Producer/Director Jed Rothstein is a true socially conscious filmmaker. Over his now 20-plus year career in documentary film, Rothstein covered the plight of death row inmates (Death Row Stories), AIDS (Hidden Crisis and Pandemic), Terrorism (the Oscar-nominated short film, Killing In The Name), and politics and law enforcement (Enemies: The President, Justice, & The FBI). With his latest work as the producer and director of two episodes of Netflix’s documentary series, The Innocence Files, Rothstein once again returns to the subject of the imprisoned–in this case the story of the wrongly accused Franky Carrillo, who spent nearly 20 years of a life sentence in prison for the murder of Donald Sarpy due to six police coerced eyewitness identifications.
The Innocence Files is both a sober and searing examination of a criminal justice system that far too often discriminates against the poor and minorities in a rush to clear cases. The systemic rot the show exposes starts with policing, but also focuses on a porous legal system where those without money have little access to equal justice under the law.
In our conversation, we discuss these issues as well as the remarkable life of Franky Carrillo, whose story is still unfolding.
Awards Daily: How did you come to the project?
Jed Rothstein: Liz Garbus, who is one of the executive producers of the whole series is an old friend and mentor and I had done a number of films with Liz years ago. First as a producer and then she and Rory Kennedy who were partners at the time gave me my first big professional directing breaks. I love them, but I had been off working elsewhere for ten years, and Liz called me up and said, I have this project that we’re putting together with Netflix, and it’s in conjunction with the Innocence Project and we’d love to have you come on board and direct some of it. I was immediately enticed by the idea of working with her and also working on something with the Innocence Project, because I’ve known about their work for many years.
I had friends over the years who were lawyers who work there and I I thought it was a great opportunity to do the best thing that you can do in nonfiction storytelling, which is tell really compelling captivating stories that also engage people in such a way that they think about important issues that are underlying the story. I think it’s really hard to find a good combination of those things. When Liz proposed the outlines of this project to me, it sounded like this would be a great place to do that.
AD: Your whole career has been built around the kinds of social justice based projects. What draws you to this subject matter?
JR: I came into filmmaking initially from studying anthropology in college. After college I was interested in stories that can help us understand one another better. Stories that can help people realize that we all face many of the same issues and problems and we can find common solutions. I think that what turned me from formal anthropology to filmmaking is that I think with filmmaking you can engage emotion is a more effective, broader way. Not to say that anthropology isn’t important unto itself, but I think filmmaking is a broader way to engage people in complicated issues through storytelling. I’ve always looked for stories that are both interesting and then talk about questions that were of import in the larger world. It took me some time in my career to understand how to combine those things. I think at first I did things that were maybe very laudable in terms of the topics, but I look back and they’re like a little overly eager. Then I think I learned that If you find the right types of stories they can be both riveting just as stories in and of themselves. And then having hooked someone emotionally into the story you get them to think about these important issues.
As I’ve gone on in my career, I’ve tried to work harder and harder to find that balance and to combine those two things. When Liz told me about it, It immediately struck me, because you have on the one hand this classic sort of investigative mystery of these stories. If you tell them in the right way: How did this happen? What went down? Who’s telling the truth? All of these elements of drama that are riveting that account for countless hours of great films and TV shows are there. Then on the other hand, they’re based around real people who really went through these things including Franky’s case, and in many of the cases in the series, who represent very broad systemic problems within our justice system. These stories can speak to these problems in in the best way by having a specific case that you can then from that understand the more general problem. In some ways this was one of the best opportunities that’s come along, because it was also connected with the broad reach of Netflix, and the extensive work and background of the the Innocence Project who have been doing this for almost thirty years and who really pioneered this work on a national level.
AD: The amount of access you had to the legal team at the Innocence Project was exceptional. Almost carte blanche, it seemed.
JD: They were partners in putting this together. They certainly had some specific legal issues on certain cases that they had to be careful about. Obviously, there are certain privacies and protections that you have to consider. But in general they were completely open to us. When I came on board formally to work on my part there were a folio of cases and they just said tell us which you think which are the interesting ones. I honed in on a few and really started talking with my producer, Nell Constantinople, we started talking to some of the people in the stories and when I got on the phone Frankie, I knew immediately this is the one.
Franky is and was such an extraordinary character. His humanity, and the way he was able to keep it intact through this ordeal was such an extraordinary demonstration of the human spirit. I thought in order to walk people through this very difficult series of injustices and painful events, you really have to have an extraordinary character who’s journey you want to follow. When I spoke with Franky, I knew immediately he was that person for me. The Innocence Project was very helpful. Both the main office and also some of their regional affiliates within the Northern California Innocence Project. They’re all pursuing the same goal and they were tremendously helpful in making contact with people involved in the story and opening doors. They were great partners throughout.
AD: I found Franky to be remarkably compelling as well. I think you could film a whole other documentary based entirely around his post-prison life. I read a quote by him about all those years he spent in incarceration where he says, “I’m not bitter. It defeats the purpose of one to be free.” That’s an extraordinary perspective for someone to take who was wrongfully imprisoned for nearly twenty years.
JD: I would say without hesitation that Franky has become a friend. He’s a wonderful guy. I have done stories before about wrongly imprisoned people. Including one on a man who was on death row for seventeen years for a crime he didn’t commit nd was finally exonerated. It’s very difficult to come out of these experiences that rob you of the prime of your life and put you into the most despairing, awful situations for decades. To come out of that with your spirit and not completely scarred by it. Franky was obviously changed by the experience changed him, but at some point in his imprisonment – and he tells this in the show, maybe three or four years into his incarceration – He woke up and he realized, I’m in here. I’m going to keep protesting my innocence even if nobody’s ever going to listen to me. But I also have to realize that this is my life now. I have to tell myself that this is where I am and I have to make the best life I can in this situation. And he did that. I think that allowed him to retain is internal dignity and probably nabled him to emerge as a very centered and calm person.
As he’s gotten out of prison, he’s done all the things he wanted to do, but he feels like he’s always been doing the things he wanted to do given the situation he was in. Now he’s able to enjoy his family, he’s able to give back to his community, he has a program that he’s started returning people from incarceration and bringing them into an auto shop and set up a garage so they can fix old cars. The idea being that these things that look like they’re junk are not junk. They just need to be fixed and repaired. In his mind it’s an analogy for how people thought of him when he came out and how people think of other people returning to society after being incarcerated for long periods of time. He does a lot of advocacy work in California and nationwide. Franky is a guy who never let himself go into the deep end of unredeemable despair, even though he had a very low moments. So, when he came out he was more grounded and he didn’t go crazy and run himself out on frivolous things.
The whole process of working with him was very much about establishing trust between us. He had to trust that me and my team were going to tell his story in a truthful way with – which we did, of course. We had to trust that he and his family were going to be open with sharing everything that went on. That process to me was especially rewarding with Frankie because he’s just an inspiring and fun human being to be around. It’s also to me the thing about making documentaries that’s one of the most enduring gifts and joys of my profession, that you get to meet people you might never meet in your normal life and and establish very intimate connections with them. Doing it with Frankie was especially rewarding because I hope that his his story and his perseverance can inspire people and can bring people through. Learning about all of the injustices that happen can be hard to take. Especially now given that you wake up every day and the news is so terrible on all fronts. it’s hard to go through these stories. But I think if you have a brightness of spirit like Franky, it changes the dynamic of how you can experience and take in the meaning of the whole story.
AD: Did you know going in that Franky’s story was going to cover two episodes?
JD: I think initially I proposed it be three, because there’s a lot there. I certainly thought it should be much more than an hour. And I also felt there was an interesting storytelling perspective to look at these two trials. If you remember, in the episodes you actually see the second trial first, and then you learn that there was the first trial. The reason for that is not just because of the sort of obvious need or desire to have cliffhangers in the story, but more because in doing so we were dealing with some really important elements of how justice – or injustice – is administered through the system. It’s both a a plot device and a sort of emotional learning device to understand that what you think is being presented as the truth – this so-called straightforward eyewitness case is actually much more complicated. They went through the whole case once and didn’t convince people, so they had to go through it again. I think having that twist in there enabled us to both add tension into the telling of the story and to really land a very important point about one of the big problems in the justice system which is eye-witness testimony.
AD: The fact that he had six eye-witnesses who all recanted was stunning to me. Doing Death Row Stories, you had experience with this kind of thing before – an innocent man being convicted – but did Franky’s story still shock you even after all you’ve seen?
JD: I found it shocking, as we must find every instance of this kind of injustice shocking, but I guess I would say it was not surprising. Franky’s story reveals so many of the flaws in our justice system. Some of the most obvious ones are systemic racism and classsim. There’s no way that a wealthy white 16-year-old from Beverly Hills on the other side of Los Angeles County who might have been wrongly accused of doing something like this would have ended up in prison for the rest of his life. He would have had a good lawyer, he would have been treated differently from the get go. Even if the false identification had been made in the first place, it would have been corrected quickly within days or weeks. He certainly would not have rotted in jail is Franky did.
It’s like the stories we’re seeing in the news now. Is it shocking that an African-American man is choked to death by the police during a non-violent arrest? Yes. It’s shocking and horrific. Is it surprising? Unfortunately it’s not surprising, because it’s a systemic problem and the stories that we know about and can tell are a small percentage of what’s going on. The particular mechanism of eyewitness misidentification is really interesting. I think those deserve attention because we’re trained by watching police shows and movies to think that there’s nothing more powerful than someone standing up in court saying, that’s the guy. He did it. I saw him.
But it’s really good to unpack everything that goes into creating that narrative and that identification and really understand that in so many cases of wrongful conviction that is the root of the problem. We’re sort of following this meta script that has been inculcated in all of us, but it doesn’t reflect the truth of what went on. If we don’t treat identification as carefully as we would treat DNA evidence or fingerprints, it’s basically useless in the same way that those types of evidence are useless if they are mishandled. Even now, 28 years after Franky’s case, the procedures for properly handling eyewitness testimony are are still lacking in many parts of the country. I hope that his story can rally us all to adopt the the right procedures and treat this information the right way to prevent these injustices from happening.
AD: Franky’s story illuminates all the ways that eyewitness testimony goes wrong. The fact that people only saw what they saw for just a flash. That it was at night. That the police were so urgent to close the case that they literally pointed the witnesses to Franky’s photo. Also, the recreation of the shooting that the judge personally attended for the second trial was just a riveting in its exposure of how it was almost impossible that any of the six witnesses could make a clear identification.
JD: In the telling of it I wanted to unpack these details. When I I looked at the basic case, I immediately felt like there’s a lot of great reveals that we can do, and that are both fantastic as plot devices and fantastic as ways to get the viewer to understand why this case is so flawed. The recreation in the film didn’t take place until the judge in Franky’s habeas trial was finally convinced to go and stand where everyone stood and try to see what happened in the same situation. That was twenty years after Franky had been in jail. That never took place during the initial trial. Which goes back again, to the justice system. Franky not having great representation, rushed procedures on the part of the police, and the strong-arming of witnesses by the police. Franky’s lawyer, Ellen Eggers, says it very well in the film, that she understands that the police were faced with this big gang problem, and they needed to clean up the streets, and there were a lot of murders going on, so there was a real imperative to do that. But it doesn’t excuse bad police work, because bad police work results in bad convictions. There’s pressures coming from all sides, but the reason we have rules about how testimony is to be taken and how people’s rights are to be respected is because they ensure that we have a justice system that’s just–that we can all have faith in. Because if we don’t have faith in it, it ceases to be a justice system and just becomes an exercise in power by people who have it against people who don’t. The issues this series raises about eyewitness testimony, about junk science used as evidence, and prosecutorial misconduct–I hope that our series can inspire us to address them.
AD: In watching your episodes, there’s a desire on the part of the police to close cases, and a matching desire by the prosecution to get high conviction rates. Those two goals often don’t work in conjunction with the search for justice. It’s not humane. It loses sight of the fact that these aren’t just cases, these are people.
JD: The sort of genius of the American system, when it works, is that we recognize that people are essentially going to doggedly pursue their self-interest. Whether that’s in the sense of capitalism or in the sense of just doing your job and having pressures to get as many convictions as you can. Which I think is is fine, and makes sense, so long as the rules of the game are clear, and fair, and are enforced. Because those rules are are what are designed to channel that self-interest into a a fair and just system. One of the most interesting interviews in the series was Mary Ann Escalante. She was one of the last people I interviewed. It took me quite a while and help from Franky to convince her to participate. She was the the district attorney who successfully prosecuted Franky’s trial and who at at the end of his saga, when it was made clear to her that the the eyewitnesses had recanted, she personally testified for Franky’s side at his habeas trial. Mary Ann Escalante is someone who’s been a prosecutor for her whole adult career. She feels those pressures about getting convictions and putting people away.
She may or may not agree with my notion, or the Innocence Project’s notion of what best practices are for eyewitness testimony, but she does understand the need for the system to be fair. In the end, she recognized that the system had gone wrong. I guess you could argue that some mechanism deep down in the system in the bottom of the 9th with 2 outs, the last gasp Hail Mary appeal that Franky was making, worked. But I think if if the rules of evidence are followed, If every interrogation of a teenage kid in Lynwood is done properly, and the cops aren’t allowed to strong-arm kids into making false IDs, then these won’t happen, or at least can be rectified very quickly. To me, the pressures are not the problem. It’s that the pressures have to be subordinate to following the rules.If we do that then the DAs can work as hard as they want to get convictions, and the cops can work as hard as they ought to, as long as they play within the rules. We all want to be safe. Nobody wants crime running around. If we can do that, we’ll all be much better for it.
AD: I was amazed to learn that after Franky discovered documents in 2003 that included a confession to the crime by someone else, which could have exonerated him, it still took eight more years for him to be freed.
JD: I don’t have the exact timeline in front of me, but from when Ellen got involved and started getting these formal recantations from the eyewitnesses, I still think it was four or five years. It’s incredible how long it takes and how slow moving the process is. That’s a part of the process I don’t quite understand–why some of that stuff takes so long. Even from the point when the DA reviewed his case, originally they weren’t going to contest it. But then they decided to contest it because they work with the sheriffs, and so that kept them in there for another couple of months. In New York, where I live, they have backlogs of thousands of cases where people get accused of a crime and they don’t go to trial for two or three years, and if they don’t have money they just sit in jail without even being convicted of something–it’s horrendous. These are complicated, complex, and enraging problems. I’m not in a position to propose solutions but I do think if the best practices of policing and prosecutorial processes were followed we’d have fewer of these downstream problems which are just egregious.
AD: How did telling Franky’s story affect you personally?
JR: Franky and I are the same age. As he was going through what he was going through at 16- 17 and into his 20s, I was going through my life in a quite different way. I guess it made me think a lot about privilege. I’m a white guy who grew up in New Mexico. If I had been falsely accused of something like this at age 16 or 17, I would have probably had a much much better outcome, because my parents would have been able to hire a good lawyer. I would I would have been much more fortunate. So, it made me think a lot about privilege, and chance, and how we should all be cognizant about that when we think about stories like Franky’s, and when we think about injustices that we see that seem far off. I think we should all be cognizant that we’re all on this journey together, but some of us have the good fortune to not have to face a lot of these same difficulties. It’s almost our obligation to make sure that these problems are addressed because we have the privilege to sit there and think about it without being faced with the oppression of it from day to day. That’s what it made me think about.
Just to mention the Sarpy family–I got to know Dameon Sarpy (Donald Sarpy’s son) somewhat well. He was very courageous to come forward and tell his story. That’s the sort of double tragedy is Franky lost twenty years of his life to incarceration and Donald Sarpy was a model citizen, pillar of the community, and a father. He was just standing on the front lawn and was gunned down, and that crime has never been solved. His family not only hasn’t had justice they thought they had, but to go through this wrenching process of realizing they didn’t –there’s a double injustice there. Again, I feel like we all have an obligation to see that these these types of wrongs don’t happen in the future as much as possible, and if they do happen are rectified asquickly as possible.