The death row assembly line

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Welcome to the Grey area. I'm Vox reporter and producer Miles Bryan sitting in for Sean today. My guest is Pamela Kohloff. She's a writer for the New York Times magazine and pro-publica and she has a new book out called "To Catch a Devil." Our conversation focused on the death penalty. Is there a humane way for the state to kill someone? Does the death penalty bring closure to victims' families? Should the death penalty exist at all? It's a great conversation that goes some surprising places. Pamela Kohloff, welcome to the Grey area. Thank you so much for having me. We're really excited to talk to you about your reporting on the death penalty in Florida and about your new book "To Catch a Devil," which is about a jailhouse informant whose testimony puts a guy on death row. But let me just start with a question about why you're interested in this. You've been covering the justice system for decades, you've been writing about the death penalty for decades. What keeps you coming back? So I grew up as a staunch advocate of the death penalty. I was a child of the 80s and was a kind of law and order person growing up. And when I moved to Texas and started reporting in the mid to late 90s, it was sort of an unavoidable topic here. So I was frequently going to Huntsville, Texas. I was covering executions. I was writing about both defendants and victims' families. And I think I had the journey that a lot of Americans have had over that time period, which is seeing how deeply, deeply flawed this institution is and how often we get it wrong. And I think getting to know some of the people inside that system, seeing the impact that had on people who work within the criminal justice system, as well as victims' families and defendants, really changed the way I came to think of the death penalty. And that became sort of an obsession, I guess you could say. That is so interesting. And most people won't cop to changing their minds. Before we go any further, why were you pro death penalty? Was that something you thought through as a young person or just were instinctually supportive? It was a reflective. I came up in the tough on crime era, grew up in New York City in the 80s. And I don't think it was a position I had thought deeply about or really knew much about. I think I understood it the way a teenager does. Maybe does something, you know, they're the worst of the worst quote unquote. They commit a crime that is beyond egregious. That's the penalty you get. I hadn't thought it through more than that. And I think for me, and I think this is true for a lot of Americans, the advent of DNA testing really helped show. I mean, there were, I remember one turning point for me, which came in the late 80s, was seeing an incredible documentary by Aral Morris called The Thin Blue Line, which I cannot urge. Classic. Yes, to watch enough if they haven't seen it. And it's about a wrongful conviction in Dallas in Texas, where I'm now based. And it was so shocking to me at whatever I was in high school, not sure what grade that you could not only get a case that wrong, but you could get a case that wrong and send someone to death row to give them the ultimate punishment. And that combined with what followed with this revolution in DNA testing that showed the people who said there are innocent people in death row, they were not crazy. This was true. And it was more common than I think anyone realized. And it's sort of laid bare all of the problems of the criminal justice system, all of the different things that lead to wrongful convictions. So we're going to get into those problems, but let's start with kind of the state of the death penalty in the United States now. You mentioned, you know, you were a child of the 80s and supported the death penalty. And from reading your reporting, it seems like we put more people to death as a country back then than we do now, dramatically more, right? Dramatically more. So the number of executions has dramatically fallen off. We have many states now that have moratoriums or, you know, simply aren't acting on the death penalty. And I think we can see in other states places where limits are being put or things are being slow rolled. There are a few exceptions to that, Texas being one of them and Florida, which I've written about a great deal. But on a high level, why has the use of the death penalty fallen off so much? And maybe we can give people some numbers, right? It's pretty dramatic. It's not like a 10% decline. It's a pretty dramatic decline. I don't have numbers in front of me, but by and large, you now have a nation that's split over this issue, whereas again, when I was growing up, it was just the reflexive position that, you know, 70 plus percent of Americans were pro-death penalty now, depending on who we're asking and the way we're asking, we're looking at closer to anywhere from 45 to 50%. I do think in talking to many, many people, friends and acquaintances about my own reporting, most people just haven't thought about this issue deeply. It really doesn't go below a surface level. And so people aren't necessarily paying attention to these cases and the many problems that so many of them have, not to say that there aren't guilty people, of course, on death row, but these cases are particularly plagued by a host of problems that are magnified in these cases. How much of the decline in the use of the death penalty has to do with in your estimation? People feeling like there's no way to do it that's humane, that's constitutional. But we're taping shortly after news came out that a woman in Tennessee, who was on the death row, authorities attempted to put her to death, they gave her two doses of lethal injection medication and she survived, and then the governor there suspended the use of the death penalty indefinitely. I mean, you read about something like that and you think, like, God, like, is there a way to do this? Right. And this is the second botched execution in Tennessee this year, just to give you a sense of things. So this is more common there than in other states. They've changed their drug protocols and what we don't know a lot about what went wrong with Christophe. She's still alive as far as we know. As of this recording. Right. Whereas in May, it was an issue with accessing veins, which can be an issue with lethal injection. I think it's also important for people to remember, you know, we had the electric chair as the method of execution through the 80s into the 90s in some places. And so while this is considered a far more humane, quote-unquote way to do this, we can see that nothing is perfect. I will say while the issues of botched executions, I think are very important and I think there's some other ones coming up to be concerned about, which I can speak about. I am more interested in how it is that other errors are made that other people end up with the ultimate punishment when that perhaps was not the right punishment for what occurred. Yeah. And I want to get to, you know, how that process plays out. But as we're, while we stay on the topic of sort of how the death penalty has been used nationwide over the last couple of decades, the big picture, maybe some of its decline is due to difficulties in finding a way to do this in a way that people agree is humane. You've also written that it's just expensive, right? And on top of that, you know, DNA evidence has made it clear that many of the people who were being convicted were not guilty or there wasn't strong enough evidence to convict them. Like, how do you think about that mix of factors? Yeah, well, I was really struck. So Florida, which I've spent a lot of time writing about, Florida is the leading place in America by a mile in terms of the number of executions and has a very large death row. Florida is also the leader in wrongful death row convictions. So just to give you a sense of things, Florida holds the distinction of 30 death row exoneration. So what that means is in the modern era, we have had in the past roughly 50 years, there have been 30 men who were given dates of execution, who now walk free. And for anyone who pays any attention to how the criminal justice system works and how incredibly difficult it is to overturn a wrongful conviction. If we have 30 people in Florida who have that distinction, we know that there are many more. Yeah, let's talk about Florida. As you know, Texas used to be the leader in putting people to death. Florida has taken that place. What's going on in Florida? When did you realize that something was different there? So it really ramped up last year. So last year Florida executed 40 percent of the people who were executed in the US in last calendar year. In this year, there have been 16 men who've been executed in Florida so far just to give you a comparison. Texas is the next state with the highest number of executions and they have executed six men in that time. So, you know, we already have outlier states, primarily southern states, and then we have Florida being the ultimate outlier. And there's so many things that make the administration of the death penalty interesting and unique in Florida. The thing that fascinated me the most is among active death penalty states right now, Florida is unique in that one person determines who it is from the hundreds of men on death row, who will receive an execution date and what that execution date is. Who is it? And it's Rhonda Santas. Governor Rhonda Santas. And so I went back and looked at what were the patterns here? What were the things guiding Governor DeSantis' thinking in setting these dates and was fascinated to see and very troubled to see? There are a number of men who've been there so long. They've been there since the 1970s. These are men who were convicted when Gerald Ford was president just to make this real to people. But the dates are not being sat among the men who are what are called death eligible, meaning that they've gone through all their appeals. They aren't being done chronologically. There's no rhyme or reason to the process. And so there's this speculation game among victims families, prisoners, their advocates about who will be next. And men can sit there on death row for decades with that hanging over them. And that is a Florida phenomenon. Yeah, I found that really striking and surprising reading your work. And learning that people are commit crimes decades and decades ago are sentenced decades ago and are facing their fate, facing execution by the state for so long. Like this sort of purgatory drags on and on. You know, you wrote about the Florida death row turning from something like a purgatory where people stay for a long time and to something closer to an assembly line, right? Like I think you used a factory metaphor. Yes. Why did you do that? So I was so struck by the fact that in Florida in order to have this pace of executions, there were people who were receiving their dates as little as 30 days, sometimes less, sometimes fewer out from their execution dates. And just to give people a sense of why that is unusual, there are so many things that kick into gear when a death warrant is written. There are numerous legal maneuvers and next steps that happen in the courts. Just to give you a quick example, there was one defendant in Florida this spring who five days before he was scheduled to be executed, was finally granted the ability to test DNA evidence in his case that had gone untested. So he had great lawyers who, you know, didn't sleep to make that happen. But that it came as close as five days to his execution date. I think should give us all pause about, you know, how fast this is moving. So you have multiple people sort of in the queue at the same time. There's a place at Florida's what's in a different unit than Florida's death row that you're taken to once you get your date called death watch. Tell me about death watch. Like what does it look like? So it's a feel like in there. Death watch is roughly 30 feet from the execution chamber. There are three cells that are there when you receive your date, you are taken from death row to death watch where you're put, I don't want to say solitary because if there are other men who are held there, there are one or two other men, but you're in a far different situation than you would be on death row where there are people walking, you know, guards and other people, you know. So from that point forward, there are roughly 30 days where you are held again within steps of where this will take place. And to me, it was chilling when I was doing my reporting in the spring on this story that I published this summer that all three cells were filled. And as soon as one person was executed, the pattern was that often the next day a new death warrant would be signed and there would be a new person place. Really dark. And this sort of like assembly line leading to execution is really striking. Why do they do that? I mean, why do they put these people next to the place where they'll die? I mean, I think that's one of the many questions I had about that. You know, we talk about not wanting to have cruel and unusual punishment about it. You know, our constitution does not uphold that, but it's such a unique kind of mental torture, I think, to be 30 feet from where you'll be put to death. The other thing I was struck by was the waiting aspect. So if you're on death row, again, you always have this hanging over you. So I talked about the way in which, you know, when you're in that kind of sensory deprivation, you become highly attuned to sounds and smells and things like that. And I interviewed someone who's not on death row anymore, whose sentence was commuted, who talked to me about recognizing that jangle of keys and the steps that this group of people who comes to deliver the death warrant takes and knowing that someone is about to be served with the death warrant, but not knowing, is it me? Is it the guy next to me? Is it someone down the hall? And I just want to say, I understand that, you know, there's a counter argument to all of this, which is these are people who most often committed terrible crimes their victims did not know when they're, you know, when when when they were going to be killed. I do think, however, as, you know, a state that administers this thing, there has to be a rhyme or reason to this. Otherwise, you have total chaos, including for victims families who never know, are they going to wait one month? Are they going to wait 15 years? They don't know. I do want to stay with, um, death row inmates psychology for a second, because you've talked to a lot of men on death row, and men who have been executed. And reading your stuff, I kept thinking about time, you know, they they have so many years where they're waiting to be killed. And then like you say, it sort of contracts all of a sudden, the their horizon suddenly gets dramatically shorter and it's happening. Like, how do these men think about how do they cope with the kind of the boredom and the waiting, and then just always knowing there's the possibility that it could suddenly accelerate like that, that suddenly it could be around the corner. So I think it varies widely. And of course, some of that has to do with mental health and other issues. But, you know, there are some people who literally lose their minds. You're in essentially solitary. You're in a six by nine-foot cell often for decades. You don't have a connection to the natural world. You see your family rarely, if at all. So some people come completely unraveled. The people I've interviewed who were able to survive this isn't quite the right word, get through it, were people who had strong family ties, where family was involved in coming to see them. And I think, you know, apart from the death penalty, those family ties are so important with non-capital cases. If we want people to be able to re-enter the world after what they go through in prison, those family ties are so important. At T-Mobile, the new iPhone 18 Pro is here with a big leap in battery life. And you can get it for nothing upfront with so many reasons to choose T-Mobile. You'll want to talk about it. I heard at T-Mobile, you can get iPhone 18 Pro for nothing upfront. and get $1,000 off. Pass it on. Hey, nothing today. No taxes, no fees, nothing down. Pass it on. Hey, Mickey, pass it on. iPhone 18 Pro has the most advanced iPhone camera ever. Pass it on. A T-Mobile? You can get iPhone 18 Pro for nothing upfront. Pass it on. A T-Mobile get $1,000 off the amazing iPhone 18 Pro with no trade and need it. The 36 monthly bill credits when you switch to T-Mobile on a qualifying plan. 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Join for just $20 at bj's.com/maskeet and save 10 cents per gallon for six months. Open soon, limited time offer, new members only. (upbeat music) Let's talk a little bit about, you know, this situation in Florida, Florida's unique policy that allows the governor to be the only one making a decision about when men on death row are put to death. Do you know why it has that system? - So I would just wanna add one thing that goes to your question, but it's slightly different. I think it's really important to note that governor Lee and Tennessee seeing what happened last night we're speaking on October 1st. What happened with Christa Pike's botched execution? And again, this is the second boxed execution of the year. He put a pause on executions for this year. He is having a third party come in and look at protocols. And this is someone who's pro-death penalty. And I think those things can work together. You can be pro-death penalty and want this system to work as well as it possibly can. So what's interesting to me is that governor Lee has put a pause on things while governor DeSantis seems to be going more than full steam ahead. And again, DeSantis is doing that with this backdrop of all these wrongful convictions. And we can see from what I was just talking about with the five day window, you know, where this defendant got DNA testing with five days despair when you're moving too quickly, mistakes can happen. Mistakes can happen both legally in that with a case like that or they can happen in the execution chamber, which takes a great toll on everyone including prison staff. - Let me ask about governor DeSantis in Florida, which is who is, you know, going his own way. You report on how he has initiated and enthusiastically pushed for this dramatic acceleration in death row inmates being put to death. You're reporting kind of suggests or ask the question of whether this might be in part to boost his political standing. Like he's not going to be the governor for much longer. The election to replace him is in November. Maybe he's looking for a job and the Trump administration, maybe he'll run for president again. Do you think that's true? - So I will tell you that I tried so hard to figure that out and I spoke to so many different people in Tallahassee and elsewhere trying to understand what was in the governor's mind. And I can't say that I know. I can say that in the past, the playbook, and I think this has changed, but in the past, the playbook, particularly in Florida, was if you are strong, quote unquote, on the death penalty, if you're executing people with some regularity, that helps your poll numbers. We saw this in the 80s on forward, literally when people's poll numbers were dropping, this would be a solution to getting voter support. I do think the calculation of that has changed a bit as Americans' opinions of the death penalty have shifted. So all I can speculate to is I think sort of within MAGA world, obviously being tough on crime, and I want to revisit that term in a moment, but the perception of being tough on crime is something that holds a lot of power. But something important is Trump, when Trump came into office, the second time, the day of his inauguration, he's signed an executive order that was basically doubling down on the death penalty. Now, he really only has purview to some degree over the federal death penalty, which had fallen by the wayside, basically, and then under his watch, this tremendous number of people in his first term, were executed, and then he came in in his second term, and really encouraged, and I can't say directed district attorneys, because they don't answer to him, but highly encouraged prosecutors across the country to use the death penalty as much as possible. And you can see in Florida, the laws have been expanded, so that child sexual assault cases, for example, can now result in a death sentence. Things like non-unanimous juries can render a death sentence or recommend, I should say in Florida, they recommend it to a judge. So in Florida, now, and this is a recent change, you need just eight jurors to sign off on the death penalty, eight out of 12. So that's so different. We don't see that anywhere else in the country. So I think we can see the ways in which this sort of ties into, you know, you think about things like alligator alcatraz in this very performative aspect to law and order. I think what I've tried to do with my work is show that being tough on crime is not necessarily the things that we see politicians saying are being tough on crime. - Yeah, I mean, the system you describe here and in your reporting in Florida seems random and chaotic and cruel. You had this detail I can't stop thinking about where the victim, a victim's family, someone who was killed and whose killer was on death row, sent Governor DeSantis up Sharpie to try to get him to sign the killer's death warrant and he did with the Sharpie. - So again, these victims families are just as much in the dark as everyone else and many of them have waited many years. So one family got customized Sharpies. I believe they had the name, I don't want to get this wrong, but I believe there was either the name of the victim or the name of the defendant on them and sent that those customized Sharpies to Governor DeSantis who signs legislation and death warrants with a Sharpie and he did, in fact, not long after that, signed that defendant's death warrant. - Reading that, it strikes me probably a lot of readers as pointlessly cruel. But I do want to get at the victim's family's perspective because, you know, I imagine for people who have been waiting for someone who was convicted of killing or harming someone they loved, waiting for that person to receive justice for decades, like you say, many of these guys are on death row for a long time, it doesn't feel too quick. You know, they've been waiting for this to happen and they're happy it finally is happening. Like, what do you think of that? - So I think there's an arbitrary nest is what I would call it even more than cruelty that is troubling. We just don't know why certain people are being set at certain times. I think it's important for people to know there's a reason why defendant spends so long on death row and these aren't bad reasons necessarily. Our courts are set up in theory. The idea is that if we are going to carry out the ultimate punishment from which you cannot appeal, that you can't come back from that, that there should be extra safeguards, there should be extra layers of appeals essentially. I'm explaining this in a way that lawyers won't be happy with, but you get more bites at the apple. And that is absolutely essential because as we've seen time and time again with these cases, often there's, you know, not high quality council, a trial, and it's not till many, many years later in post-conviction appeals that a defendant finally an attorney who can bring to light some of these important issues. So there are important reasons why this takes time. At the same time, a victim's family often has no idea when a prosecutor says we're going to seek death. They don't understand that if they were instead seeking life without the possibility of parole, for example, what that would mean is if the person is convicted, you know, they have a right to a direct appeal and that's pretty much it. Again, I'm simplifying things, but that's pretty much the end of the road. In capital cases, you are coming back to court dates for 5, 10, 15, 20, 25 years. The victims' families are coming back. Yes. And this is incredibly stressful. It's not something that prosecutors always explain to victims' families. And then we've seen time and again that the idea of closure, that seeing someone put to death will give a family closure. So often is a very disappointing moment in what is already such an incredibly painful journey. When you talk to victims' families, people who are on the other end of these death penalty cases, what do you hear from them? A whole range of opinions and I think every family is different, but it is not uncommon. There have been many studies done in which victims have felt a sense of disappointment, you know, that maybe this thing that they'd been, again, think of the buildup to some of these. We're talking so many years that it didn't deliver what was promised. And then you at the same time have what I consider to be a new victims' family. You have parents and siblings and children who've lost a child, who've lost a parent because they've been executed. So there's just so much pain around so much of the way this has administered. Does any particular person you've spoken to come to mind, anything you want to share? You don't have to use their name if you don't want to. I am thinking in particular of one member of a victim's family. This was in a death penalty case in Texas that ended in an exoneration. And I spent a lot of time reporting on that and that reporting helped to lead in part to that happening. And when I spoke to a member of the victim's family afterward, he, there were so many emotions, but that family had been told a certain set of facts by prosecutors for so many years. And of course they believed that. Why would they not? And he was explaining, even though all the evidence of this person's innocence is there right before me, it's very hard for, you know, my mind understands, but my heart isn't feeling it yet. This is someone who we spent 18 years in court looking at thinking about and imagining him committing this crime against our family. And so you can see that's a wrongful conviction, but you can see in which the ways that victim's family is again in this sort of tough on crime mindset are often not served, that they have to go through a whole other ordeal like a trial is in and of itself just shattering, right? And that's kind of just the beginning of what victims families go through in these cases. 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I want to turn to your new book now, which is called Catch the Devil. It's also ultimately about at least partially about the death penalty in Florida. But it begins with a guy you met in federal prison in Texas nearly a decade ago. Tell me about him. So Paul Skellneck is someone I met in federal prison outside of Dallas in 2018. He was a Austin police officer in the early 1970s turned con artist extraordinaire according to the wording of one warrant for his arrest turned Jill House informant. And what that means is every time he would get caught doing whatever he was doing it started off with petty crimes and it very quickly escalated from there. He knew the game because he'd been a cop. He knew when he was in jail to look around and try to assess who is it who's here in the jail. And remember, jails are almost entirely pretrial detention people are awaiting trial. So there's the presumption of innocence. Who here in the jail do prosecutors and police most need a conviction against? And then he would go to them and say, hey, that guy confessed everything to me. Let me know if I can help. And he is prolific. He's like, I talk to Joe and Bob and Sam all in the last couple of hours and it turns out they all told me they did the crimes they were charged with. Miraculously, these total strangers who had everything to lose and nothing to gain by talking to him just poured their hearts out to him. This happened in more than 40 different cases. 37 of those were in one county in Florida that we got as start in Texas. There may be more. And I was fascinated by the way in which he was granted his freedom and returned for his testimony over and over and over again. And I was clearly quite pro quo. You know, the prosecutors would say, well, we're going to give him probation because he's been so helpful. And to be clear, you know, these deals, you know, prosecutors would tell jurors when Skell Nick was on the stand, they'd say, have I promised you anything for your testimony? And he could truthfully say, no, I'm here. You know, I used to be a cop. I'm trying to redeem myself. I'm trying to put my life back together because there's the implicit understanding in jail that if you help police and prosecutors that you're going to get something else. And so because he was freed over and over again, it emboldened him to commit far more serious crimes. And it also emboldened prosecutors because he was so good at what he did to use him in increasingly consequential cases, including ultimately capital cases. You know, I was shocked at how brazen Paul Skell Nick was. But I was maybe more shocked by how shameless the prosecutors who were so willing to use his testimony as kind of the linchpin of a bunch of cases were. Did that surprise you too? Or are you used to it by now? It would be easy to think that Paul Skell Nick is the villain of this book or the people who enabled him were. But I was interested in the incentives that the criminal justice system puts into place that sort of encouraged all this. When Paul Skell Nick is put on the stand in a death penalty case that I write about in 1987, he'd been doing this at four other prosecutors in the state attorney's office for six years. So the prosecutors who did this, you know, their mentors had done this, their colleagues and friends had done this. Numerous judges had signed off on this. So I was fascinated with the way in which a system sort of reinforces its own errors in that way and encourages bad behavior, where what matters is winning more than doing justice. Yeah, are we to think that this kind of dubious jailhouse informant behavior was happening, is happening in the rest of the country too, or how much of this was a Florida problem? Yeah, so this was a statistic I learned late in my book writing and it really blew me away. So the National Registry of Exoneration looked at all of their exoneration cases and how many had Jill House Informant testimony at play. So overall, there are 7% of wrongful convictions in which it was used in capital cases. On the registry, it's 25%. Whoa, right, one out of 4 cases that have ended in an exoneration involved a Jill House Informant. Should that stat and be enough to just sort of take every case that was a capital case that used a Jill House Informant and review it? From your lips to God's ears, I wrote an opinion piece for the Washington Post basically saying that. Okay. I mean, to me, this shows the incredible pressures that are on prosecutors in capital cases and, you know, just how incredibly damaging it is when you have someone who's what we call an incentivized witness. Get on the stand. This is someone who has nothing, right? They're in jail or in prison. And there's the possibility of freedom lying on the other side if they tell the right story. Why do you think juries were amenable to this? You know, you like to think that we should have that juries are our peers. It could be me or you, people swear an oath or, you know, promise to consider the evidence carefully and judge people's character carefully. And you see a guy like Paul Scalnick get on the stand who, you know, doesn't have a strong record by any spin. How was he? How are juries so quick to take his word for these things and take other Jill House Informants word? That was one of the big questions I had when I started reporting the book. And what I landed on is I think it was less the fact that he was this incredible rock contour, which he was to be clear. And that he was very charming and persuasive and knew how to really sell a jury on what he was saying. I actually think that's less of what was going on. What I think what's important for people to remember is when a jury is watching testimony like this, someone like Paul Scalnick is a state witness. So let's say the state witnesses begin with maybe the lead investigator in the case arriving at the crime scene, like an incredibly credible person. Maybe the next person is the medical examiner for the county again, very credible. It's in that same line of witnesses that the same prosecutor is saying, here's someone else who you should believe. And that's interesting. Yeah. I like it's like he's on the team. Right. He's one of us, which in fact Scalnick said to me when I first met him, he said, we never lost a case, which I thought was fascinating. And then you have investigators who might follow up and say, you know, yes, that's what he said. That's exactly what I found in my investigation. And you can see this echo chamber where sometimes jailhouse informants like Scalnick are getting their information just from little scraps about cases in the newspaper. Sometimes they're getting it from investigators themselves. And it becomes the self reinforcing thing. You're writing about, you know, the problems with jailhouse informants. This is the 1980s. I think at this point, decades later, we kind of have realized there were many problems with the criminal justice system happening during that time. Our prosecutors still were lying on people like Paul Scalnick as much as they were in the past. So we don't have good data because there's just no good data within the criminal justice system because it's a county by county level type of thing with these prosecutions. We do know that even though some groups like the Innocence Project has tried to pass legislation that we'd even just slightly curb this kind of testimony, that prosecutors have pushed back hard on that. And so what we have, we have a patchwork of a few, I think, well-meaning but largely ineffective laws that try to contain and limit some of this testimony. But I have yet to see one of these laws that I think is effective. There are things like snitch registries where your name is put on a registry where it says that you gave this kind of testimony. But again, it's county by county here in Texas, in Illinois there are reliability hearings where a judge determines whether someone should be able to testify in this way. In Connecticut, I think this is an interesting one. Juries are warned before deliberation that these kinds of witnesses are notoriously unreliable. Okay, so to catch a devil also takes you to Florida's death row. When Scalnick claims he overhears a guy locked up there named Jim Daily confessed to a killing. And Daily ends up convicted and sentenced to death based on the strength of Scalnick's testimony. You wrote a big feature on the case in 2020 that plays a part in getting Daily's case reviewed. What happened to him? So what ended up happening was Scalnick and Jim Daily were in the Pinellas County jail. This is on the Gulf Coast of Florida near Tampa. And this was weeks before Daily was supposed to go to trial. Scalnick is moved to the same area where Daily is in the jail. Listeners can read into that what they want to. Maybe it was coincidence. Maybe it wasn't. He said that Mr. Daily had confessed that he had killed this woman, a girl, I should say, Shelley Bogeo, who's 14 years old. This was a horrific crime that happened in 1985 that he had fully confessed to this and had told this horrifying story about, and before I say this story, I just want to say there is zero evidence to show that Daily who had insisted upon his innocence to anyone and everyone who had listened ever told this story. But Scalnick went on to say in court that Daily had said I was looking at her basically as he's supposedly holding her in one arm and knife and his other hand and stabbing her and saying she would not die. So she's looking at me, staring at me and she would not die. So he's not just placing this man at the crime scene. He's giving Joe something to emotionally react off of, which is exactly what happened and Daily was sentenced to death and was sentenced to death row in 1987. He has been there ever since. In late 2019, he ran to Sanctus, signed a death warrant for him. Later a stay came down to allow some of his lawyers to do further investigation. It was a temporary stay. Long story short, the pandemic comes. Daily is eventually transferred back to death row because executions are halted for several years during the pandemic. And he is now one of those men now back on death row. But this is a case in which there are so many holes. The person who by all accounts committed the crime who was also convicted of it but pointed the finger at Mr. Daily got a life sentence rather than a death sentence. Yeah, I mean, I was I was racing to the end of your book to find out what would happen to Mr. Daily who you make a very convincing case, it's not guilty of this crime. Like you said, his roommate was convicted, received a life sentence. The evidence points to him being the sole killer. And I was saddened and upset to conclude and realize that he did knock it off. He's still on death row. He's around 80 now. This is a case you've done a lot as a journalist to expose the truth and then cause some action. People have gotten out of prison based on your reporting. People have policies have changed. How does this case make you feel? I think, you know, it's so striking to me that Daily's 80 years old, as you said, he has served almost 40 years behind bars and in very, very difficult conditions. And the courts for so many reasons that the book details will not examine Skellnex' role in this case and how his testimony helped to lead to a conviction. I mean, just to give listeners a sense of things, when the roommate got a life sentence rather than death, which was embarrassing for the state attorney's office in the mid 1980s in a case as horrific as this. Just a few days later, the lead investigator in that case went to the jail, started pulling guys out of their cell and said, what do you know about Jim Daily and what he's been saying about this crime and about this crime? A number of them remember being led into a room where newspaper articles with all the details of this crime were laid out. And no one offered information, but it was clear that what was being looked for was someone like Skellnex was a snitch. And I think what is always interested in me is any case that has a jailhouse snitch in it. To me, this is a giant red flag. It doesn't mean the defendant isn't necessarily innocent, but it means some things wrong. with the case. There's something missing in the evidence or prosecutors are overreaching something's wrong and that's what made me interested in looking into this case. It's a powerful example of how this system fails but Jim Daly's a real person and you spend a lot of time talking to him and interacting with his family and talking about the he at one point has a letter exchange with someone in the Netherlands. I think he kind of strikes up a friendship with this young person in the Netherlands for years. So I want to know like how how does it make you feel? How do you process those feelings and what do you do with them? So I was really struck by the end of Skellnex life. I don't want to give too much away and where Daly is right now. So on paper, Skellnex got the better deal, right? He walked free ultimately. But when I caught up with him in a nursing home in late 2019, he was very much alone and also just to give you a sense of how far he took his lies. He was a stolen Valor guy. He never spent a day in Vietnam and he had all these tattoos, you know, talking about his military service. Whereas Daly, who had spent 12 years serving our country, never talks about that. But anyway, Skellnex at the end of his life was very lonely and so lonely that when I stood up to go after asking him six hours of questions, he grabbed my hand and he said, "Well, you come sit with me when it's time for me to die." And then conversely, Jim, who is facing the terror of being executed every day, who lives in this six by nine-foot cell and has total sensory deprivation. He has built a meaningful life for himself. He has very close family ties. His ex-wife, who's a big character in the book and he not just reconciled, they are in love with each other and want to make a life together. His daughter, his pen pals, and he spends a lot of his time painting. He gets paints from the prison commissary, and he paints things from the natural world, landscapes, animals. And as awful as the situation is, I think he's the one with the richer life in many ways. I think I heard you say on another podcast, which is essentially the criminal justice system has a kind of an asymmetry problem and that things can become more true. They kind of calcify over time, but it's very difficult for something that has been accepted as true to become less true. When someone like Scaln testifies and it's recorded and in the jury uses it in a deliberation, that is kind of built into the truth of the case of the story and chipping away at that. It's really hard even if you have great evidence. How do you think about the extent of that problem? Is there anything we could do about it? I was so struck by that that so our criminal justice system values finality. This is something that that judges talk about a lot. And the idea, again, it makes sense on paper is you go to all the time and effort of having a trial. You put on live testimony. You have jurors evaluate the truthfulness of those witnesses. When they render their verdict, that is something that is almost sacri-sant. There can be exceptions, but it's protected. And we see again and again in all sorts of instances in the courts that judges rely on precedent. They're looking backward at things. And a jury verdict, of course, is sort of the ultimate example of this. But they're very slow to recognize new evidence, new information, new advances and forensic science and things like that. And this is sort of baked into the system and how it works. So even though this roommate who we spoke about who all the evidence points to is having committed this crime, even though he has come forward several times to confess to this crime and then recant in recent years, even other revelations I described in the book, the fact that Scalnick testified that jurors believed him and then that a pellet judge after a pellet judge rubber stamped this makes it exceedingly difficult at this point in time to have something happen in the courts. I think it would really require a political act of some kind. Is there anything you can imagine that could be a criminal justice reform to to deal with that asymmetry or is it so far flung that you can't even imagine? I think, you know, I mean, this is a non-lawyer speaking, but I think it goes all the way back to law school. I would love for there to be, you know, in every curriculum, something that is about how prevalent these cases are. What do you do when you are confronted with this as a prosecutor or a judge? What are the ethics of these very difficult decisions that people have to make and learning to think critically in a way that values trying to get at the right answer rather than the answer we already landed in? I did some reporting a couple years ago in Nashville about something called a conviction integrity unit that's embedded within the district attorney's office there and what that is and there are other examples around the country. That is a group of lawyers within a prosecutor's office that's looking at cases where there are questions about that case and if they find, you know, enough evidence, they can move to have a conviction undone. And while I think that is incredible, it also helps to change the culture of the office in a really profound way. The woman who's in charge of that office, Sunny Eaton, told me the prosecutors can come. They know it's a safe space to come speak to her very off the record and just say I'm dealing with this really, you know, complicated issue in a case of mine and here's how I'm thinking about it. What are best practices? What should I be doing? Instead of just racing toward the win, whatever that takes. So I want to close the conversation by bringing us back to the death penalty and its future. You've spent many, many years reporting on the death penalty and ways that that system has broken or has failed. Can you imagine an America with the death penalty exists and is used but is fair? Can it be, can it be, say it exists and is used and is fair. I cannot knowing everything that I know because it's a human system. So to be clear, nothing is perfect, of course, right? So we know that if we get on an interstate and the speed limit is 65 or 70, they're going to be casualties at some point. Nothing can be perfect but we accept those risks. I would say that when we're dealing with something like the death penalty where it's the state putting someone to death and knowing all the ways in which it can go wrong, it's very hard for me to imagine what it looks like getting that right. Pamela Kolaugh, thank you so much for coming on the gray area. Where can people who listen to this or watch it on YouTube read your work? They can read my work at ProPublica where I'm a reporter the New York Times magazine where I'm a staff writer and they can read my book "Catch the Devil." All right, I hope you enjoyed this episode. I know I did. But as always we want to know what you think. So drop us a line at the gray area at Fox.com or leave us a message at our voicemail line at 1-800-214-5749 and once you're finished with that go ahead and rate and review and subscribe to the podcast. This episode was produced by Thor Newrider and Beth Morrissey who also runs the show engineered by Shannon Mahoney, fact checked by Melissa Hirsch and Alex Overington wrote our theme music. Our executive producer is Miranda Kennedy. The gray area comes out on Mondays and Fridays find it wherever you listen to podcasts. If you watch podcasts while you listen you can do that too. Go to youtube.com/vox for video versions of the gray area. This show is part of Vox support Vox's journalism by joining our membership program today. Go to vox.com/members to sign up and if you decide to sign up because of this show let us know. 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