Here's what's on tap this month:
Hemp SNAFU led to de facto natural decrim experiment for marijuana in many counties.
Texas Monthly's Michael Hall tells the story of an actual innocence case out of Tyler that was broken open by a Michigan podcaster.
Scott and Michael Hall rank the greatest American prison songs. Go here for a YouTube playlist of all the songs we discussed, plus some from Scott's list that didn't make it into the podcast.
The Last Hurrah:
* DPS intel chief who warned of Mexican rapists arrested for sexual assault
* Texas House members create criminal-justice reform caucus
* Harris County bail lawsuit settled
Find a transcript of the podcast below the jump.
Transcript: August 2019 episode of the Reasonably Suspicious podcast, co-hosted by Scott Henson and Amanda Marzullo, with special guest Michael Hall, a writer for Texas Monthly.
Amanda Marzullo: Hi, this is Amanda Marzullo. The Blanco, Texas Police Department recently issued a Facebook post asking criminals to please refrain from crime until the temperatures go down. Scott, what do you think of this?
Scott Henson: I'm trying to do my part, man. My own criminal activity declined significantly in the summer time heat, probably 80% or so I'd say. For one thing, it's harder to drive a getaway car with potholders on your hands-
Amanda Marzullo: Yeah, I mean, it's rough.
Scott Henson: It's rough. But people say we don't have seasons in Texas, but we really do, and those seasons are tolerable, hot, really hot, and oh my God you've got to be fucking kidding me.
Amanda Marzullo: Except they're not.
Scott Henson: Which is where we are right now, yes, that's this moment.
Amanda Marzullo: Yes, it is bad.
Scott Henson: Hello boys and girls. Welcome to the August 2019 episode of Just Liberty's Reasonably Suspicious podcast, covering Texas criminal justice, politics, and policy. As always, I'm here today with our good friend Amanda Marzullo, who's executive director of the Texas Defenders Service. How are you doing today Mandy?
Amanda Marzullo: I'm wonderful. How are you?
Scott Henson: Really well, and we've got a fine show today featuring Texas Monthly's Michael Hall discussing Texas' latest high profile exoneration, this time spearheaded by an investigative podcast. Mike is also a well-known professional guitarist in Austin and stuck around to record a segment ranking the best American prison songs. Mandy, what are you looking forward to talking about in the podcast today?
Amanda Marzullo: Well, I'm not looking forward to talking this time around. I'm looking forward to listening to your conversation with Michael Hall about the best American prison songs.
Scott Henson: Me too. I've really been enjoying all the prep for that, so I can't wait for that part. First up, in our top story, more Texas district attorneys have announced they won't prosecute marijuana cases after the legislature changed the law to legalize hemp with low THC levels. Now prosecutors must prove someone could actually get high on a substance before they can be prosecuted for possessing it. But Texas crime labs still don't have a way to test marijuana for its THC content, a fact a legislative committee was told before the law passed. And equipment to do so costs hundreds of thousands of dollars. So prosecutors are caught in the lurch. That's why in Tarrant, Dallas, Bexar, Williamson, Fort Bend, and Nueces counties, district attorneys have decided to dismiss pot cases for the time being. Texas DPS will now issue tickets instead of arresting people. But Harris County will continue to send people caught with marijuana through a pre-trial diversion program. In some counties, like Lubbock and El Paso who've announced they will continue business as usual. The media hasn't covered what most of Texas' 254 counties are doing, so there's still a lot of unknown here.
Scott Henson: Mandy, now that we've seen counties taking all these various approaches, what's your opinion about this mess, and what does it say to you about both the drug war and Texas legislative process?
Amanda Marzullo: I think the first thing that comes to mind with all of this is how important the legislative fact finding process is and not in this case, because it was in the Agriculture Committee, which-
Scott Henson: That's right, agriculture.
Amanda Marzullo: The Agriculture Committee, you had a lot of criminal justice stakeholders not showing up to the hearings on this.
Scott Henson: But I certainly wasn't aware of this issue until it was already something that had happened.
Amanda Marzullo: Yeah, no, and definitely, and so I think if the DAs from each of these jurisdictions had shown up at the hearing and said, "This will be a problem. We won't be able to prosecute it," I think that it would have probably caused more caution on the part of the lawmakers pushing this bill through.
Scott Henson: That's certainly true, although I did go back and watch the portion of that hearing where Brady Mills from the Department of Public Safety told them this was going to happen. I mean, maybe it was a little technical, but he did tell them. I mean, it really seemed to me once I heard what he said, "Gosh, this is surprising somebody didn't pick up on it." But you're right, and being in the Agricultural Committee, the stakeholders all being off somewhere else, that is what explains it. It emphasized to me how important those committee hearings are, that somebody really needs to be paying attention to what's said at those, because that's where the problems with your legislation crop up.
Amanda Marzullo: Yeah, or ... and also issue expertise.
Scott Henson: That's right.
Amanda Marzullo: That in a lot of ways this bill I think went through the wrong committee.
Scott Henson: That's-
Amanda Marzullo: It went through the most politically expedient committee, but it didn't go through the committee where they know the stakeholders. You and I know Brady.
Scott Henson: That's right.
Amanda Marzullo: We know that he doesn't come forward and raise issues unless they're real.
Scott Henson: He's not a demagogue. He's not saying it just to say it. If he says he's going to have a problem, it's going to be a problem.
Amanda Marzullo: Yeah.
Scott Henson: Now that's exactly right. And for me, it emphasized how important that fact finding process is. We're at a point in time when in the Senate, for example, the Senate Criminal Justice Committee has almost no fact finding in its committee hearings any longer. Chairman Whitmire just actively dissuades people from testifying and doesn't want them to give testimony. And so things go through really with no expert analysis given to them at all. And here's an example where the expert analysis was given and they just weren't listening or no one had the understanding of what they were hearing to latch onto it.
Amanda Marzullo: And I really think it's the latter right? Because part of the other problem that you deal with with the legislative process is that there are always going to be people who show up telling lawmakers that if they pass a particular bill that the sky will fall.
Scott Henson: Right, right.
Amanda Marzullo: And so if it was ... In this instance, it was just one person, even though he's someone who's very credible. Him alone in the wrong committee-
Scott Henson: Maybe that's not enough, right?
Amanda Marzullo: Yeah.
Scott Henson: Well the other thing that I took away from this, and maybe this is because we mentioned all the heat in the intro, and I was on vacation recently in Canada to get away from said heat. And I have to admit, I had not realized until we got up to Canada that they legalized marijuana last year nationally. And lo and behold, it's just a legal thing now. And I went a couple of times into the dispensaries there in Montreal and Quebec City. And it really was remarkable. It was an incredibly bustling business frankly. People from every walk of life, it was grandma next to the biker next to the Haitian day worker next to the business person. You name it, all there in line to get their smoke.
Scott Henson: We were there for this circus festival in Montreal. Well there was less marijuana being smoked at that circus festival than any auditorium [inaudible 00:07:19] concert here in Austin. Not even close. It's not the case that it just let some floodgates through and all of a sudden, everyone's smoking out at the elementary school or something. I mean, maybe it's the Canadians can make anything boring, but boy, did they make that boring. They legalized pot, and it's just something that everyone goes and gets and smokes and it's not a big deal. And it makes you wonder, what are we doing? We're going to buy 30 of these half a million dollar machines so we can test whether the pot's at .3% and ... Does anyone really care that much? Honestly, the polling says no. And in Canada when they just went ahead and legalized it, it's fine. It's just fine.
Scott Henson: The Fort Worth Star Telegram had an interesting article, an editorial, where they said that this should be treated as a natural experiment, that the DA should just stop prosecuting and we should just see whether, if/when you stop, when you decriminalize, does the sky fall? And it's not going to. Canada shows us that. Colorado shows us that, all these other states. It's just okay. This is all much ado about nothing.
Amanda Marzullo: I agree with that.
Amanda Marzullo: Next up, Scott interviews Texas Monthly's Michael Hall about an amazing innocence case out of Smith County in East Texas. Ed Ates was falsely convicted of murder a quarter of a century ago, and it took a true crime podcaster crowdsourcing an investigation to get him out and prove his innocence. Let's hear Mike tell the story.
Scott Henson: Alright Mike, thank you for sitting down to talk to me about your latest and greatest Texas innocence story. This is a story about Ed Ates from out of Smith County, is that right?
Michael Hall: Yep, Tyler, Texas.
Scott Henson: Well, and I have to say, I really had to wonder as I read this, having you partnered with Pam Colloff for so many years at Texas Monthly and ... Is it really an innocence case if it has fewer than 22,000 words in the story that tells it? I feel like you've short-shrifted us here, that-
Michael Hall: I think this was only 9,000 right, or 10,000-
Scott Henson: Exactly, so-
Michael Hall: So yeah, it's-
Scott Henson: I feel like there's another 10 or 15 left before you've really had the story completely done. But hey, that ...
Michael Hall: There's always a lot more than you think on the cutting room floor, but in an innocence case, that's especially true.
Scott Henson: No, I'm sure it is. I'm teasing. It's an excellent story and everyone should check it out. So tell us about Ed Ates. It's another false conviction. I had a journalist tell me recently that she had trouble pitching false conviction stories because the public already knows how it ends. But this even has some twists and turns that are unusual for these innocence cases. So what made you gravitate to this story?
Michael Hall: This story, it really is a great story about a guy wrongfully convicted, Ed Ates, who is ... I think he's 51 now.
Scott Henson: Wow.
Michael Hall: And he spent 20 years in prison for a murder that he absolutely did not do. What made this story so interesting is that Ed would still be in prison today if it hadn't been for a podcaster up in rural Michigan finding out about his case. And that to me was just mind-blowing, that it was almost an accident. Well, it is an accident that Ed Ates is free today.
Scott Henson: Right. The name of the podcast again?
Michael Hall: The name of the podcast is Truth and Justice. And it's guy named Bob Ruff, and Bob was, a few years ago was a fireman in a little rural community in Southwestern Michigan. And he got completely obsessed with Serial, like a lot of people did. Started his own podcast as a book club for Serial, got a lot of listeners, more than 100,000 listeners, and then at a certain point decided, "I want to do this full time." Quit his job as a fireman and started looking for an actual case to do, and put out feelers, asked people to send him cases. And a young woman said her uncle was down in Texas for something he didn't ... a armed robbery that he did not commit. So Bob Ruff started looking into the case, and at a certain point he kind of peeled off from it. The guy's name was Kenny Snow, and he started to think, "Well ..." I mean, Kenny had actually pled guilty to something.
Michael Hall: But Kenny had told him, "I lied on a guy named Ed Ates, and that helped send him to prison for life, for a murder." He said, "I don't know if he committed it or not, but I lied on him." So Bob looks into that, and it turns out that Kenny Snow was a jailhouse snitch who was brought in to testify against Ed Ates, and Ed had already gone through one trial which had ended in a mistrial. The prosecutors brought him in for a second trial, and that did the trick. Sent him away for 99 years.
Scott Henson: Wow, wow. And was there any corroborating evidence at all to the snitch testimony?
Michael Hall: Oh, it was just ridiculous. The corroborating evidence was so-called human feces on the bottom of a shoe, which was never proven to be human feces. And it was just the splotch on the bottom of a shoe that the deputies said was feces and the prosecution said in trial was feces, even though they never had any evidence that it really was human feces. And the defense attorneys didn't object enough, so the jury basically thought that there was human feces on the bottom of Ed's shoe, which would've matched the human feces on the kitchen floor of the deceased's trailer. Even though no-
Scott Henson: So no matching human feces that may or may not actually even be human feces.
Michael Hall: They never did a test. They never did the forensic testing to prove this was human feces either on the floor of this dead woman's trailer, or on the bottom of his shoe. But the combination of the feces and the snitch sent this guy, who was Ed, who was 30 years old, had just married, had one kid, one baby and another on the way, to prison for 99 years.
Scott Henson: That's insane.
Michael Hall: And it never, and ... So at a certain point, I mean, this is in the late '90s this happened. At a certain point a few years ago, Bob gets this case and he starts looking into it, and he starts coming down to Tyler. And not only does he come down, but he starts asking his listeners to help him out. And so his listeners are all over the country, but he has a lot of listeners up in Northeast Texas. And they started doing things like, he has to find out the ... who has the phone number, a Kilgore phone number, and he can't find it online, so he gets somebody in Kilgore to go out to the library in Kilgore, the city library, and look up this phone number. He gets these people, these amateur serologists who start ... He has a Facebook page, a fan page, and all these people go on there and they start giving their serology ideas on blood and feces, on how to find out whether this was really feces on the bottom of Ed's shoe.
Michael Hall: He starts getting all these people to basically chime in and help him do this investigation while he's also coming down to Smith County. And he brings a scanner down and scans every single page of the court documents. He does all this work on his own because he's convinced that Ed Ates is innocent.
Scott Henson: Wow, that Smith County DA mafia must've loved that.
Michael Hall: He was ... Bob was not a popular guy in Smith County.
Scott Henson: Wow, wow. Thank God for Bob Ruff. That's amazing.
Michael Hall: I mean, and so he eventually ... And he's going on the air every week on his podcast. And by now, he's got 150,000 listeners, and they're printing up t-shirts, "Ed Ates is innocent. Free Ed Ates."
Scott Henson: Wow, wow.
Michael Hall: And he eventually interests The Innocence Project of Texas, who one of the reasons they get so interested is Bob and his listeners-
Scott Henson: Have done all the work.
Michael Hall: Have done all the work.
Scott Henson: Yeah.
Michael Hall: So they, Alice and Clayton and The Innocence Project, start working on this. They bring in a parole attorney, and the parole attorney goes before the parole board. And in amazing, lightning fashion, they get Ed paroled.
Scott Henson: I worked at The Innocence Project of Texas as their policy director for seven or eight years, and one of the things that a lot of people don't realize about that work is that the volume of investigation that's required to actually prove to the standard the Court of Criminal Appeals requires innocence is staggering. And The Innocence Project of Texas is a small non-profit and they don't have the resources to do that sort of work honestly on more than a tiny, tiny handful of cases if that. And the ones that really rise to the fore, and I say this just because there are people out there who are desperate and have cases and want to know what do you do. You kind of got to do the bulk of it yourself. Someone has to just take ownership and say, "Okay, I'm not a lawyer, I'm not a private investigator. But no one's going to do it unless I do it," and just start.
Scott Henson: And eventually, if you find evidence of innocence, then you'll start to find allies. But somebody has to just start. And just asking an attorney, "Oh, can you look into this?" really is kind of wasting everyone's time. So doing it through a media project where you're crowdsourcing is kind of an amazing thing. At the same time, I have seen family members do exactly the same thing and show up with a massive file on their loved one's case. And let me tell you, it goes to the top of the pile when that happens. So this is unusual being a media outlet, but I think it's actually kind of typical about how a lot of these innocence cases happen. Some family member, a wife, a parent, somebody just keeps digging, just won't let go.
Michael Hall: And as a journalist, I mean, I'm the same way. If a family member or a family or some kind of crew also believes in this guy's or this woman's innocence and has done a bunch of work, it makes me a lot more interested in the case. Because it's not just one person. I mean, as journalists, we get letters every day from inmates-
Scott Henson: Oh yeah.
Michael Hall: And I'm sure some of them have great valid claims. But some of them don't. But how do you tell? Well, one of the ways you tell is when you get a bunch of people saying, "Oh yeah, this is a great case."
Scott Henson: Right. So I guess the other thing about this case, and I will caveat this by saying up front Smith County's my home county. I grew up in Tyler. What in the hell is wrong with Smith County? Oh my God. Why do we just keep doing this over and over and over? You start. Just talk about what a crap hole this ... the Smith County justice system is, and why we just have these innocence cases cropping up from the '70s, the '80s, the '90s, and it's the same crew of people over and over who are involved in these cases.
Michael Hall: Well, I think-
Scott Henson: Oh my God.
Michael Hall: I think that ... I think ... I think that's a good place to start. It's the same crew. You go to a lot of counties, and there was a change. Remember in Dallas County when all of a sudden, the DA was elected and it was a black guy-
Scott Henson: Craig Watkins.
Michael Hall: Craig Watkins. And all of a sudden, Dallas County changed completely.
Scott Henson: That's right.
Michael Hall: You-
Scott Henson: He wasn't perfect, but being different severed the ties to the old school.
Michael Hall: Look, in San Antonio, in Houston. I mean, in Austin. In big cities, there are changes. In Smith County, it's been basically the same crew that has been running Smith County for 30, 40 years. The same judges keep getting elected. It's been basically the same crew of district ... people in the district attorney's office. And so you don't get a whole lot of change. And I mean, when Craig Watkins came in, he had this idea ... Yeah, I mean, and with that idea, we already knew there were some exoneration. But he went out and he found a bunch more. Smith County has only had one DNA exoneration in all this time, A.B. Butler. And they don't have that same kind of ... Since they're not bringing in new people all the time who have new ideas and who have an understanding that the system makes mistakes, they don't bring that in. So basically, in Smith County, I think they still believe that the system works really, really well. And so you don't have this kind of sense that, well, maybe we made some really bad mistakes here and we should do something about it.
Michael Hall: And I think ... I mean, it's a law and order community going way back. But I mean, a lot of places are law and order community. Dallas was a law and order community-
Scott Henson: That's right.
Michael Hall: Going way back. But there was change in Dallas County. There hasn't been any change in Smith County. There's no sense up there that there might be something wrong and that we should look at this and maybe do something about it. There is a sense, and these are all ... I mean, from everything I've heard about Jack Skeen, he is a great person. He is a decent Christian man, he's a good father, he's a good friend. I mean, I've talked to people up there who are defense attorneys who can't stand the stuff he's done, but they're all like, "I love Jack Skeen. He's a good man." It's something about the system that they have built that is so impervious to reflection, to any kind of second guessing, that leads to these things that have been happening for years now. And just, again, purely by chance has this one been fixed. Purely by chance is Ed Ates home with his family.
Scott Henson: Right. I mean, that to me, I guess to put a pin on it, the most extraordinary thing about this case is that all of the things that caused Ed Ates to be falsely convicted are common as dirt, and all of the things that caused him to be liberated are the most extravagantly unusual, if you wrote it in a novel people wouldn't believe it type-
Michael Hall: No, it's ridiculous. A podcaster from a small town in Southwestern Michigan? Are you kidding me?
Scott Henson: That's right, who goes pro and then gets some guy in Texas out of ... It's unbelievable. So literally, like if you saw it in a movie, you'd say, "Yeah, not believable. I'm not going to buy it." So anyway, well thank you-
Michael Hall: It wasn't ... And real quick, it wasn't just Bob. It was also Ed's wife had a ... Kim had a lot to do with getting him out. It wasn't just Bob Ruff. But his-
Scott Henson: She stuck with him two decades.
Michael Hall: Stuck with him for two decades. He was the father of her two children. She brought them to prison. She, even when Ed tried to push her away saying, "Get on with your life," she believed in his innocence so much that she stayed with him. And when Ed finally came home, it was one of the most joyous reunions I or the crowd of 50 people outside the Walls Unit had ever seen.
Scott Henson: That is an amazing love story. That's astonishing. Alright, well thank you very much for sitting down and talking with me Mike. I appreciate it a lot.
Michael Hall: Thank you Scott.
Amanda Marzullo: Now Scott continues his conversation with Texas Monthly's Michael Hall, this time taking on the task of ranking the greatest American prison songs. Michael is a longtime musician in Austin, most notably playing guitar for the Wild Seeds and has written on musical topics for Texas Monthly for many years. Here's what he and Scott had to say about how the greatest American prison songs stack up.
Scott Henson: Alright, I'm here with Mike Hall, executive editor at Texas Monthly, and we're here to talk about the greatest ever prison songs. Mike, thank you for joining me.
Michael Hall: Glad to be here Scott. I love talking about prison songs.
Scott Henson: Excellent. Mike, just to establish, your bona fides is the longtime guitarist for the Wild Seeds here in Austin in addition to being one of the best reporters on criminal justice topics in the state, and so I think is uniquely qualified. And I, by contrast, am probably not.
Michael Hall: I think being the observer that you are and the music fan you are, you have plenty of bona fides.
Scott Henson: Well let's find out. We're here to talk about the greatest, let's say greatest American prison songs. Because it did occur to me as soon as I started thinking of this, there's probably a lot of narcocorridos that are bad ass that we just are not qualified to latch onto-
Michael Hall: Absolutely.
Scott Henson: And some of their prison songs are simply amazing. But American prison songs, I think most people think that country and western music is just full of them. I was a little bit surprised when I began doing a little bit of research, that isn't entirely true. It's sort of a specialty of a few.
Michael Hall: Sure.
Scott Henson: Tell me, what do you think are sort of the ... before we start talking about the songs, what are the qualifications ... What should the qualifications be for the greatest American prison songs?
Michael Hall: That's a tough one, because one of the things that I love about some of these songs is a certain level of authenticity, that the people who were singing it were actually in prison. Some of these songs, you can at least imagine that you can hear the pain and heartache in their voices, which is great. But on the other hand, there are some great prison songs by people who did not do time in prison but still evoke what the listener might think of is the feeling of being in prison. So to me, it's a ... And there's plenty of points in between.
Scott Henson: Right. Right, and there's that great scene in that Johnny Cash biopic where his father says, "Well, everyone's going to think you've been to prison if you keep singing these songs."
Michael Hall: Exactly. But Johnny Cash went out of his way to sing to prisoners and had this kind of-
Scott Henson: That's right.
Michael Hall: This connection with them, but he-
Scott Henson: He earned it in other ways.
Michael Hall: He'd been in jail. I don't think he'd ever been in prison-
Scott Henson: That's right.
Michael Hall: But, so he's kind of in that kind of area in between. Merle Haggard, didn't he-
Scott Henson: Merle Haggard was in prison.
Michael Hall: He was actually in prison.
Scott Henson: Merle Haggard saw Johnny Cash perform in prison, and there's a great story he tells where, or told, where he finally got to meet Johnny Cash as a performer, and he said, "By the way, I heard you when you played at ..." whatever the prison was. And Johnny said, "Well Merle, I don't think you were there. That was so-and-so who opened for me." He said, "No, I was in the audience."
Michael Hall: Wow.
Scott Henson: That was-
Michael Hall: Yeah.
Scott Henson: So-
Michael Hall: So Merle has a couple of prison songs that, I don't know, when you know that about him, that just makes it, makes them that more meaningful I guess.
Scott Henson: Right. Well I put together a long list. I was way too lazy to cut it all down like you did. But I put in a top 30, and I think Merle had three of them-
Michael Hall: Yeah.
Scott Henson: So ...
Michael Hall: Yeah.
Scott Henson: So I think you're right. Authenticity, but at the same time, some of these were just so popular and made such an impact, just-
Michael Hall: Well, I think people really respond to the whole idea of being in prison, and there's something about ... I mean, look at The Shawshank Redemption, that movie, which is kind of a typical Hollywood movie but every time it's on, I'll watch it. There's something about that ... There's something about prisoners and prison that everybody can identify with and relate to, whether it's a wrongful conviction or just somebody who made a mistake. And a good prison song tugs at those emotional heartstrings.
Scott Henson: Tell me about your greatest hits list. Who should be on our top five?
Michael Hall: Alright, let me start with number one, because this to me is just one of my favorites. It's a Texas song, and it's got plenty of authenticity. And it's Ain't No More Cane on the Brazos, which was a song that was first recorded back in I believe 1933 by John Lomax of some prisoners in a Texas prison. And it's just an amazing song that they used to sing when they were out doing the work in the fields in this prison just off the Brazos River. And I don't know if he recorded it at the prison or after they had gotten out, but this is a song by prisoners about what they would do during the day while they're cutting down sugar cane.
Scott Henson: Well Lomax actually was recording in prisons. I actually didn't know until you mentioned this, that he'd recorded in Texas prisons. His most famous ones were in Louisiana, and another person who I think is on both of our lists, Lead Belly-
Michael Hall: Oh absolutely.
Scott Henson: Well his famous recording of Midnight Special with Lomax was actually done in Angola Prison, but-
Michael Hall: So his first one was done actually in prison?
Scott Henson: In-
Michael Hall: The first time he did that song?
Scott Henson: Well here's the story if you haven't heard it about Lead Belly in, and Midnight Special, because it's amazing. Lead Belly says that he wrote this song when he was in prison in Texas nearly 20 years earlier-
Michael Hall: At Sugar Land.
Scott Henson: That's right, at Sugar Land. And Governor Pat Neff was coming to the central unit in Sugar Land, and Lead Belly played his version of Midnight Special for him, including that wonderful last verse, "If you're ever in Houston, you better walk right," naming the sheriff and-
Michael Hall: Better not gamble, better not fight.
Scott Henson: That's right, that's right, naming the sheriff and calling him out. And Neff ended up pardoning Lead Belly over this. Well Lead Belly ended up committing another murder and going to prison in Louisiana, and that's where Lomax found him and recorded him in the 1930s. And then when Lead Belly got out, he went on to record 50 other blues songs, and some of those are some of the only examples we have of some particular 19th century work songs, came from Lead Belly in particular, but Lomax many, many more of them. That was a really ... And then we were also talking earlier about Pete Seeger doing the same thing in the '50s and going in ... I know he went into Texas prisons, and there are some amazing Texas prison work songs that didn't make my list, but probably should. They're unbelievable. These guys, he's recording them chopping down trees with axes, and you can hear the thump of the tree in between the chants. Just unbelievable. But I'm getting off track here. So we've got Midnight Special-
Michael Hall: No, I ... Well, Midnight Special's definitely on my list. I love I Shall Be Released, the Bob Dylan song. I just think-
Scott Henson: Just don't want to hear him sing it?
Michael Hall: I like his version of it, but the version that I love the most is Nina Simone's. She actually changes the chord structure a little bit, and it's makes it even more kind of, there's even more longing in the song, and then the way of course she sings it.
Scott Henson: Right, it's amazing-
Michael Hall: It's just phenomenal.
Scott Henson: I was just, it's, yeah.
Michael Hall: I mean, I love hearing Dylan sing, but Nina Simone kind of takes it to a different level.
Scott Henson: Right, right. Well, and Dylan's voice, he almost, the way he sings is almost designed to strip away, "Okay, just listen to what I'm saying. Don't focus on the musicality." It's there, but focus on the message here. And she's so musical, and the musicality just oozes from everything she does. But all of the meaning really is deepened in her version, so I think you're dead on about the right version of that song.
Michael Hall: A kind of obvious one, but that doesn't make it any less perfect is Folsom Prison Blues by Johnny Cash, which I just, I love it. I love the whole structure of the song, the guitar riff. It's got one of Johnny Cash's favorite couplets, "I shot a man in Reno just to watch him die." And the fact that he played it at that ... It got big at that live recording-
Scott Henson: That's right.
Michael Hall: Is just, I just love that.
Scott Henson: Well, and my podcast partner told me that if we didn't put that on the final list that our list was worthless, so I suppose that's required, although I can make the argument and I said this to you earlier, I can make the argument that that was the second best prison song on that album. Because if you had an audience meter in that prison yard where he played, or whatever the auditorium was, the cafeteria, wherever it was he was set up, and judged how well the audience reacted, the one that they reacted the biggest to by far was Cocaine Blues. "It was early one morning, I was making the rounds, took a shot of cocaine and shot my woman down." And it goes all the way to his death sentence, and of course he's in Folsom Prison while he waits to die also in that one. There's a Folsom reference playing in front of them. But obviously in terms of broader popular love of the song and sort of in the pantheon of truly great prison songs, I think you're right. Folsom Prison Blues eclipses it-
Michael Hall: My band-
Scott Henson: But it is funny to listen to it on that album. The prisoners probably wouldn't have picked it. They probably would've picked the other one [inaudible 00:33:49].
Michael Hall: We used to, my band the Wild Seeds, used to play that song whenever we had to do three set nights. We would always pull up covers, and that was always one of them, because it was so much fun to play.
Scott Henson: Outstanding.
Michael Hall: ...
Scott Henson: Yes, yes, Yes, I can hear him start it up just as you do that. Oh my God.
Michael Hall: And then my fifth one is kind of a guilty pleasure, and it's ... We were talking about authenticity. This is probably not the most authentic prison song, but Jailhouse Rock by Elvis is such a great song. I mean, and it's a great song for all kinds of reasons. I mean, the whole way that song is structured with the intro, which was just so cool ... and then just the guitar solo, the guitar sound, the way Elvis sings it. It's just this perfect little pop song that was written by two guys who probably never even went into a jail cell in their lives-
Scott Henson: Right, and they were writing-
Michael Hall: But Stoller-
Scott Henson: For a musical.
Michael Hall: They were writing it for Elvis's ... his ...
Scott Henson: His movie.
Michael Hall: Movie.
Scott Henson: Right.
Michael Hall: And then it comes out in that movie with all that choreography, and it's just, even though it's so Hollywood phony, it's so cool. I love that song.
Scott Henson: The choreography was amazing in that scene. I'll tell you, I wouldn't even think it should be considered for the top five if it weren't for that movie scene. The choreography in that scene was so amazing. And then the other thing that happens in that song and in that scene is of course, it's this great dance scene and this great dance number, and about halfway through the song you realize, "Wait, it's all men"-
Michael Hall: It's all men.
Scott Henson: And there's one line in the song that actually makes that explicit, and-
Michael Hall: "You're the cutest jailbird I ever did see."
Scott Henson: That's right.
Michael Hall: Alright, alright.
Scott Henson: And so as far as super popular American songs, that's a pretty early reference there. So I definitely think the movie and the choreography in that scene made it one that definitely deserves consideration.
Michael Hall: The truth is, you can't just do prison songs that are downers. Prison is a terrible downer.
Scott Henson: That's right.
Michael Hall: I've never been in prison, but I can't imagine a worse downer. And yet, you've got to have some songs that are uppers.
Scott Henson: That's right, that's right. Well, I've said on my list of 30, because I was way too lazy to narrow it down to five until I started looking at it, but one of them I had on there was Merle Haggard's I Made the Prison Band. So there's things that happen that are not all downers. But I don't think that actually would make it into the five. It's a ... He, like I say, he has two others at least that would probably be ahead.
Michael Hall: Well yeah, Sing Me Back Home is a real downer, I mean-
Scott Henson: It's a real downer.
Michael Hall: In a lot of these songs, the guy is about to die.
Scott Henson: That's right. Well Mama Tried is probably the greatest of those three, and it's I guess a downer too. It's certainly got a jamming beat to it, but ... "I turned 21 in prison doing life without parole," that, oh, yikes.
Michael Hall: Yeah, that's a downer.
Scott Henson: That's a downer. So I'll grant you we need to find some upbeat ones, although that's a hard one, man. That's a tough, a tough call. Now you and I both are more likely to look at sort of the folk and blues. There are absolutely some hip hop tunes that are freaking bad ass and probably deserve serious consideration. I think the one that for me is the most impactful was Public Enemy's Black Steel in the Hour of Chaos. It opens with this absolutely amazing scene of this guy sitting in prison and getting his draft notice. And he says, "I learned something today when I got this notice from the government. They're a bunch of suckers." That's not a ... That's a paraphrase, but that's essentially the sentiment, and he goes, and the whole thing is a meditation with him sitting staring at this draft notice.
Michael Hall: That's great.
Scott Henson: And thinking about the role of the black man in America, and wow, it's just a heavy hitting, very impactful piece. Similarly, although incredibly dark again, but Ludacris's "Do Your Time. Don't let your time do you."
Michael Hall: Man.
Scott Henson: But-
Michael Hall: Great line.
Scott Henson: Great line, and became sort of really part of the popular culture, that line. One of them that, again, probably didn't get up to the top five, but Ice T's The Tower is quite a song from now, Jesus, 40 years ago, where he's walking into the prison yard for the first time and trying to figure out who has the power in the prison yard. Is it the white gang, is it the black gang, or is it the guards in the tower? But let's see, a few others that I had on here that probably are worth considering as we rank. Hurricane by Bob Dylan, you had mentioned you've wondered actually if Hurricane was actually innocent. To me, that was the greatest song ever written about an innocence case, and now you've totally dashed my-
Michael Hall: Well, see, I remember hearing that on the radio when I was a teenager, and for one thing, it was a long song. And so the fact that it was a long song, that it was a hit. But also, it was a prisoner song, and it's a great song-
Scott Henson: It really is.
Michael Hall: I mean, the melody of it, the way Dylan and his co-writer on that one put together this story, this long story with a great chorus, with the fiddle breaks on it. It's so cool. It's got all these memorable lines. But yes, a few years ago I actually went down this rabbit hole of, on the internet, from some people who said this was Dylan's worst song because in fact Hurricane Carter was guilty, guilty, guilty. I have no idea if he was or not, but I just remember thinking, "Okay, this is not one of those open shut cases."
Scott Henson: Right, right. Well, and I have not gone down that rabbit hole. It will greatly disappoint me if that turns out to be the case, but hey, that was a long, long time ago now and it's still a great song. Let's see, a few others I had on my list. One that you hadn't heard before but was The Warden by The Old Crow Medicine Show. Again-
Michael Hall: That's a cool-
Scott Henson: It's a cool song. It doesn't have the sort of great historical impact that we're looking for I think in the great American prison song. But boy, is that a good song. One you and I both remembered from the '70s was Tie a Yellow Ribbon Round the Old Oak Tree. It's funny to think about that song now, that this song about a prisoner coming home ... "I'm coming home, I've done my time, and I've got to know what is and isn't mine." And-
Michael Hall: And it's a song that the songwriter wrote based on a true story, which kind of gives it a little bit of oomph.
Scott Henson: Gives it an authenticity push, it does.
Michael Hall: It's a corny song, but it-
Scott Henson: But the Tony Orlando and Dawn singing it gives it an authenticity decrease, but-
Michael Hall: It all evens out.
Scott Henson: That's right. Let's see, I would say Jimmie Rodgers In the Jailhouse Now in the country music world sure would be right up there.
Michael Hall: Sure.
Scott Henson: Also one that won't make the top five but that was a fine song by an ex-prisoner who was kind of a bad ass is David Allan Coe's Prisoner's Song. And he was quite a piece of work himself. Yeah, I think those are the ones I had that probably really justify the list. Oh, I ... Let's see, I Fought the Law was the other one that I thought, "Man, that's borderline, but wow, what a great song."
Michael Hall: It's another great pop song. Sonny Curtis wrote it, just ... I read where he described writing it. It was one of those songs that just popped out. And those are the best songs. He wrote it in five minutes just staring out at the West Texas landscape one day. He's breaking rocks in the hot sun and it came to him. "I fought the law, and the law won." I don't think Sonny Curtis ever did a day of time, but boy that song's great, and in particular as it's been covered by so many people over the years.
Scott Henson: Right, well it was recorded by The Crickets which gives it a great Texas connection. And then the version by The Clash to me took it from a really good song to a completely iconic song.
Michael Hall: Yeah, that made The Clash. I mean, that was their first huge hit.
Scott Henson: Is that right?
Michael Hall: Yeah.
Scott Henson: Well man, it absolutely just turned that into something that you ... was almost a national sentiment in many ways. So alright. Well with that presentation of our possibilities there, what are we think are in the top five? It seems like we've automatically got Midnight Special, Folsom Prison Blues are in both our top lists.
Michael Hall: Absolutely.
Scott Henson: What else do we think among these we've talked about? Your-
Michael Hall: For me, I would definitely put Ain't No More Cane on there, just because it is one of the earliest and ... I mean, you can't listen to that original version without feeling it. I mean, it's just an amazing song.
Scott Henson: It is an amazing-
Michael Hall: And it's very Texas.
Scott Henson: Well, if anyone detects a Texan bias on this podcast, you're tuning in for the first time clearly. Let's see-
Michael Hall: I mean, I had I Shall Be Released, which is ... I really like that song, but what pushes it over the edge is Nina Simone's version of it.
Scott Henson: I can see that. I think of the ones that I had been raising, I would actually, I really do think that Black Steel in the Hour of Chaos probably deserves to be on there, if only so we can have a little diversity-
Michael Hall: Absolutely.
Scott Henson: In the music genre. And let's see, if I were rounding out a top five, man, and your last one was Jailhouse Rock. Wow, that's both tough to argue and tough to agree with.
Michael Hall: Well, you might want to put a pop song on there and ... just kind of the opposite on the authenticity meter, but a song that would really draw people in. And if it wasn't that, maybe it is Chain Gang by Sam Cooke or-
Scott Henson: That's right-
Michael Hall: I don't know. I mean, and maybe it's I Fought the Law, which was originally written as a pop song.
Scott Henson: Exactly, exactly. Or actually, there's another, Back on the Chain Gang by The Pretenders went to a big thing on the-
Michael Hall: That's true.
Scott Henson: On the pop charts. I don't think it would get into the greatest prison song list, but it's funny that a few do.
Michael Hall: I think you could, I mean, on any of those, if you wanted to do ... sometimes you have to figure out not just diversity ... I mean, there are all kinds of diversity issues, and that's a pop diversity issue. So I think any one of those songs-
Scott Henson: Yeah, and-
Michael Hall: Is a great song.
Scott Henson: And of those, Elvis is just too iconic to ignore. I think you're probably right, the Jailhouse Rock has to be the final. And now with that pronouncement, I think the world can rest easy knowing that this ranking has been established, and-
Michael Hall: Top five.
Scott Henson: That the top five have been established. And actually, I will go through and make a YouTube playlist of all of the songs that we named here on the podcast today for anyone who's interested, and we'll publish that when we publish the podcast. So Mike, thanks a lot for talking with me.
Michael Hall: Thanks Scott. This has been great.
Scott Henson: It has.
Scott Henson: Now it's time for our rapid fire segment we call The Last Hurrah. Mandy, are you ready?
Amanda Marzullo: I'm ready to go. First up, earlier this year, the Chief of Intelligence at the Texas Department of Public Safety briefed President Donald Trump about alleged rapists among Mexican migrants at the border. Now this same man has been arrested and charged for allegedly raping a woman in Austin. Scott, what are the implications here?
Scott Henson: Well, if it's true, obviously it's this unbelievable irony, and just almost an absurd level of irony, if these allegations are accurate. But beyond that, this man was in charge of all of the state's fusion centers that gathered intelligence on every Texan, that gathered video from thousands and thousands of surveillance cameras, that had access to intimate location information details. The idea that if this type of person was in charge of all those resources that wasn't being abused is really, would be pretty naïve. So this is a scandal because of the profound hypocrisy on the one hand, but the rabbit hole may go a lot deeper than that.
Amanda Marzullo: Oh, let's hope not.
Scott Henson: After an abysmal 86th Texas legislative session in which scarce little reform legislation passed on criminal justice beyond abolition of the driver responsibility surcharge, 10 legislators have created a bipartisan criminal justice reform caucus to try to do better next time. Mandy, is this significant?
Amanda Marzullo: Yes. What we saw this past session, especially in the House where this caucus is really focused, was a lot of misinformation about criminal justice reforms and people not understanding the implications of what they were voting for. So if you create a caucus that establishes themselves as being the sort of the go-to people on these issues within both parties, I think that would go a long way to passing bills on the floor.
Amanda Marzullo: Finally, Harris County has settled the lawsuit over its misdemeanor bail practices establishing rules that mean 85% of misdemeanor defendants will go free without being required to post bond. Scott, is this the end of the story or just the next phase?
Scott Henson: Well, it's the end of a very long chapter for sure for Harris County. Although this only affects misdemeanor cases, there's still an outstanding case in Harris County on felony cases, felony bail. And other counties, in Dallas and Galveston and elsewhere are also being sued. Eventually where this is all going to end up is in the federal courts, and one of these cases is eventually going to be the source of a decision from either the Fifth Circuit or the Supreme Court, and that'll establish rules for the entire state. So for Harris County, it's the end of an incredibly expensive chapter. Millions of dollars were spent on this lawsuit. For the rest of the state, there's still a long way to go.
Scott Henson: Alright, we're out of time but we'll try and do better the next time. Until then, I'm Scott Henson with Just Liberty.
Amanda Marzullo: And I'm Amanda Marzullo with the Texas Defender Service. Goodbye, and thanks for listening.
Scott Henson: You can subscribe to the Reasonably Suspicious podcast on iTunes, Google Play, or SoundCloud, or listen to it on my blog, Grits for Breakfast. We'll be back next month with more and hopefully better news, and until then, keep fighting for criminal justice reform. It's the only way it's going to happen.