Why Conviction Review Units Matter, with Sunny Eaton

Speaker 1 (00:03):

Welcome to The Lawyerist Podcast, a series of discussions with entrepreneurs and innovators about building a successful law practice in today’s challenging and constantly changing legal market. Lawyerist supports attorneys, building client-centered, and future-oriented small law firms through community, content, and coaching both online and through the Lawyerist Lab. And now from the team that brought you The Small Firm Roadmap and your podcast hosts

Jennifer Whigham (00:35):

Hi, I’m Jennifer Whigham.

Stephanie Everett (00:36):

And I’m Stephanie Everett. And this is episode 402 of the Lawyerist Podcast. Part of the Legal Talk Network. Today Zack’s talking with Sunny Eaton about access to justice and conviction reviews.

Jennifer Whigham (00:48):

Today’s podcast is brought to you by Albatross Legal Workspaces, Postali and Posh Virtual Receptionists. We wouldn’t be able to do this show without their support, stay tuned. We will follow you a little bit more about them later on, but first we’re gonna talk about LabCon. We just got back.

Stephanie Everett (01:03):

Yes. It was so much fun. And honestly, not as tiring as some years.

Jennifer Whigham (01:08):

Yeah. Do you wanna, for anybody that somehow missed what LabCon is. Do you wanna tell people a little bit about what it is first?

Stephanie Everett (01:14):

Yeah. It’s our annual in-person conference for the people who are in our Lab program, which is our paid coaching community. And we get together in person every year. And besides being a lot of fun, I happen to think it’s a lot of fun. It’s really designed to be an un-conference . And what that means is there’s not a lot of just speakers at the front of the room. It’s more breakouts around every part of your business, where we’re going into smaller groups. We’re collaborating, we’re talking about ideas, we’re sharing ideas. There’s still, there’s a lot of ideas sharing and then there’s time for implementation. Yeah. Which I think is pretty different. And maybe one of my favorite parts.

Jennifer Whigham (01:55):

Yeah. Like, I mean the energy in the room last week was incredible. We had like 60 or 70 lawyers and different parts of their business, different practice areas, but they were also generous and open-minded and energetic and willing to just do whatever we asked of them, which was great. And what happens at these things is you get a million ideas. And we had a couple of our participants say last year, I went back with all these ideas and I scared my team because I gave them too many ideas. But this year, and what we did last year too, is we give you time to implement, prioritize, and actually build some things. So you’re not just going back to your team with ideas, you’re going back with a plan. And I think that is really different. And I think people appreciate that.

Stephanie Everett (02:39):

Yeah. We create a lot of space at the event where you can work with a coach. You can work with an expert and actually build the thing that you just heard about or learned about. So some people built out their financial model or they got started and built out a marketing funnel, or maybe they automated a process that they had been thinking about for their business. So that’s really what I love is seeing what they’re walking away with. That’s a real, tangible idea or thing that they can now use in their business because lots of conferences give you ideas. We wanna be a little bit different and like, yes, you’re gonna not just have ideas you’re gonna actually implement and do the work because ideas are pretty worthless if you don’t actually do anything with them.

Jennifer Whigham (03:21):

Yeah, I mean, a lot of the feedback that we got after when I was reading through our feedback, people really loved the community aspect. Like I said, it is, it’s hard to describe, but everybody in that room is so open minded and innovative and they feed off the energy from each other and they get ideas from each other. They get support, they get encouragement. It really is almost this giddy feeling by the end of it, because I think so many of the participants in our program feel alone, with their ideas are their firm. You know, I had a couple people say, I don’t have anybody to talk to about the stuff besides my husband or the, you know, the one or two people that work at my firm and to have 60 people who understand what I’m going through. I don’t think people realize how valuable that is. And that was really the majority of the feedback just to find your people there. Yeah. It was pretty great.

Stephanie Everett (04:15):

One of the greatest compliments we got during the conference is somebody told me that this event just restored their faith in our profession. Because it’s not often that you’re in a group of lawyers where everyone isn’t trying to puff up their chest and one up everyone and be the best, coolest, whatever, you know, person in the room. Instead. It was like, no, this is just a group of really real vulnerable, honest people of this is what’s working and this is what’s not, and we can talk about it and we can help each other. And we all are doing great at some things and struggling in others. And that’s how we come together to really support one another, which is what I love. And I love, I mean, I always tell people, like, I’d like to think I’m pretty authentic. Like, what you see is what you get. Like, you probably hear that on the podcast a lot of people tell me that they think they, they feel like they know me and I’m like, yeah, I don’t even know how to be something different. And that’s what I love about our community is that is the same for everyone. Just show up as yourself and we take you who you are and we help you with where you want your business to be next.

Jennifer Whigham (05:23):

Yeah. And it’s a real, yes/and place. You might have a big idea and nobody’s gonna shoot it down and be like, no, that’s too ambitious. No, that’s, that’s just too wild for you to try. You will have people say that is a great idea. Let’s figure out how to make it happen for you. And I think that’s a real light bulb moment that you can have a community like that. Yeah. Very

Stephanie Everett (05:42):

Cool. And the beautiful thing about Lab is really LabCon came first. We had an event first and then we said, how do we keep this energy going throughout the year? Which is where lab came from. It was the outpouring of that, that we said, let’s actually create this community that can live beyond this once of year event. And so we do have space for the community members to get to connect with each other each week and each month. And each quarter, when we have our strategic planning retreats, like we have all these different ways. So they will continue that energy and those conversations now in the Lab program, right for the rest of the year. So it’s not too late. You can join us, you can join the Lab community. We’ll get you connected in with all these amazing people that we help each other every week throughout the year. And then you can be in the room with us next year for the LabCon fun.

Jennifer Whigham (06:33):

We would love that. All right. Now here is Zack’s conversation with Sunny.

Sunny Eaton (06:38):

Hi, I’m Sunny Eaton. I’m the director of the conviction review unit in Nashville, Tennessee. I have been the director of that unit since July of 2020. So just about two years now.

Zack Glaser (06:49):

So Sunny. Thank thanks for being with us today. We’re talking access to justice and your Conviction Review Unit in Davidson county.

Sunny Eaton (06:58):

Great. Thank you for having me. There’s a lot to talk about.

Zack Glaser (07:00):

Yeah, yeah, there definitely is. And I, I think I want to go first with what is the conviction review unit, just so we can make sure we’re starting at one here.

Sunny Eaton (07:10):

So first I wanna say that a conviction review unit is generally the same thing as a conviction integrity unit. They go by various names and various places. And not everyone realizes they’re essentially the same thing. Ours is a conviction review unit. So what we do primarily is we look at old convictions where we might have gotten it wrong. Where the state may have gotten a conviction that they shouldn’t have gotten where an innocent person is in prison or still dealing with the collateral consequences of having been imprisoned. And our standard generally goes along with our professional rule, which is when we have clear and convincing evidence of actual innocence, we have to seek remedy. We’ve gotta try and fix it. Right. That’s the basic definition of what we are. And I can talk in a minute about how we do that.

Sunny Eaton (07:59):

But what we also are we’re we do a little more than just looking back. We also work very hard on prevention on learning, recording data, doing education in our own offices and in the community about how we can stop these tragedies from happening in the future. Then lastly, the other thing that we do is look at policies. We look at our own office policies. We look at legislation and we try to identify where we can do better, where we can do better as an office where we can do better as a prosecutorial community. We look at anything that, that might come about to help us do this job and be more accurate.

Zack Glaser (08:37):

I like that word accurate because that’s what we’re looking for. We’re not looking for, from my perspective, at least, and I think many, many people’s perspective, we’re not looking for just convicting people in a DA’s office. So I, yeah, I really like accurate there, but I think it’s important to note a little bit about your background coming into this. Because when I think about those three areas that you talk about there you say, you know, essentially kind of righting the wrongs initially, but then the other two are something that I don’t know that everybody would always go into. And I, I think it’s important from your background, because what we’re saying is we’re gonna write the wrongs and then we’re gonna make sure that it doesn’t happen again. Well, we’re gonna try to see what it is because we realize that some of these things, or many of these things aren’t simply because somebody missed evidence, right? It’s because we have a system in place that doesn’t find that evidence, or doesn’t turn over that evidence or something like that. Or we have systems in place that wind up with bad evidence. And so you come to this from having been a defense attorney, a criminal defense attorney for years and years and years. Could you kind of give us a little bit of your background with that?

Sunny Eaton (09:48):

Sure. In 2007, I joined the Nashville public defender’s office. I always had an interest in criminal law and I came and started at the Nashville public defender’s office. And I was there for four years. You know, I did a lot of felony work there, following that. I went into private practice for quite some time and continued to do criminal defense work . And then a lot of things happened, including a little bit of burnout and a health issue with my wife and we sold every single thing we owned and took a two and a half year sabbatical <laugh> and we spent that time driving and camping through Mexico and central America. Frankly, though, you know, I bring it up because it was a defining moment in my path. I think criminal defense is a very, it’s a field that’s very easy to get bogged down in.

Sunny Eaton (10:33):

In some ways the better you fight the fight, the easier it is to get discouraged. Yes. But for me, I got to a place, particularly because of a couple of cases where I just burned out I mean, I just did, and my wife had some health issues and so we asked ourselves what was important to us. And at that moment we just needed to leave. That’s what we needed to do. . But when I came back after what was supposed to be a six month trip, turned into two and a half years. I came back it’s time to restart, you know, I’ve worked through the burnout. And then I started asking myself what’s next. And for a moment, it wasn’t criminal defense. I mean, in all honesty, when I came right back, I didn’t come in ready to go back into the criminal defense battle or the criminal legal battle being location independent and peaceful was a little more important to me.

Sunny Eaton (11:18):

Yes. So I took up a totally different area of law, went virtual, and that was fine. I think it was a good decision, but then George Floyd happened. And we find ourselves in the middle of this awakening in our country and our, our community zeitgeist sort of changing as it relates to criminal justice. And I, I found myself sitting there in the middle of a pandemic, looking at all of this feeling guilty and starting to feel like something was missing starting to feel like I have this skillset, I have this experience and I’m wasting it. I’m not using it. I’m not in the fight. And I need to be so right around that same time. And it’s hard for me to talk about this as a current DA, but I will briefly discuss it. There was another da in another county who did some things that I found to be highly unethical.

Sunny Eaton (12:09):

Okay. And I was still in private practice. I was not working for a district attorney’s office at this time. , But I frankly needed something to be fired up about this. Got to me, got to me immediately. And in 48 hours, I organized a whole lot of lawyers to sign on to a board complaint, which led to a conversation with our Nashville elected DA Glen Funk. And in that conversation, although he was on the right side of things and I, I wanna be really clear about that. He was on the right side of things, but we had some disagreement about the messaging. Right. And

Zack Glaser (12:40):

Well, I I’m really sorry to interrupt. I wanna be clear that Glen was not the person that you were that, you know, I just, I just wanna put that out there and make sure we say Glen was not the person that, that you were bringing the board or many people were bringing

Sunny Eaton (12:54):

Complaint for. No. And you know, again, I’m not, I’m not really going into that much other than to say that through that discussion. He and I, and we are on the same side of things. Right. He worked so hard to educate himself and to get it right. And that’s what was so valuable is we had a real discussion. And at the end of it, he kind of leaned back, leans back and he says, you know, you have not been afraid to disagree with me. And I need more of that in my office. I need more of that in my professional life. I need smart people around who disagree with me and that will make us better. Then he said, so I’ve got this job that may be coming, coming open. And I wanna talk to you about it. And immediately my back is up. I’m still, I’m still in fight mode and immediately you’re not. Yeah. Right. You’re not gonna quiet me down by offering me a job

Zack Glaser (13:43):

You can’t buy me. Yeah. Right.

Sunny Eaton (13:45):

And, and he’s like, no, no, no. I would never, I would never think that. Of course. And he starts talking to me about Conviction Review Unit. But I wasn’t prepared to go work for a DA’s office. That was not in the cards for me. It had never been in the cards for me, no disrespect to my colleagues, but this was not my path and I respectfully declined and you know, we’re in the middle of a pandemic and my practice is taking off and he comes back to me a few months later and says, I really wanna revisit this. You’ve gotta do this job. So I did a lot of research and I started thinking to myself, you know, this is really special. And I have an opportunity to make a real difference with the power of the state from within a district attorney’s office.

Sunny Eaton (14:27):

And that looked very different to me than going back to being a criminal defense lawyer. . And so I thought about it and I thought about it and I talked to my wife about it, and we both said, Nope, this is still not for you. And so I wrote a very lengthy letter to Glen and basically said, you know, before you can make a formal offer, I, I just wanna tell you why I’m, I’m not gonna do it. And these are all of, of the things I think you need for your unit. You know, I’d be happy to volunteer and help you try and set it up and help you try and find the right person. But this is how it should look based on everything that I’ve been learning. . And he called me again the next day. And he said, look, it’s gotta be you.

Sunny Eaton (15:05):

I appreciate your letter. You get it. It’s gotta be you. What do you need? So at that point, I mean, he is not leaving me a lot of options. . And I gave him a list of what I thought his unit needed and what my requirements were. And one of the most important requirements to me was that I was not just another assistant district attorney in the office. I wanna be in the room where decisions are made. Okay. I think it’s important that a CRU director is senior leadership in the office. It sends a message to the community about the priority. It sends a message to the office. Yes. And also I was 16 years into my legal career at this point. Right. So I took the job and I have not regretted a single day of it. And I, I wasn’t sure that would be the case, but in fact, this is the best job I’ve ever had. Certainly the most rewarding, also the most complicated and most difficult, but the most rewarding

Zack Glaser (15:53):

I think a lot of lawyers listening would probably be able to put themselves in your shoes and, and feel the same way, but real quick, we’re gonna take a break to hear a word from our sponsors. And when we come back, we’ll talk about what you’re doing in that conviction review unit, specifically, to get things done, to affect change.

Zack Glaser (16:12):

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Zack Glaser (19:28):

And we’re back with Sunny Eaton. And we’re talking about the conviction review unit specifically in Davidson county, Tennessee. Sunny. We kind of went into your background and how we got here. And what I’d like to know is what are we doing in the CRU you know, like, how does it work? What’s going on? Cuz I know you alluded to the idea that when you came back to Davidson county and Glen approached you and said, Hey, I’d like you to, to lead this CRU you said, I don’t know what you’re talking about. But it had been there since 2017, I

Sunny Eaton (20:02):

Think right now I, I say that what I there’s a few things with that. I’m actually far more careful about being critical of that time period now than I was before I understood why and what happened and why we needed a 2.0, but it did start in 2017. I mean, one thing that I think people don’t understand and frankly, even I didn’t understand when I took the job is how different it is than everything else that’s going on in district attorney’s office. And when I looked at my predecessor’s work, it was a tremendous amount of work. I mean, I think there was some media criticism that there wasn’t work going on. That that was just uninformed, frankly. The former leader of our CRU did an unbelievable amount of work. Right. But it’s a difficult thing to set up. It’s a difficult thing to set up. It is a difficult thing to know how to do. We’re the only CRU in the state. So it’s very isolating. There. Aren’t a lot of models to look to or people to reach out to and when you start something like this, you have a flood of letters and interest. So there was a tremendous number of applications that came in

Zack Glaser (21:06):

And no way to, to go through that, you’re starting at zero. You have nothing to say, because I think for me, you go, well, how do we keep this fair? How do we try to find accurate, but still be able to do it

Sunny Eaton (21:20):

Well, that, and how do you keep up with all of it? How do you triage people? How do you document what you’re doing? I’m learning about public records and what’s disclosable finding out and listening to the defense bar about how we can be the most helpful and the most collaborative. And that’s, that’s the real difference. This is collaborative. And that is brand new in our criminal legal system. Yes. It’s brand new. That’s not how things have been done. It’s always been adversarial and the CRU really straddles that fence. We try to be as collaborative as possible. And we have a mission that includes transparency and that’s that’s new. Right. You know, now, honestly, it’s not that new for this office, for the Nashville office. One of the things that Glen did right away when he started was Institute of policy of open file discovered.

Sunny Eaton (22:08):

Okay. And that’s across the board. We do not hold things back in our office except things that are actually protecting someone’s identity or personal information. And the other thing that’s different in our office. I wish I could take credit for it. It’s been this way long before I got here is we do not object to scientific testing. We don’t object DNA testing or if there’s anything new to test, send it to us, bring it to us. We will work it out and we’ll test it. That is something we can talk about later in terms of access to justice, but it makes our office very unique from a lot of district attorney’s offices. Right? So our CRU was doing a lot of things without a lot of tools. Prior to me coming in. And one of the things that I did when I came in was a, our former leader had a case virtually done.

Sunny Eaton (22:53):

So I brought that to the finish line. I can’t take credit for its entire investigation . And the other thing I did was take a breath and slow down and have to become okay with the fact that there was going to be a few months of getting started out where I wasn’t going to be able to do a lot of actual case investigation. Right. That’s a very hard thing to come to terms with when you’re looking at a stack of applications . But I reached out to the cuatro center, which is sort of the think tank for all things, CRU and a lot of things in this project. And one of the first things that they told me was, frankly, you shouldn’t be taking on a case for at least a year. And they didn’t mean me. They mean a CRU well, that’s not realistic that I had that in my mind in terms of, okay, I need to set up foundations.

Sunny Eaton (23:36):

Right. And then the next thing I did was reach out to some of our more effective known, well known to be effective CRU, you know, Philadelphia, Detroit, these units that are just doing the thing they’re doing it . And they were incredibly helpful to me in sharing documents and sharing processes. So once we got started, we got started, but we got started with foundations. We got started with a system for investigation, different stages of review, a very loose, but we’re working on it. Philosophy for triage , you know, everything is evolution in a CRU. It just is. And we also removed a few roadblocks that we identified pretty quickly that were in place that were maybe holding up some of the progress of our own unit. You know, for example, our unit at the beginning did not did what many units do, which is not consider applications for people who pled guilty. Okay. Well, immediately I identified that as a problem immediately, I talked to Detroit and Philadelphia and other units, and they also removed, they started with it and removed that requirement, right. Because what do we all recognize? We recognize that people plead guilty for a lot of reasons that have nothing to do with guilt, right? And sometimes evidence changes, information changes, science changes. So even if you’re a defendant weighing the evidence against you and making decisions, well, that evidence may change,

Zack Glaser (24:58):

Right? From the defendant’s standpoint, you look at the evidence and you say, I didn’t do this, but

Sunny Eaton (25:03):

Right.

Zack Glaser (25:04):

If I take this to trial, we are gonna do this. If I don’t take this to trial, you know, I have a lesser thing, the evidence doesn’t look great for me right now. Right. And, and when that does change, when that shifts, the calculus completely changes. And I think that to me, and I could be totally wrong about this, cuz I’m wrong about things all the time. That idea comes from having a defense council mind of like, no, no, no. We when we sit and talk to my client about whether or not they should plead guilty, I know that there are many of them that say, but I didn’t do this.

Sunny Eaton (25:37):

Right. But any good defense lawyer is going to do a cost/benefit analysis with their client. I mean, I had a rule of thumb as a defense lawyer. Look, I’ll try anything. You want me to try this case? You wanna have your day in court, we will do it. But at no point, are you going to be able to look at me and say, you didn’t tell me this could happen. You didn’t explain to me what the weight of the evidence was against me. So I go through it and I think we all do so a, a defendant that doesn’t have something like DNA in their favor but 10 years down the road DNA shows up that is a very different cost/benefit analysis.

Zack Glaser (26:12):

Right. Right. And so we can’t just close that door and say, well, you pled guilty. So obviously in your mind, you’re guilty. Yeah. So I, I think that’s great to, to pull this away. I wanna take just kind of a quick second to say this is like setting up a business. It is any business where you take a moment, get your foundations, correct. Get your processes in place. Because if you just go out guns blazing and say, okay, we’re gonna try to figure everything out. A) you’re gonna wear yourself out. You’re gonna overuse your resources and you’re not gonna do anything effectively. Yes. You’re gonna get some specific things done, but we’re not gonna get things done broadly. And then we’re not gonna have systems in place that are gonna be able to do this on their own because let’s face it. You have a finite amount of resources, a finite amount of time, no matter what

Sunny Eaton (27:02):

And efficiency has to be key . I mean, and so if it took me a couple of months to put processes in place that made everything more efficient, going forward, made everything more transparent, made things more organized. It was just worth it. And it is I’m glad you said it was like running a business. It’s funny, even though I operate within a DA’s office, I often feel like the leader of a small nonprofit. Yes

Zack Glaser (27:24):

Yeah. I could see that. Yeah, absolutely. And I, I think getting into that, the idea that there’s a finite amount of time, finite amount of resources, but with this it’s special because you’re looking at specific people and you’re saying, while I’m setting this up, you’re in prison, you’re in jail. How can I justify that? So there’s a lot of, of kind of moral, ethical, philosophical, I think is probably a better way of saying philosophical questions that you have to ask being part of the, the CRU here. How have you, I guess sort of lack of a better question, how have you found that? How have you dealt with that?

Sunny Eaton (28:01):

You know, it’s not easy. I, I admit that it has taken a lot of personal discipline to not feel guilty every time I’m at a movie or out to dinner and not working on these cases because I’m someone even from my own travels. But I, I live my life with the ticking of a clock sound in my brain. I mean, I’m constantly tick, tick, tick of every single moment of life that’s going by. And I think about that for other people. You know, and sometimes I wanna move things along faster than the defense lawyers ready to move things along. And that’s a very frustrating situation to be in, you know, and there are strategic reasons for those things. It is complicated, but I’ll say this, the number one thing that I have not just identified, but also work very hard in every system that we put in place is we deal with bias and I don’t care what the research and the data show.

Sunny Eaton (28:52):

I don’t care what the data says is the number one reason for wrongful convictions. I would swear on my life right now that underlying all of those reasons is bias. In some form or another. And I have seen it in myself in ways that I didn’t understand. Right. I’ve seen it reviewing these cases, even when there’s misconduct, there’s bias underneath it. Even in my own team, you view evidence through the lens of your own life experience, right? You just do something that seems sinister to you because it’s foreign to you seems completely natural to someone else . So we have to, even in our systems, we put in place, we are very careful. I am never the only eyes on an application before I reject something or move it forward. I put a second set of eyes on it. I never wanna be the sole the, the sole voice, the sole brain weighing out is this worthy of our time to investigate. So we always have at least two eyes at every single stage.

Zack Glaser (29:50):

So I, I think the other thing that, those two things running this, like a business and kind of like making sure you don’t have bias or fighting bias where there’s no way we can make sure we don’t have bias, but fighting bias by making this thing kind of a collective that seems to me like it would help have this CRU or have the methods of the CRU not quite at the whims of who the da is at the time. Right. You know, it seems like it would give it more of a life, more of a stable life as well. How do you view what we’re building here and how do you create this CRU this unit that has kind of some substance going forward as well? Because we all are in our jobs for, for only certain amount of time, one way or the other, you know?

Sunny Eaton (30:32):

Right. You know, and it’s a good question. Because to some degree it will always be at the whims of whoever the elected da is, anything in the DA’s office will be right. I mean, they set the budget, they set the tone, you know, but we are working very hard to put in foundations and more importantly, to educate our community. Because if the community wants this, they will demand this. If there would be a community uprising, if we suddenly ended it, that speaks well for us, you know, we’re very proud in Nashville that a year ago we won Nashville scene best, kept promise in Nashville. And that’s something yeah. As a CRU director, what gets better than that. Right. Right. So that is incredibly important. Now we’ve also put in a lot of systems even to that end, because certainly, you know, I don’t wanna make it political, but, but of course, whenever there’s elections, whenever there’s possible changes in leadership, people start throwing mud left and right. And one of many comments that came was that Glen, for example, picks and chooses our cases. Well, I find very few things as offensive as that, because general funk has nothing to do with what cases we choose. In fact, he doesn’t even know what cases we’ve worked on until the investigation is done. And I put a report on his desk.

Zack Glaser (31:44):

Which was part of what you were trying to do is separate this, this unit from the day to day of the da as well.

Sunny Eaton (31:51):

And we’ve done that now in an ideal world, if we had more resources, then we would be probably in a totally separate building. Although I will say that my opinion on that has changed some from when I started. Okay. When I started, I thought that was something very important. I have now seen. I think I do a lot of good being present in my office.

Zack Glaser (32:13):

Ah, yes,

Sunny Eaton (32:14):

I am very separated from prosecutorial work prosecutors in my office don’t know what cases I’m working on. I am on a different floor. I don’t interact day to day , but being in the office in some ways, normalizes this, and it’s really important that this is normalized. Right. Very important. I am also offended at a different criticism that comes in, that it comes in as a question all the time. How can, can you review the cases of your colleagues down the hall, right, right, right. On its face. This sounds like a valid criticism, right. Unless you know how we work and unless you give some respect to lawyers being lawyers, and the reality is the defense bar has accepted peer review forever. That’s post-conviction is peer review. Another lawyer who you work with, you may be friends with, you may have drinks with reviews, your work and files something in court saying you didn’t do the job thoroughly or there’s something else you could have done incredibly normal for defense lawyers. Right. So I don’t know why we think prosecutors aren’t capable of the same type of professionalism. Right. And the reality is I’m not out to ruin careers. I’m out to make our system better. I’m out to make the DAS I work with better DAS . And if we can right or wrong without ruining a career, I wanna do that.

Zack Glaser (33:31):

I like this idea of normalizing that we can have things that went wrong without being, you know, Sinisters sitting there, you know, twirling our mustaches. Right. And in order to do that and admit that we say, okay, well we will have this sort of review. And I, I really like mirroring it or, you know, connecting it with the review of defense council a lot of times, because yes, that is a very normal thing. And frankly, many, many people, you, you send those things up and you say, I didn’t get proper defense all the time. And there are attorneys that friends of yours that will go and say, I’m gonna fight for this person and say that you did right. Mess something up or do something. Well,

Sunny Eaton (34:11):

The reality is we’re all humans, right? I mean, there’s not a single, I considered myself a fairly good defense lawyer. And there’s not a single case. I can look back on and not think there’s something else I could’ve done differently or better. One more thing. And the second part to my response to that criticism is I don’t get in the way of anything. And I think that’s what a lot of people don’t understand is one, there’s no right to CRU review. Right. But the good part about there not being a right to CRU review is I do nothing to get in the way of any of the other legal avenues and options that would be available if I didn’t exist. , I am only a tool. So I don’t understand the criticism that says CRU shouldn’t be in prosecutor’s offices. When all we can do is potentially give another light of hope to someone who has nothing left. Right. We’re not a roadblock ever.

Zack Glaser (35:00):

Right. I kind of think of that by connecting it with something like the innocence project that is obviously not in the, the DA’s office, but they’re, they’re pushing for change. They’re pushing for specific change in specific cases, but they’re also not connected to the DA’s office. The one thing that you can do, or, or one of the many, but one thing that you can do is like you said, affect change on policy. Yes. You can be in the room and say, I see these biases that are coming up, or I see these specific things that keep coming up over and over and over maybe it’s policy. Maybe we can change that. Maybe we can affect that going forward. And I think that kind of goes into one of the questions that I had in my head coming into this. Do you see any themes kind of in the convictions that you’re reviewing? Have you seen anything where you say we can change that and we can affect things going forward?

Sunny Eaton (35:53):

Yes. A couple. I mean, aside from bias, which I, I know, you know, it sounds like such a cheap umbrella. It’s not, it is the heart of all of these problems. It, it really is. But beyond that, most of our cases have had an aspect of scientific evidence mm. In them. Okay. And so this is becoming, I’m trying not to become an activist about this issue and stay objective, but reality is we have a problem. We genuinely do. We have a problem with whenever I think we rely and I’m talking about DNA aside, I’m talking about things that have evolved more. I mean, once DNA came on the scene, it’s been tested, it’s been proven. It’s pretty fantastic. And there hasn’t been a lot of evolution or degrading of its value. Okay. That is not the same with other scientific evidence.

Sunny Eaton (36:41):

What we’ve learned about arson has changed considerably. What we’ve learned about shaken baby science has changed considerably and head trauma to children. Even what we’ve learned about fingerprints has changed, right? There’s all these evolutions. And I, I think we have a real problem, and this is not the most popular thing to say, but when we rely solely on scientific evidence to convict someone. I have become a firm believer that there should be something to corroborate that okay. Something, especially when we have an area that has evolved, we have to consider the possibility that it will continue to evolve. You know, and I had a young da ask me when I, I said this at a talk recently and a young da asked me a great question. And these are the questions that affect change. What am I as a young da who’s handed a case supposed to do?

Sunny Eaton (37:29):

When I have our medical expert, give me a report and say, this is what happened. I’m not a scientist, right? I’m not an expert. And we had this wonderful discussion about how to better scrutinize this type of evidence and the importance of corroborating it. And the importance of doing a quick, a quick Google search. Did someone think differently about this 20 years ago? 10 years ago. Five years ago, even just asking those questions can make a more educated in how they, how they proceed or what they demand or how they look at evidence. Right. I’m working on, on a case right now, frankly, where I just did a, a ton of Google research on the, the expert involved. Okay. And, you know, in many ways, this expert is unimpeachable , but I found one very opinion-full professional article. Okay.

Sunny Eaton (38:21):

That made me concerned about the bias of this expert. Does that make me wipe what they had to say off? No, no, it doesn’t, but it makes me just a little more scrutinous in the weight that I give it and that that’s what prosecutors can do, but we have to have these conversations. You know, we have to do, but so scientific evidence has been an element in almost every case that I’ve worked. Another factor there have been Brady and discovery issues. But one thing that I wanna say, at least for our office is they’ve rarely been on the part of the da now with that said, I mean, it’s true. With that said there’s no I in team and we’re responsible for anything within the possession of the state. Correct. But it has often been information that the da never got, it never saw for a variety of reasons, for a variety of sources. But that’s one thing I view as a, a central to my role is I now help get that information to the defense lawyers. I help them gather information that would not be easy for them to get,

Zack Glaser (39:19):

You know, that’s an interesting thought there where that’s affecting change affecting policy, if you say, okay, Hey, in this case, this information didn’t come from this third party. That is really still again, this state. Okay, well, we’re gonna overturn that one or we’re gonna change that one, or we’re gonna say that we don’t have confidence in the result of that one. Okay. Well now we say, how do we go make sure that doesn’t happen again. Yes. And, and that’s the other two parts of what we started with of like changing the policy and trying to make sure that we’re not doing that again.

Sunny Eaton (39:50):

And that’s not just about educating the prosecutors either it’s not. Sometimes it’s been about educating defense lawyers. Right. Because there is this, I, I won’t say it’s a discovery trap. It’s a discovery reality in some state that if the information was available to the defense, right. And they also didn’t get it. Well, then there’s not a, there’s not a rule violation. Right. If it was readily accessible, so they’ve gotta know where to look. Right. And I’ve learned a lot about where evidence lives that I didn’t know, it lived before as, and the defense lawyer in my brain has been blown away by it. Never. I never thought to look for it there . So I’m also able to provide education to the defense lawyers for their own investigations, because I have found in every case it’s been a perfect storm of issues. It’s never one thing it’s never a detective who committed misconduct and that blew it up. Right. Usually if there’s a detective who committed misconduct, there’s also a defense lawyer who could easily have found some of that information. And didn’t or a prosecutor who simply didn’t know, or there wasn’t a system of institutional memory in place to make sure they knew it’s a perfect storm of how these things happen.

Zack Glaser (40:57):

Well, I, I think that highlights the idea again, that when we’re dealing with criminal law, we generally don’t have somebody or 15 people that can say that person did that thing on that day. At least not the trials that we go to. And so we’re talking about weight of evidence. We’re talking about how much we believe this evidence, how much a jury believes this evidence. And what we’re doing is we’re, we’ve created this system that we want to err on the side of the public of humans, of people. And so we would rather somebody who is slightly guilty and maybe more than slightly guilty go free at times than have an innocent person in jail. Yes. And I think that mentality is, is what goes with putting these processes in place.

Sunny Eaton (41:47):

I agree completely. But with that said, there is another factor that feeds into all of this. I mean, even this idea of, I won’t, I don’t say idea of, but this thing that happens of well, more likely than not, they did it. Right. So that’s okay. Which it’s not okay. But it is victims. And as a prosecutor and I, I think to not to be overly apologetic, but there is a reality to the biases that are created simply with the role of a prosecutor. , There is a tremendous weight on these shoulders of a prosecutor who is dealing with a victim or a victim’s family in pain. There is tremendous weight there. And often these prosecutors have to rely on what they’ve been told from experts or investigators. They’re telling them this is who did it. Sometimes it’s something terrible.

Sunny Eaton (42:36):

They have a victim’s family who also believes it and wants justice. And they feel the weight of that, right. That weight is tremendously biasing, tremendously biasing. Right. Even when we have seen, as we did in the case, I worked on recently inappropriate comments made by a prosecutor during trial. Inexcusable. I mean, frankly, inexcusable comments with that said, even though I acknowledge that they are inexcusable, there’s also a human part of me that realizes this is a prosecutor who believed that the two people at that table were guilty. Of an incredibly horrible crime. Right. And they don’t want them to go away and you might be willing to go further than you would when you have that weight on your shoulders or that, you know, you should go. And so we have to, we will have to start, I think, acknowledging and dealing with the human aspect of all of this, because it’s the real wild card in the situation.

Zack Glaser (43:31):

Absolutely. I, I think that’s very important to, to keep in mind. So

Sunny Eaton (43:34):

One thing though, there are two things I actually do wanna talk about.

Zack Glaser (43:38):

Oh, okay.

Sunny Eaton (43:39):

Two major things in terms of access to justice that I’ve really looked at is the defense. And even the state just do not have the resources. I mean, frankly, we have a problem in this country of demanding criminal justice, and justice for victims and fairness for defendants. But as a community, we don’t provide the resources to make that happen. Right. We do not provide appropriate resources for public defense. We just don’t lawyers who represent indigent clients are not appropriately funded by the state in any way, not in their salaries, not in their funds for investigation, right. They’re often bringing a pencil to a knife fight in that regard and the same goes for prosecutor’s offices. I mean, frankly, conviction review units, hopefully as we’re more normalized and people see the value, we should have a, a ton of resources.

Sunny Eaton (44:29):

But we don’t similar challenges, similar challenges for prosecutors’ offices as defense lawyers. But that also means that defendants don’t always have access to the types of scientific testing and experts that could assist their case. And so we’ve gotta look at funding, it indigent defense better. We’ve got to look at allowing more experts to come in. So juries can actually make educated decisions. That’s one soap box of mine. Okay. The second one, and this keeps me up at night and I’ve been on a panel and talked about it recently, but we don’t get a lot of applications from women and non-English speaking convicted people. And it, it keeps me up at night because why is that? You know, just statistically of course there are some innocent women and innocent, non English speaking people. Here’s the problem for women, the women. I think there’s a lot of issues around this, but the number one is women advocate for men.

Sunny Eaton (45:24):

I get a lot of letters from wives and girlfriends and mothers and sisters. I don’t get a lot of them from husbands and boyfriends and sons, women just don’t get the same level of advocacy and also may not be as good at advocating for themselves. Which really diminishes their access to help from programs like ours and programs like the innocence project. Right. Because a lot of these exonerations you see, were, were public influenced. A lot of them were. Without that, it just puts them in a, in a more difficult position. And then you think about the same thing for non-English speaking people who may not understand at all that we exist, right. May not have family close by or with resources, and we’ve gotta figure out how to solve that problem. We have to, we’ve gotta get information about innocence projects, about conviction review units into the women’s prisons and to non-English speaking people. And it’s something I’m very focused on.

Zack Glaser (46:19):

I think that’s, that’s extremely important. And I, I had not thought about that. And again, that’s kind of that the biases that are there, that nobody intentionally put that there. Nobody said we’re gonna go out and we’re gonna make it more difficult for women or for non-English speakers to have access to this conviction review unit or innocence project or something like that. But at the same time, from our perspective as the public, as the people of this country, essentially, you know, we don’t want that to be the case. Yeah. So how do we affect that? You know?

Sunny Eaton (46:54):

Right. And when the community, when our legislature starts seeing conviction, review units as essential to a district attorney’s office, hopefully we’ll end up getting better funded. And the more funding we have, the more work we can do, the more cases we can look at, because, you know, I think in Nashville, we’ve done a tremendous job. I mean, we’ve done a lot of exonerations in a short period of time. Plus we’ve done 31 drug free school zone motions. Right. But at the most conservative statistic, I mean, if you’re talking about one to 2% of the time that we get it wrong, you’re still talking about hundreds of people in prison for things they did not do. And when we normalize this as part of a DA’s office, then we will have more people who are able to work on this problem.

Zack Glaser (47:40):

Well, and, and I think about to us, that’s one of hundreds of people to them. That’s the entire world, right? There’s one person sitting in jail who, you know, could be exonerated that’s their entire world. And there’s nothing more important to them than that.

Sunny Eaton (47:56):

Right. And the only people who win when we have someone innocent sitting in jail is the real perpetrator, but right. Who loses is the actual victim. The defendant who we have now victimized , you know, there’s more loss involved when we, we have someone innocent imprisoned.

Zack Glaser (48:13):

I think that’s a really great point. Well, we’ve gotten into some, some very, very deep philosophical thoughts here. I’d like to end on a little bit lighter and it may not go a little lighter, but what’s your favorite part of the job so far?

Sunny Eaton (48:26):

Oh, you know, there’s so many things that I love about this job. It’s true. I, I mean, exonerations are, you know,

Zack Glaser (48:34):

I mean, how could that not be the answer, right.

Sunny Eaton (48:36):

Right. I mean, it is it’s, you know, it, it may be spitting in the wind to some degree. It may be, you know, it’s one person, it’s one person and one person’s family, but I mean, that’s how we view the whole system, right. Or we’re supposed to is person by person. Right? So this opportunity that I have, and I, I wanna be clear about this because it is different in Tennessee than in most states. And it has an up and a downside , but I’m not making these decisions. This is not me. I’m not a sole person out here. Right. Being judging jury, I investigate a case, my write a report and that’s how this happens. And sometimes it’s a small investigation and sometimes it’s a multi-year investigation. And I write a very detailed report, hopefully one that answers everyone’s questions about every single piece of evidence.

Sunny Eaton (49:21):

I hand that to the elected da to Glen, he reads it either. He agrees with my decision or he asks for more information, or he may not agree that hasn’t happened yet, but it could easily, right. Then we don’t have standing in the state of Tennessee. And this is, this is gonna blow some people’s minds. But a district attorney’s office in the state of Tennessee does not have standing to go to court and fix its own mistakes. So even if we, as a DA’s office who have done a diligent investigation, and remember we were the indicting authority and we decide we got it wrong. We can’t just go to court and say, we got it wrong. I wanna fix it. So we have to rely on the defense attorney, which also means sometimes when it’s not an innocence project case, we may have to seek out a defense attorney willing to take on this case, which we’ve done in the past.

Sunny Eaton (50:10):

And then they have to file a motion. And we simply presented in a hearing like any other to the judge. But the difference here is the state is also presenting a finding and an investigation to the judge. And that is a monumental difference. And then the judge has to make findings. So this is, is still ultimately a court decision under all of the standard and legal options available. It’s not something operating outside of the legal system, but for my job, I get to do something real. I feel like I am actually making a difference in a system that it is often difficult to see that there’s a lot of people who do make a difference in our system every day. But, but the difference I make is quantifiable. And I love that. I love that. I can actually say here’s what we’ve done.

Sunny Eaton (50:57):

I mean, and here’s one other example of that beyond exonerations, because we do evolve whenever the law allows us. And recently the law in Tennessee evolved to allow us to go back and look at people who were sitting in prison on drug free school zone cases. This is a major deal drug free school zone laws, and their intent made sense, but in their application were just rife with abuse and discrimination and, and disparate treatment. . And there were people sitting in 20 year prison sentences for selling weed in their front yard. And the law recently gave the state standing to file motions, and we just did a bunch of them. And so far we’re up to 200 prison years saved and about $7 million to the state. I can quantify the success of what we’re doing. Not everyone can do that. I love that about my job,

Zack Glaser (51:44):

Right? That’s fantastic. Well, Sunny, I could talk to you for a while for this. And, and obviously you’re a wealth of information on all of this and have, have a lot of good stuff to get to the public. So if anybody sees articles on, on Sunny or, or other things like just dig into those and you can get a little bit more information, but I really appreciate you being here and, and talking with us about this.

Sunny Eaton (52:06):

Thank you for having me. I, I think it’s really important that people learn about this. So I’m grateful.

Zack Glaser (52:10):

Certainly, certainly. Thanks.

Speaker 1 (52:14):

The Lawyerist Podcast is edited by Britany Felix. Are you ready to implement the ideas we discuss here into your practice? Wondering what to do next? Here are your first two steps. First. If you haven’t read The Small Firm Roadmap yet, grab the first chapter for free at Lawyerist.com/book. Looking for help beyond the book? Let’s chat about whether our coaching communities, right for you. Head to Lawyerist.com/community/lab to schedule a 10 minute call with our team to learn more. The views expressed by the participants are their own and are not endorsed by Legal Talk Network. Nothing said in this podcast is legal advice for you.