Why wrongful convictions are so hard to undo once prosecutors commit

The Short Version

Across these three conversations, a conviction stays in place less because the evidence still supports it than because nobody with the power to undo it gains anything by doing so. Josh Dubin's Ohio 4 case rests on one paid witness who recanted, yet the men were not freed, and when a prosecutor finally agreed to act, his successor withdrew the state's support on his second day in office [1][2]. J.D. Tomlinson, that former prosecutor, says his colleagues want to win, and that the people who prosecuted a case he overturned all turned on him [2]. Harvey Silverglate describes the same habit at the federal level: agents decide who is guilty and then build the case [3]. The result, in Dubin's words, is that "it's really easy to put someone in jail, real easy, real difficult to get them out" [1].

Table of contents

What They Said

Josh Dubin: a case that survived its only witness

Dubin, a civil rights attorney who runs the Perlmutter Center for Legal Justice, calls the Ohio 4 the craziest case he has ever had [1]. In the early 1990s in Lorain County, Ohio, Marsha Blakely and Raymond Epps, who lived together, were found dead [1]. The case went cold for a month, and the prosecutor offered a reward (Dubin gives it as $2,000 in one conversation and $2,500 in the other) [1][2]. A known informant, William Avery Sr., came in the next day with information police said came straight from the newspapers, and then brought his son [1]. By Dubin's account, police told the son they would not pay, because he was only repeating what had been in the papers and describing an assault, not the murder. "The very next day, he shows up and says that Al Cleveland told him that he murdered" Blakely [1].

Four New York men who sold drugs in Ohio were charged: Al Cleveland, John Edwards, Lenworth Edwards and Benson Davis [1]. Dubin says police had identified them as people to look at before there was any evidence against them [2]. At the first trial William Avery Jr. demanded $10,000 to testify and said he had made the whole thing up for money; the judge declared a mistrial [1][2]. A month later his story had changed from hearing a confession to witnessing the murder, and he testified at all four trials [2]. All four were convicted and sentenced to 25 years to life [2].

What the juries did not have, as Dubin lays it out, is almost everything else. There was no forensic evidence and no other eyewitness [1]. A knife found near Blakely's body was never tested for DNA [1]. Avery Jr. described a violent fight in an apartment, but police photos showed the apartment untouched [2]. Witnesses reported seeing Blakely around town after the time Avery said she was killed [1]. The Secret Service told the lead prosecutor it had stopped using Avery Jr. as an informant because he took reward money for false information [2]. Dubin says Cleveland had met his New York probation officer that day and was seen with Daymond John of Shark Tank, who then ran a car service and testified he was with Cleveland in New York [1][2].

Then the witness took it back, more than once. 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 [2]. A federal appeals court wrote, "We find that Cleveland has presented a credible claim of actual innocence" [2]. But at the hearing that followed, the judge warned Avery Jr. about perjury, neither the prosecutor nor the judge would grant immunity, and he pleaded the Fifth [1][2]. Outside the courtroom 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" [2].

Dubin treats this as typical, not freakish. In many exonerations built on a single eyewitness, he says, the witness recants, and courts view recantations with deep suspicion [1]. He recalls prosecutors in a conviction integrity meeting who had made up their minds before hearing him [1]. He also says such units typically require a no-media agreement, which is why he posted his 40-page submission and every exhibit publicly and asked listeners to read it before contacting the prosecutor: "pressure does break pipes" [1].

J.D. Tomlinson: the prosecutor who reversed course, and what it cost

Tomlinson was the Lorain County prosecuting attorney, head of the office that convicted the four men [2]. He says that 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 [2]. Dubin says Tomlinson had told Cleveland's wife the case always bothered him and that he would do the right thing, then went silent [1]. After Dubin called him out on Joe Rogan's show, Tomlinson phoned that evening. His reasoning: "if I don't at least agree to meet with you, who am I?" [2]

He spent Thanksgiving going through the trial record and visiting the apartment, looking for any evidence of guilt, and says he never found it [2]. He calls Avery Jr. perhaps the worst witness he had ever seen [2].

His explanation of why this is rare comes from his own office. In 2022 he exonerated Nancy Smith and Joseph Allen, convicted in a 1994 case in which Smith, a Head Start bus driver, was accused of driving children to Allen's house to be abused in a basement. Tomlinson says the original detective found no evidence a crime had occurred, and that Allen's home was built on a slab and had no basement [2]. Smith served 15 years and Allen 25 [2]. When Tomlinson apologized to them in court, an Innocence Project lawyer told him he was the only prosecutor he had ever heard "actually apologize to a defendant" [2].

The response from his own side was hostility. Dubin says law enforcement and the prosecutors on that case all turned on him, and Tomlinson says the exoneration angered police and former prosecutors [2]. The assistant prosecutor on that case had been chief prosecutor in the office for a very long time, and Tomlinson says the same man prosecuted all four of the Ohio 4 [2]. From reviewing just those two cases, he found "six people were wrongly convicted and did about 162 years in prison," and asks, "how many more are there out there?" [2] He thinks his openness to reviewing more cases is what made enemies [2].

He then became a defendant. A month before his 2024 election, he and his chief of staff were charged by complaint, with no grand jury, with tampering with records, intimidation and bribery [2]. He admits the trouble started with a mistake of his own, a relationship with a woman in his office [2]. He says that three days after the charges she texted the detective that the charges were false, and that those messages were not turned over until two days after he lost the election; the charges were dropped shortly afterward [2]. This is his account of his own case.

What happened when he acted

With Tomlinson leaving office on January 6, he and the defense filed a joint motion for new trials based on the 2004 recantation and 2006 affidavit, planning to dismiss once it was granted [2]. Dubin says that in 24 years he had "never seen a judge do anything other than have the hearing" on a motion a prosecutor joins [2]. This time the judge was silent [2]. 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 did not understand the rush [2]. Ohio's attorney general, Cillo's former employer, asked the court to wait [2].

Judge Chris Cook first rejected the attorney general's request, writing that pausing a case for a new official was "not how the system operates" [2]. Three days later the same judge rejected the defense's emergency motion: "no rational person will conclude that a change in county prosecutor constitutes an emergency" [2]. He cited Tomlinson's own Head Start exoneration as proof that a new prosecutor can revisit a predecessor's decisions [2]. Another judge denied Cleveland's motion without a hearing, and on his second day in office Cillo withdrew the state's support [2].

Dubin adds two claims about the people deciding. He says one judge who denied relief had been a prosecutor in that office and is friends with the current prosecutor, and that another is the same judge who denied Cleveland relief after the federal court's finding [2]. And he says he found a document showing 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 [2].

Harvey Silverglate: deciding guilt first

Silverglate, a civil liberties lawyer and author of Three Felonies a Day, speaks about the federal system and never mentions Ohio [3]. He says FBI agents interview in pairs, with one taking notes that become a Form 302 report, and that he has never seen one be accurate, because agents write what they wish you had said [3]. When his clients are interviewed he brings a tape recorder, and when agents refuse to be recorded he ends the meeting [3]. Asked whether this resembles the Stalin-era maxim about being shown the man and finding the crime, he agrees: agents decide who is guilty and then build a case [3].

He thinks the FBI's culture was so corrupted under J. Edgar Hoover that it cannot be reformed and should be replaced by a new agency with a new name, culture and staff [3]. And he argues the tools are too broad: because nearly any crime involving a phone call or letter can be made federal, prosecutors can indict almost anyone [3].

His example of pressure working in one direction is the Manhattan case against Donald Trump. He says he does not believe the indictment describes a crime, and that the district attorney was pressured by people in his office threatening to quit if he did not indict, which he calls "wholly improper, wholly unethical" [3]. He adds that he believes Trump likely has committed tax crimes, and that Trump became a target of "ambitious politicians and vicious prosecutors" [3]. This is Silverglate's legal opinion, and Rogan and Dubin voice a similar one, with Dubin saying lawyers across the spectrum were asking, "What is the crime here?" [1]

Where They Agree, and Where They Don't

They agree the pressure runs toward charging and holding, not toward letting go. Silverglate describes staff threatening to quit unless a case was brought [3]. Tomlinson was attacked for dropping one [2]. Dubin watched an office withdraw support for a new trial within two days of a change at the top [2].

They agree the commitment comes before the evidence. Dubin says the four men were identified before any evidence existed [2]. Silverglate says agents pick the person and build the case [3]. Dubin describes reviewers who had decided before hearing him [1].

They agree that publicity is one of the few levers. Dubin's public posting worked to the extent that it got Tomlinson to pick up the phone [1][2]. Silverglate, speaking of universities, says embarrassment after publicity usually forces them to back down, and that "Sunshine is the best disinfectant" [3].

They differ on whom to trust. 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 [2]. Silverglate's distrust is aimed at investigators themselves, the FBI above all [3]. Their experience differs: Tomlinson worked with county police, Silverglate against federal agents. Tomlinson's own story complicates his view, since he claims the lead detective in his case had a personal motive [2].

They differ on the fix. Rogan proposes an independent panel of outside attorneys with no stake in the result [2]. Dubin calls it a fantastic idea but like moving a mountain, and prefers accountability [2]. Tomlinson wants county prosecutors to have experience as defense attorneys [2]. Silverglate wants an agency abolished [3].

The two tellings of the Ohio 4 differ on small facts. The reward figure differs, as noted above, and so does the order in which the two victims were found [1][2]. Neither changes the outline. Two of the men are out and two are still serving life sentences [1].

Why It Works

The sources name specific mechanisms that keep a conviction standing.

Winning is the job. Rogan puts it most directly: "they want to win," they are in a system, and "the system rewards success"; a case that falls apart looks bad and a career does not progress [2]. He compares it to people cheating at pool and cards [2]. Dubin's version of what goes through an official's head: "I'm not gonna go against the former office" [2].

No penalty for getting it wrong. Dubin: "prosecutors have immunity There are no consequences," even when they fail to turn over evidence pointing to innocence, which they are constitutionally required to disclose [2].

The recanting witness is trapped. If Avery Jr. lied at trial, admitting it under oath exposes him to perjury; the judge warned him he was committing perjury either way, and no one would grant immunity [1]. So the truth, if it is the truth, could only be said on the courthouse steps [2].

Ego. Dubin compares it to the moment in an argument with his wife when he realizes he is the one who is wrong [2]. He says that when he asked forensic witnesses who had played a part in the wrongful conviction of Clemente Aguirre, exonerated from Florida's death row, whether they would like to apologize to him, the answer was no [2]. Tomlinson adds that pretending to know is its own problem: "if you're just guessing you're just lying really" [2].

Loyalty and continuity. The successor had worked in the same office under the same assistant prosecutor [2]. Tomlinson notes that the elected prosecutor of that era escaped criticism by staying quiet, though "the buck stops at the office holder" [2].

The front door is wide. Dubin quotes the line that "you can indict a ham sandwich": the defense cannot present evidence to a grand jury or be in the room, and almost every case gets indicted [2].

Fear of the flood. Dubin says the rationale he heard for blocking access to biological evidence was that "it would lead to a flood of requests" [1]. In Florida, he says, a provision letting defense attorneys collect alternative suspects' DNA with court approval had support in the House and was dropped by the Senate sponsor without explanation [1].

Clocks and elections. Everything in the Ohio 4 turned on whether one man acted before January 6 [2].

Where It Applies, and Where It Doesn't

This is one county, told by the men's lawyer and the prosecutor who came to agree with him. The successor's side is not in these sources; Dubin publicly invited him to make their meeting public and present any evidence of guilt [2]. The courts have not exonerated the Ohio 4. The federal court found a credible claim of innocence for Cleveland [2], and the convictions stand.

Tomlinson does not say most convictions are wrong. Of his office's cases he says most "are probably good," and he reviewed only two [2]. He also handled about ten fatal police shootings and found every one justified [2].

Dubin does not pretend his clients were blameless. The men admit they were selling drugs; he and Rogan say that does not make them murderers [1][2]. Nor does he hide the opposite risk: a man he helped get resentenced was arrested about a month later for an alleged killing, and Dubin promises more thorough vetting [1].

Silverglate's material is about federal agents and a political prosecution, not post-conviction review, so it supports the pattern only by analogy [3]. And Judge Cook's point cuts both ways: the freedom of a new prosecutor to revisit old decisions is what allowed the Head Start exoneration, and it is what undid the Ohio 4 motion [2].

Anyone facing charges or seeking review needs a lawyer; nothing here is legal advice.

What To Do With It

1. Vote for county prosecutor. Tomlinson says that office has far more power over your life than the president [2].
2. Read the record before taking a side. Dubin asks people to read his submission and exhibits first, then write or call [1].
3. Use public pressure where it is lawful. It got a prosecutor to return a call when private messages had not [1][2].
4. Ask what a conviction rests on. A single paid witness, no forensic evidence and no second eyewitness is the profile Dubin describes [1].
5. Do not talk to federal agents without a recording. Silverglate brings a tape recorder and ends the meeting if agents refuse [3].
6. Back accountability for withheld evidence. Dubin calls this the easier fix compared with redesigning grand juries [2].
7. Support defense experience as a qualification for prosecutors, as Tomlinson suggests [2].
8. Watch what happens to DNA-access bills. Dubin won a 16-0 committee vote to make DNA theft a felony, and still saw the defense-access provision dropped [1].
9. Practice saying you were wrong. Dubin and Tomlinson both treat the fix as human as much as legal; Dubin's line is "The humanity in all of us should always bend toward the truth" [2].

Sources

1. Josh Dubin on Second Chances After Sheldon Johnson, the Ohio 4 Case and a Weaponized Justice System (Joe Rogan #2228) · The Joe Rogan Experience
2. 2287 – Josh Dubin & J.D. Tomlinson · The Joe Rogan Experience
3. Harvey Silverglate on Free Speech, Campus Censorship, the FBI and Criminal Justice · Lex Fridman Podcast