Cleveland was in New York hours before the killing. But at the resulting hearing the judge warned Avery Jr. about perjury charges, and he declined to testify. Outside, he told reporters: "I made the whole thing up. These guys didn't do it, but I'm not going to jail for 25 years." Dubin adds that Cleveland had met his New York probation officer that day and was seen with Daymond John of Shark Tank.

From Ghosted to Allies

After his first Rogan appearance, where he pointed out that Tomlinson had read receipts turned on and was clearly reading his texts, Dubin's phone rang that same evening. Tomlinson said he was under enormous stress and being flooded with calls. Dubin told him that now he knew what it was like to be accused of something he didn't do, and asked him to imagine 30 years of it. Tomlinson replied, "if I don't at least agree to meet with you, who am I?"

Tomlinson explains why he was open to it. As a 27-year-old lawyer in 2008, he happened to be in the courtroom when Al Cleveland begged Avery Jr. to tell the truth, and it stuck with him. After his own charges were dropped, he spent Thanksgiving (canceling a trip to Mexico City with his parents) going through the trial record, visiting the apartment, and looking for any evidence of guilt. He never found it. He calls Avery Jr. perhaps the worst witness he had ever seen, and says a defense lawyer from one of the original trials used to cry after calls from his client, convinced he had failed an innocent man.

Tomlinson's Own Prosecution

Tomlinson admits the trouble began with a mistake: a relationship with a woman in his roughly 100-person office, whom he had known for 19 years. It became contentious, recordings of arguments were released, and he takes responsibility, saying he has made amends with her. He says the real turning point was his 2022 exoneration of Nancy Smith and Joseph Allen, which angered police and former prosecutors. He also describes a feud with the county sheriff, whose department hired both the man Tomlinson had defeated and the man who would run against him.

On October 1, 2024, a month before the election, Tomlinson and his chief of staff Jim Burge were charged by complaint (with no grand jury) with tampering with records, intimidation and bribery. The allegation was that they had written a false statement and pressured the woman into adopting it; Tomlinson says she had asked for help with a media statement and texted that she trusted Burge's writing. He claims the lead detective was trying to sleep with her during the investigation. Three days after the charges, she texted the detective that the charges were false, but Tomlinson says those exculpatory messages were not turned over until November 7, two days after he lost. The charges were dropped shortly afterward. Rogan and Dubin compare the human cost of politically driven prosecutions to what Trump faced on a national scale.

The Head Start Case and a Rare Apology

The Nancy Smith and Joseph Allen case dated to 1994. Smith, a Head Start bus driver, was accused of driving young children to Allen's house to be sexually abused in a basement. Tomlinson says the original detective found no evidence a crime had occurred and couldn't even show the two knew each other, but parents organized and the stories merged. Allen's home, he notes, was built on a slab and had no basement. Smith served 15 years and Allen 25. Tomlinson says he kept waiting for inculpatory evidence during months of review and never found it.

When he apologized to them in court, a lawyer from the Innocence Project told him he was the only prosecutor he had ever heard "actually apologize to a defendant." Tomlinson then stipulated to their innocence so they could be compensated, which drew criticism. Both cases were prosecuted by the same assistant prosecutor, and Tomlinson says his review of just those two cases found "six people were wrongly convicted and did about 162 years in prison," which makes him wonder how many more there are. He says Nancy Smith is still fighting the state for the modest statutory compensation, around 50-something thousand dollars a year.

The Reversal

With Tomlinson leaving office on January 6, he and the defense filed a joint motion for new trials, planning to dismiss the charges once the motion was granted. Dubin says that in 24 years he had never seen a judge do anything but hold a hearing on such a motion. Instead the judges were silent. The incoming prosecutor, Tony Cillo, who had worked in that office and was, in Tomlinson's words, in a mentor-protégé relationship with the original assistant prosecutor, told the local paper he didn't understand the rush. Ohio's attorney general, Cillo's former employer, filed a brief asking the court to wait.

Judge Chris Cook first rejected the AG's request, writing that pausing a case for a new official was "not how the system operates." Three days later, the same judge rejected the defense's emergency motion, writing that "no rational person will conclude that a change in county prosecutor constitutes an emergency," and cited Tomlinson's own Head Start exoneration to argue that a new prosecutor can revisit a predecessor's decisions. Another judge denied Cleveland's motion without a hearing, and on his second day in office Cillo withdrew the state's support. Dubin says he has just found a document showing that alternative suspects were once reported to the prosecutor's office and assigned to Cillo to investigate, including one whose ex-wife said he was cleaning bloody clothes the night of the murder. He publicly invites Cillo to make their upcoming March 18 meeting public and to present any evidence of guilt. Tomlinson notes that the only person who ever placed himself at the scene, Avery Jr., is the only one never charged.

Grand Juries, Immunity, and Ego

Rogan asks whether an independent panel of unconnected attorneys could review cases before they go to trial. Dubin says that is supposed to be the grand jury's job, but quotes the famous line that "you can indict a ham sandwich": the defense can't present evidence or even be in the room, and almost every case gets indicted. He calls Rogan's idea good but like moving a mountain, and proposes an easier fix: accountability, since prosecutors have immunity even when they hide exculpatory evidence. Tomlinson suggests requiring county prosecutors to have experience as defense attorneys, and urges people to vote in local elections because the county prosecutor has far more power over their lives than the president.

Rogan believes the root problem is the human urge to win; people cheat at pool and cards, and the same instinct in the legal system leads to wrongful prosecutions. Dubin says the fix requires prosecutors to be able to say they made a mistake, comparing it to realizing mid-argument with his wife that he was the one who was wrong. Tomlinson agrees that pretending to know is its own problem: "if you're just guessing you're just lying really."

Circumstance, Race, and Policing

When Dubin notes that the men admit they were selling drugs, Rogan says that doesn't make them murderers, and describes how people raised amid crime "imitate your atmosphere," while those who escape it are the exception. Dubin recommends Isabel Wilkerson's Caste for understanding the Black experience in America and how redlining and Jim Crow still shape communities. They also reflect on the O.J. Simpson verdict, the Goldman family's grief, and the ripple effects a wrongful conviction has on families.

Tomlinson, a self-described pro-police prosecutor, says "I trust police much more than I almost do prosecutors," because officers seem to want to get it right while prosecutors want to win. He handled about ten fatal police shootings, found every one justified, and ruled on them himself instead of hiding behind a grand jury. Rogan describes a video of an officer breaking down after a shooting and argues that viral clips create a skewed picture, since the vast majority of police encounters are positive. Dubin shares a story about realizing his offhand comment about jurors sat badly with a corrections officer friend, and resolves to be "quicker to listen and slower to speak."

Conclusion

This is a rare and striking conversation: a defense attorney and the prosecutor he once publicly shamed, sitting side by side to argue for the same four men. The Ohio 4 case, as they present it, rests on a single informant who took reward money, was dropped by the Secret Service, and confessed to the FBI that he lied. It also shows how politics, loyalty and pride can keep a conviction in place. Tomlinson's own experience of being charged and having exculpatory evidence held back gives the case a painful symmetry. Both men argue that the fixes are human as much as legal: accountability for prosecutors, defense experience for those who charge people, and the humility to admit a mistake. As Dubin puts it, "The humanity in all of us should always bend toward the truth."

This is a summary of "2287 – Josh Dubin & J.D. Tomlinson" from The Joe Rogan Experience, giving you the GIST so you can decide if you want the REST. Listen to the full episode.