羅納德·沙利文：在爭議與邪惡面前堅守正義理想

[00:00:00] The following is a conversation with Ronald Sullivan, a professor at Harvard Law School known for taking on difficult and controversial cases. He was on the head legal defense team for the Patriots football player Aaron Hernandez in his double murder case. He represented one of the Jena six defendants and never lost the case during his years in Washington, DC s Public Defender Services Office in 2019. Ronald joined the legal defense team of Harvey Weinstein, a film producer facing multiple charges of rape and other sexual assault. [00:00:36] This decision met with criticism from Harvard University students, including an online petition by students seeking his removal as faculty. Dean a winter pass, then a letter supporting him, signed by 52 Harvard Law School professors, appeared in the Boston Globe on March 8th, 2019. Following this, the Harvard administration succumbed to the pressure of a few Harvard students and announced that they will not be renewing run on Sullivan's Dean position. This created a major backlash in the public discourse over the necessary role of universities in upholding the principles of law and freedom at the very foundation of the United States. [00:01:19] This conversation has brought to you by Brooklyn and Sheets Wind Access Online Wine Store Monk, PIAC, low carb snacks and blankest app that summarizes books click their links to support this podcast. As a side note, let me say that the free exchange of difficult ideas is the only mechanism through which we can make progress. Truth is not a safe space. Truth is humbling and being humbled can hurt. But this is the role of education not just in the university, but in business and in life. [00:01:52] Freedom and compassion can coexist, but it requires work and patience. It requires listening to the voices and to the experiences. Unlike our own listening, not silencing. I'll do a few minutes of ads now and no ads in the middle. I tried to have fun with these, even though my voice is genetically incapable of sounding like I'm having fun. [00:02:17] I do give you time stamps, so go ahead and skip, if you do not happen to have the patience of a saint, but I do try to make it so there are at least like somewhat interesting to listen to. But either way, please do click the links in the description for the sponsors. It really is the best way to support this podcast. This episode is sponsored by a Brooklyn Sheets. I am not an expert on comfort, I've often throughout my life slept on the carpet without anything but a jacket and jeans. [00:02:44] But these sheets have been amazing in general for many years. I've mostly lived a minimalist life in the things I eat, in the content I consume, in the possessions that actually have material possessions, in the things that have hung up on my wall, which is usually nothing except maybe a picture of Feynman and Einstein. And when you have a minimalist life like that, you could really appreciate quality. I think there's two kinds of products. Of course it's the van diagram, but the first category is the ones you get to show to the world and the other is the ones you get to make yourself feel happy, like internally intrinsic versus extrinsic. [00:03:28] I guess, again, it's probably significant overlap, but I do appreciate quality. I do appreciate products that make me feel good. The sheets are that so it's nice. I will never be dependent on these things. [00:03:42] If I do feel myself becoming dependent, I will let go of them and we go to Brooklyn and Dotcom and use Culex to get 25 bucks off when you spend one hundred dollars or more, plus get free shipping as Brooklyn and Dotcom and enter Code Leks. This podcast is also sponsored by Wine Access Online Store with expertly selected wine. They make it easy for anyone I me from novice to expert to pick and order the most delicious wines from around the world. [00:04:14] Their team tastes over twenty thousand bottles a year and handpicks only the best for their customers. There's something profoundly joyful about me imagining the tasting of 20000 bottles. I personally had a lot of joyful experiences drinking wine because at least for me, wine has been a thing that brings close friends and family together over a great meal. So I kind of think there's several categories of alcohol. Wine is like a sharing love with friends. [00:04:46] And then there's like the other side of the spectrum, which is tequila, where every single experience I've had or tequila was involved. I've regret it. So if you choose wine, you're choosing love. If you're choosing tequila, you're choosing danger, but sometimes a little dangerous. Fonso. But most of the time, you want to stick with wine, you to stick with wine access, let me recommend. This is where I try to sound smart and sophisticated. [00:05:14] The twenty eighteen radio silence cabernet sauvignon, Napa Valley is definitely a good one and it's affordable given the high, high quality. So get 20 percent off your first order. When you go to wine access dotcom slash the discount will be applied. Check that's wine access dotcom slash Lex to see my wine pics and to get discount. And I hope you and I, dear listener, will share wine together one day. This episode is also brought to you by Monk Pack Kitto Granola Bars that contains just one gram of sugar, two grams of net carbs and there are only one hundred and forty calories. [00:05:55] It's actually interesting to think about what kind of fuel is needed when you're on the low carb diet, when you all of a sudden step up the performance needs. [00:06:05] So like if I usually run, you know, five or six miles here and there, do you push ups and pull ups and so on, if I all of a sudden have to run like an ultra marathon, which I hope I don't have to, but I very well might need to once I meet David, there's quite a few people that say you could do the ultra on continuing low carb, like ultra low carb. [00:06:28] But there's also a lot of people that say, well, no, in these cases, even if you eat low carb, you need to load up on carbs, all that stuff. [00:06:37] There's so many debates are so confusing. I don't know what to make of it. I think I go back to the same thing I will go back to, which is you have to experiment on yourself and you have to listen to your body. Like, don't listen to a random guy on the Internet. Listen to your body over that, OK? [00:06:56] Get 20 percent off your first purchase of any MOPAC product by visiting Monk, Dotcom and Scolex at checkout if you don't like it for any reason. [00:07:06] I would personally first question your tastes, but Myung-Bak will not they'll exchange the product or refund your money guaranteed. That's Monk PACOM and enter Code Leks. [00:07:19] This episode is also supported by Blunkett's my favorite app for Learning New Things. [00:07:24] Blanca's takes the key ideas from thousands of nonfiction books and condense them down into just 15 minutes they can read or listen to. They've also started doing this weirdly amazing thing called Broadcast's, which summarizes podcasts like a selection of podcasts, and they summarize them. [00:07:42] The ones they choose are like the really well organized podcast. But it's kind of fun to think about them trying to summarize like this podcast that I'm doing, or even like The Crazier, a long form podcast like Joe Rogan experience kind of Barkus. [00:07:56] Good luck trying to summarize that. Chimps, DMT and aliens. There you go. That's a summary I work for Blankest. I really actually enjoy this idea of hardcore summarization. Like some people listen to podcasts like 2x or even more faster, like there's a lot of value to that or even just like with blinkers summarizing books that are like huge into just like a few pages. [00:08:20] I really think that's exceptionally valuable. But it also has to be coupled with actually reading long form content or listening to long form content as well. [00:08:30] And I actually think there's space to listening to stuff at like one X and pausing and giving your mind a chance to think. I really think there's power and silence. You know, you can call it boredom or whatever, but it's that meditative silence that you want to escape. There's an anxious desire to escape that silence. But if you resist that anxious desire, I think brilliant ideas come. So that's the value of long form content. But then the short form content is really valuable because you get condensed information. [00:09:03] So you're maximizing information with long form content. You're maximizing on the silence and the chance to think. Anyway, go to blink is dotcom slash legs to start your free seven day trial and get 25 percent off a blink as premium membership, that's Blink is dotcom social x. This is the last Friedemann podcast. And here is my conversation with Ronald Sullivan. You were one of the lawyers who represented the Hollywood producer Harvey Weinstein, in advance of a sexual assault trial for this, Harvard forced you to step down as faculty deans. [00:10:01] Are you and your wife of Winthrop House? Can you tell the story of this saga from first deciding to represent Harvey Weinstein to the interesting, complicated events that followed? Yeah, sure. [00:10:14] So I got a call one morning from a colleague at the Harvard Law School who asked if I would consent to taking a call from from Harvey. [00:10:27] He wanted to meet me in and chat with me about representing him. I said yes. And one thing led to another. [00:10:35] I drove out to Connecticut where he was staying and met with him and some of his advisors, and then a day or two later decided to take the case. This would have been back in January of twenty nineteen, I believe. So the sort of cases that I have a very small practice most of my time is teaching and writing, but I tend to take cases that most deem to be impossible. I take the challenging sorts of cases and and this was fit the bill that was quite challenging in the sense that everyone had prejudged the case. [00:11:21] When I say everyone, I mean the the general sentiment in the public had the case prejudged, even though the specific allegations did not regard the any of the people in the in The New Yorker. [00:11:37] That's The New Yorker article that sort of exposed everything that was going on allegedly with with Harvey. So I decided to take the case and I did. [00:11:51] Is there a philosophy behind you taking on these very difficult cases, like is it a set of principles or is it just your love of the law or is it is there's like a set of principles why you take on the cases? Yeah, I do. [00:12:05] I take on I'd like to take on hard cases and I'd take on the cases that are with unpopular defendants, unpopular clients. And with respect to the latter, that's where Harvey Weinstein fell. [00:12:22] Yes, it's because we need lawyers and good lawyers to take the unpopular cases because that those sorts of cases determine what sort of criminal justice system we have if we don't protect the rights and the liberties of those whom the society deems to be the least in the last, the unpopular client. And that's the the camel's nose under the tent. If we let the camel's nose under the tent, the entire tent is going to collapse. That is to say, if we short-circuit the rights of a client like Harvey Weinstein, then the next thing you know, someone will be at your door knocking it down and violating your rights. [00:13:06] There's a there's a certain creep there with respect to the way in which the state will respect the civil rights and civil liberties of people. And these are the sorts of cases that they're tested. So, you know, for example, there's a there was a young man many, many years ago, name or Nesto Miranda. By all accounts, he was not a likable guy. He was, you know, a three time knife thief and not a likable guy. [00:13:36] But lawyer stepped up and took his case. And because of that, we now have the Miranda warnings. You have the right to remain silent. Those those warnings that officers are are forced to give to people. [00:13:50] So it is through these cases that we express oftentimes the best values in our criminal justice system. So I proudly take on these sorts of cases in order to vindicate not only the individual rights of the person whom I'm representing, but the rights of citizens writ large, who most of whom do not experience the criminal justice system. [00:14:14] And it's partly because of lawyers who take on these sorts of cases and establish rules that protect us average, everyday, ordinary, concrete citizens. [00:14:27] As from a psychological perspective, just you as a human, was there is there a fear? Is there stress from all the pressure? Because if you're facing I mean, the whole point, a difficult case, especially in the latter that you mentioned of the going against popular opinion, you have the eyes of millions potentially looking at you with anger. As you try to defend, you know, this these set of laws that this country is built on. [00:14:55] No, it doesn't stress me out, particularly it you know, it sort of comes with the territory. I try not to get too excited in either direction. So a big part of my practice is wrongful convictions. And I have gotten over 6000 people out of prison who've been wrongfully incarcerated in a subset of those people have been convicted. And, you know, if people have been in jail 20, 30 years who have gotten out and those are the sorts of cases where people praise you and that sort of thing. [00:15:31] And so, look, I, I, I do the work that I do. I'm proud of the work that I do. [00:15:38] And in that sense, I'm sort of a part time Daoist expression reversal was the movement of the Dow. So I don't get too high, I don't get too low. I just try to do my work and represent people to the best of my ability. [00:15:53] So one of the hardest cases of recent history would be the Harvey Weinstein in terms of popular opinion or unpopular opinion. So. [00:16:01] Well, if you continue on that line, what was that? Where does that story take you of taking on this case? [00:16:08] Yeah, so I took on the case and then there was some a few students at the college. [00:16:15] So let me back up. I had an administrative post at Harvard College, which is a separate entity from the Harvard Law School. Harvard College is the undergraduate portion of Harvard University. And the loss was obviously the law school. And I initially was appointed as master of one of the houses. We did a name change five or six years into it, and we're called faculty deans. But the houses at Harvard are based on the college system of Oxford and Cambridge. [00:16:44] So when students go to Harvard after their first year, they're assigned to a particular house or college and that's where they live and eat and so forth. And these are undergraduates. These are undergraduate students. So I was responsible for one of the houses that its faculty, Dean. So it's an administrative appointment at the college. And some students who didn't clearly didn't like Harvey Weinstein began to protest about the representation. [00:17:16] And from there, it just mushroomed into one of the most craven, cowardly acts by any university in modern history. It's just a complete and utter repudiation of academic freedom. And it is a decision that Harvard certainly will live to regret it. Frankly, it's an embarrassment. We expect students to do what students do. And and I encourage students to have their voices heard and to protest. I mean, that's what students do. What is vexing are the adults, the dean of the Faculty of Arts and Sciences, Claudine Gay, absolutely craven and cowardly, the dean of the college, same thing. [00:18:08] Rakesh Khurana, craven and cowardly. [00:18:11] They capitulated to the loudest voice in the room and ran around afraid of 19 year olds. [00:18:19] All 19 year olds are upset. I need to I need to do something. Yeah. [00:18:24] And it appeared to me that they so, so desire the approval of students that they were afraid to make the tough decision and the right decision. It really could have been an important teaching moment at a teaching moment. [00:18:40] Yeah, very important teaching moment. [00:18:42] So they they forced you to step down from that faculty position at the house? [00:18:47] It I would push back on the description a little bit. So, so, so, so I. So I don't write the you know, the references to the op ed I did in New York time. Harvard made a mistake by making me step down or something like that. So I don't write those things. I did not step down and refused to step down. Harvard declined to renew my, my, my, my contract. And, you know, and I made it clear that I was not going to resign as a matter of principle and forced them to do the the cowardly act that they, in fact, did. [00:19:25] And, you know, the the worst thing about this, they did. The college dean, Gay and Dean Caronna commissioned this survey. They've never done this before. Survey from the students. You know, how do you feel at Winthrop House? Yeah. And the funny thing about the survey is they never released the results. Why did they never released the results? They never released the results because I would bet my salary that the results came back positive for me and it didn't fit their narrative because most of the students were fine. [00:20:00] Yes, most of the students were fine. It was the loudest voice in the room. [00:20:04] So they never released it. And, you know, I challenge them to this day. Release it. Yes, release it. But no, but, you know, they wanted to create this narrative. And when the data didn't support the narrative, then they just got got silent. Oh, we're not going to release it. The students demanded it. I demanded it. And they wouldn't release it because I am I just I just know in my heart of hearts that it was it came back in my favor that most students at Winthrop House said they were fine. [00:20:43] There was a group of students that weaponized the term unsafe. They said we felt unsafe and they banded this term about. But again, I'm confident that that the majority of students at Winthrop House said they felt completely fine and felt safe and so forth. And the supermajority, I am confident, either said I feel great at Winthrop or, you know, I don't care one way or the other. And then there was some minority who had had a different view. [00:21:15] But, you know, lessons learned. It was a wonderful opportunity I went through to permit some amazing students over the my ten years as master and faculty dean. And I'm still in touch with a number of students, some of whom are now my students at the at the law school. So in the end, I thought it was it ended up being a great experience. The national media was just wonderful in this. Just wonderful people wrote such wonderful articles in accounts and wagged their finger appropriately at Harvard. [00:21:59] Compare me to John Adams, which I don't think is a bad comparison, but it's always great to read something like that. But at any rate, that was the Harvard the Harvard versus Harvey situation. [00:22:12] So that seems like a seminal mistake by Harvard. And Harvard is one of the great universities in the world. And so sort of its successes and its mistakes are really important for the world as a beacon of like how we make progress. So what lessons for the bigger academia that that's under fire a lot these days of what bigger lessons do take away? Like how do we make Harvard great? How do we make other universities, Yale, MIT, great in the face of such mistakes? [00:22:47] Well, I think that we have moved into a model where we the we have the consumerization of education, that is to say. We have feckless administrators who make policy based on what the students say now. This comment is not intended to suggest that students have no voice in governance, but it is to suggest that the faculty are there for a reason. [00:23:23] They are among the greatest minds on the planet Earth in their particular fields, at schools like Harvard and Yale, Stanford, the schools that you mentioned, it might quite literally the greatest minds on Earth. They're there for a reason. [00:23:38] Are things like curriculum and so forth are rightly in the province of faculty. And while you take input and critique and so forth, ultimately the grown ups in the room have to be sufficiently responsible to take to to take charge and to direct the course of a student's education. And, you know, my situation is one example where it really could have been an excellent teaching moment about the value of the Sixth Amendment, about what it means to treat what it means to treat people who are in the crosshairs of the criminal justice system. [00:24:21] But rather than having that conversation, it's just as consumerization model. Well, there's a lot of noise out here. So we're going to react in this sort of way. Higher education as well, unfortunately, has been commodified and other sorts of ways that has reduced or impeded hampered the school's commitment to free and robust and open dialog. So to the degree that academic freedom doesn't sit squarely at the center of the academic mission, any school is going to be in trouble. [00:25:02] And I really hope that now that we weather this current political moment where. 19 year olds without degrees are running universities and get back to a system where faculty, where adults make decisions in the best interests of the university, in the best interest of the student, even to the degree, though, some of those decisions may be unpopular. And that is going to require a certain courage and. Hopefully in time, and I'm confident that in time, administrators are going to begin to push back on these current trends. [00:26:00] Harvard has been around for a long time, has been around for a long time for a reason. And one of the reasons is that it understands itself not to be static. [00:26:08] So I have every. View that Harvard is going to adapt and get itself back on course and be around another 400 years, says Michael. [00:26:28] So, I mean, what this kind of boils down to is just having difficult conversation, difficult debates. When you mentioned sort of 19 year olds and it's funny, I seen this even at MIT. It's not that they shouldn't have a voice, should they? They do seem to. I guess you have to experience it and just observe it. They have a strangely disproportionate power, which is very interesting to to basically I mean, you say, yes, there's great faculty and so on. [00:26:58] But, you know, it's not even just that the faculty is smart or wise or whatever it is that they're just silenced. [00:27:08] So the terminology that you mentioned is weaponized is sort of safe spaces or that certain conversations make people feel unsafe. What do you think about this kind of idea? You know, is there some things that are unsafe to talk about in the university setting? Is there a lines to be drawn somewhere? And just like you said on the flip side with the slippery slope, is it too easy for the lines to be drawn everywhere? [00:27:41] Yeah, that's a great question. So this idea of unsafe space, at least the vocabulary, derives from some research, academic research about feeling psychologically unsafe. [00:27:56] And so the notion here is that there is there are forms of psychological disquiet that impedes people from experiencing the educational environment to the greatest degree possible. And that's the argument. I am assuming for a moment that people do have these feelings of of of disquiet at elite universities like MIT and like Harvard. [00:28:32] That's probably the safest space people are going to be in for their lives, because when they get out into the quote unquote, real world, they won't have the the sorts of nets that these schools provide, safety nets that these schools provide. [00:28:49] So to the extent that research is descriptive of a psychological feeling, I think that the duty of the universities are to challenge people. [00:28:59] It seems to me that it's a shame to go to a place like Harvard or a place like him at Yale or any of these great institutions and come out the same person that you were when you went in. That seems to be a horrible waste of four years and money and resources. Rather, we ought to challenge students that they grow, challenge some of their most deeply held assumptions. They they may continue to hold them. [00:29:29] But the point of an education is to rigorously interrogate these fundamental assumptions that have guided you thus far and to do it fairly and civilly. So the extent that there are lines that should be drawn, there's a long tradition in the University of Civil Discourse. So you should draw a line somewhere between civil discourse and uncivil discourse. The purpose of a university is to talk difficult conversations, tough issues, talk directly and frankly, but do it civilly and, you know, so to, you know, yell and cuss at somebody and that sort of thing. [00:30:13] Well, you know, do that on your own space, but observe the norms of civil discourse at the university. So, look, I think that the presumption ought to be that the most difficult topics are appropriate to talk about at a university, but that ought to be the presumption. Now, you know, should you might, for example, give its imprimatur to someone who is espousing the flat earth theory. You know, the earth is flat, right? [00:30:53] So there if if certain ideas are or so contrary to the scientific and cultural thinking of the of the moment, yeah. There's space there to draw a line and say, yeah, we're not going to give you this platform to tell our students that the earth is is is flat. But, you know, it's a topic that's controversial. [00:31:24] But contested theory, that's what universities are for. [00:31:29] If you don't like the idea, present better ideas and articulate. [00:31:33] And I think there needs to be a mechanism outside of the space of ideas of humbling, like I've done martial arts for a long time. I got my ass kicked a lot. I think that's really important. I mean, the in the space of ideas, I mean, even just in engineering, just all the math classes. [00:31:52] My memories of math, which I love, is it's kind of pain is basically coming face to face with the with the idea that I'm not special, that I'm much dumber than I thought I was, and that anything accomplishing anything in this world requires really hard work. [00:32:15] That's really humbling. That makes that that puts you because I remember when I was 18 and 19 and I thought I was going to be the smartest, the best fighter, the Nobel Prize winning, you know, all those kinds of things. And then you come face to face with reality and it hurts. And it feels like there needs to be efficient mechanisms from the best universities in the world to without abusing you. It's a very difficult line to walk without, like mentally or physically abusing you be able to humble you. [00:32:50] And that's what I felt was missing in these very difficult, very important conversations. Is the 19 year olds, when they spoke up, the mechanism for humbling them with ideas was missing. I kind of got broken down because, as you say, there does. Like I sensed fear everything was permeated with fear and fear is paralyzing, fear is destructive, especially in a place that's supposed to be all about freedom of ideas. Right. [00:33:25] And I mean, I don't know if you have anything in your thoughts to say. [00:33:30] And this whole idea of council culture where people, a lot of people, users become political, they may maybe outside of the world of politics. Is this a gift? Do you have thoughts about it? [00:33:46] Does it bother you that people are sort of put in this bin and labeled as something and then thereby you can ignore everything they say? Steven Pinker, there's a lot of Harvard folks that are fighting against, I guess, the set of ideas. But, Jeff, do you have thoughts? [00:34:02] I think that we as a culture are way, way, way too quick to cancel people. And it it's become almost reflexive now. You know, someone says something or makes in an offhand comment even a mistake. There's there's a move to simply cancel folks. [00:34:28] So I think that this, quote unquote, council culture has really gotten out of control at this point. It's forcing people to be robotic in many ways. [00:34:44] Yeah, a robot, as I say, not now. [00:34:46] I know I'm venturing into your intellectual domain for future robot watchers, but there are many and it's discouraging a lot of good people from getting into public life in any sort of way because, you know, who needs the who needs the stress of it or some sense. [00:35:05] You're an inspiration that you're able to withstand the the pressure, the pressure of the masses. But it is as I said, it's a sad aspect of human nature that we kind of get into these crowds and we get we started chanting and it's fun for some reason. And then you forget yourself and then you sort of wake up the next day not not having anticipated the consequences of all the chanting. Yeah. And we will get ourselves in trouble in that. [00:35:33] I mean, there's some responsibility on the now on social networks and the mechanisms by which they make it more frictionless to do the chanting, to do the can't seem to do the outrage and all that kind of stuff. So I actually on the technology side, have a hope that that's fixable. But yeah, it does seem to be you know, it almost like the Internet showed to us that we have a lot of broken ways about which we communicate with each other and we try to figure that out. [00:36:04] Same with the university. The this mistake by Harvard showed that we need to reinvent what the university is. And I mean, all of this is it's almost like we're finding our baby deer legs and trying to strengthen the institutions that have been very successful for for for a long time. You know, the really interesting thing for Harvey Weinstein, you choosing these exceptionally difficult cases. Is also thinking about. What it means to defend evil people, what it means to defend these will say unpopular and you may push back against the word evil but bad people in society. [00:36:51] First of all, do you think there's such a thing as evil or do you think all people are good and it's just circumstances that create evil? And also, is there somebody to evil for the law to defend? [00:37:03] And so that's so the first question. That's a deep philosophical question. Whether the category of evil does any work for me? It does for me. I do think that I do subscribe to that category, that there is evil in the world as conventionally understood. So so there are many who will say, yeah, that just doesn't doesn't do any work for me. But the category evil, in fact does intellectual work for me and I understand it is something that that exists. [00:37:43] Is it genetic or is it the circumstance like what kind of work does it do for you intellectually? [00:37:48] I think that it's entirely contingent. That is to say that the conditions in which one grows up and so forth begins to create this category that we may think of as evil. Now, there are studies and whatnot that show that certain brain abnormalities and so forth are or more prevalent in, say, serial killer. So there may be a biological predisposition to certain forms of conduct, but I don't I don't have the biological evidence to make a statement that someone is born evil in. [00:38:36] And, you know, I'm not a determinist thinker in that way. So you come out the womb evil and you're destined to be that way to the extent there may be biological determinants that still require some nurture as well. So but you still put a responsibility for the on the individual. [00:39:01] Of course. Yeah. We all make choices. And so some responsibility on the individual. Indeed. We live in a culture, unfortunately, where a lot of people have a constellation of bad choices in front of them, and that makes me very sad. [00:39:23] Yeah, the people grow up with with predominantly bad choices in front of them. And that's unfair. And that's that that's on all of us. But, yes, I do think we make we make choices. Wow. [00:39:36] That's so powerful. The constellation of bad choices a. That's such a powerful way to think about sort of equality, which is the set of trajectories before you that you could take if you just roll the dice, because, you know, life is a kind of optimization problem. So to take us into math over a set of trajectories under imperfect information, uh, so you're going to do a lot of stupid shit to put it in technical terms. [00:40:15] But the than the fraction of the trajectories that take you into into bad places, went to good places is really important. And that's ultimately what we're talking about. An evil might be just a little bit of a predisposition biologically, but the rest is just trajectories that you can take. I mean, studying Hitler a lot recently I've been reading probably way too much. [00:40:38] And it's it's interesting to think about all the possible trajectories that could have avoided the this particular individual developing the heat that he did the following that he did the the actual final, uh, there's a few turns in him psychologically where he went from being a leader that just wants to conquer and to somebody who allowed his anger and emotion to take over to where he started making mistakes for in terms of militarily speaking, but also started doing, you know, evil things. [00:41:20] And all the possible trajectories that could have avoided that are fascinating, including he wasn't that bad at painting and drawing. [00:41:29] Right. That's that's true. That from the very beginning and, uh, and his time in Vienna, there's all of these possible things to think about. And, of course, there's millions of others like him that never came to power and all those kinds of things. [00:41:42] So but that goes to the second question on the on the side of evil, do you think and Hitler is often brought up as like an example of somebody who is like the epitome of evil? [00:41:55] Do you think you would if you got that same phone call after World War Two and Hitler survived? During war, you know, the trial for war crimes, would you take the case defending Adolf Hitler if you don't want to answer that one? Is there a line to draw for evil, for who not to defend? [00:42:21] No, I think I think everyone do the second one first. Everyone has a right to a defense if you're charged criminally in the United States of America. So, no, I do not think that there's someone so evil that they do not deserve a defense process. Matters process helps us get to results more accurately than we would otherwise. So it is important and it's vitally important and indeed more important for someone deemed to be evil, to receive the same quantum of process and the same substance of process that anyone else would. [00:43:00] It's vitally important to the health of our criminal justice system for that to happen. So, yes, everybody, Hitler included, were he charged in the United States for a crime that occurred in the United States? Yes. Whether I would do it if I were a public defender and assigned the case. [00:43:24] Yes, I started my career as a public defender. I represent anyone who was assigned to me. I think that is our our duty in private. Practice, I have choices, and I likely based on the hypo you gave me, and I would tweak it a bit because it would have to be a U.S. state. And so but but I get the broader point and don't want to be bogged down in technicalities. I'd likely pass right right now as I see it, unless it was a case where. [00:44:02] No, nobody else would. What would represent him? You know, then I would think that I have some sort of duty and obligation to to to do it. But yes, everyone absolutely deserves a right to competent counsel. [00:44:21] That is a beautiful ideal is difficult to think about in the face of public pressure. It's just I mean, it's kind of terrifying to watch the masses during this past year of 20/20 to watch the power of the masses, to make a decision before any of the data is out. If the data is ever out, any of the details, any of the processes and I and there is an anger to the justice system, there's a lot of people that feel like even though the ideal you describe is a beautiful one, it does not always operate justly. [00:45:05] It does not operate to the best of its ideals. It operates unfairly. [00:45:09] Can we go to the big picture of the criminal justice system? What do you. Given the ideal works about our criminal justice system and what is broken. Well, there's a lot broken right right now, and I usually focus on on that, but in truth, a lot works about our criminal justice system. So there's a there's an old joke. And it it's funny, but it it carries a lot of truth to it. And the joke is that in the United States, we have the worst criminal justice system in the world except for every place else. [00:45:54] Yeah. [00:45:55] And and yes, we certainly have a number of problems and a lot of problems based on race and class and economic station. [00:46:06] But we have a process that privileges the liberty and that's a good feature of the criminal justice system. So here's how it works. The idea of the relationship between the individual and the state is such that in the United States we privilege liberty over and above very many values. [00:46:29] So much so that a statement by increased Mather, not terribly far from where we're sitting right now, has gained traction over all these years. And it's that better 10 guilty go free than one innocent person convicted. That is an expression of the way in which we understand liberty to operate in our collective consciousness. We would rather a bunch of guilty people go free than to then to impact the liberty interests of any individual person. So that's a guiding principle in our criminal justice system, liberty. [00:47:11] So we set a process that makes it difficult to convict people. We have rules of procedure that are cumbersome and that slow down the process and that exclude otherwise reliable evidence. And this is all because we place a value on liberty. And I think these are good things in it. And it says a lot about our criminal justice system. [00:47:39] Some of the bad features have to do with the way in which this country sees color as a proxy for criminality and treats people of color in radically different ways. In the criminal justice system, from arrest to charging decisions to sentencing, people of color are disproportionately impacted on all sorts of registers. One example, and it's a popular one, that although there appears to be no distinguishable difference between drug use by whites and blacks in the country, blacks, though only 12 percent of the population represent 40 percent of the drug charges in the country. [00:48:34] There's there's some just equities along race and class and the criminal justice system that we really have to have to have to fix. And they've grown to more than than bugs in the system and have become features, unfortunately, of our system all too, to make it more efficient, to make judgments. [00:48:54] So the racism makes it more efficient. [00:48:56] It inefficiently moves people from society to the streets. And that's and a lot of innocent people get caught up in that. Well, let me ask in terms of the innocence, so you've gotten a lot of people who are innocent. Are you? I guess revealed their innocence, demonstrated their innocence. What's that process like, what's it like emotionally, psychologically? [00:49:30] What's it like legally to fight the system in through the process of revealing sort of the innocence of a human being emotionally and psychologically? [00:49:42] It can be taxing. I follow a model of what's called empathic representation, and that is I get to know my clients and their family. I get to know their strivings, their aspirations, their fears, their sorrows. [00:49:59] So that certainly sometimes can do psychic injury on one. If you you know, you get really invested in really sad or happy, it it does become emotionally taxing. But the idea of someone sitting in jail for 20 years completely innocent of a crime. [00:50:23] Can you imagine sitting there every day for 20 years knowing that you factually did not do the thing that you were convicted of by a jury of your peers? It it's got to be the most incredible thing in the world. [00:50:38] What the but the people who do it and the people who make it and come out on the other side as productive citizens or folks who say they've come to an inner peace in their own minds and they say these bars aren't going to define me, that my my humanity is is there and it's immutable and they are not bitter, which is the I would tend to think that I'm not that good of a person. I would be bitter for every day of 20 years if I were in jail for something. [00:51:13] But, you know, but but people tell me that, you know, that they can't survive like that. One cannot survive like that. And you have to come to terms with it. And and the people whom I've exonerated, I mean, they come out, most of them come out and they just really just take on life with a vim and vigor without bitterness. And it's a beautiful thing to see. [00:51:39] Do you think it's possible to eradicate racism from the judicial system? [00:51:45] I do. I think as I think that race insinuates itself in all aspects of our lives and the judicial system is not immune from that. So to the extent we begin to eradicate. Dangerous and deleterious race, thinking from society generally, then it will be eradicated from the criminal justice system. I think we've got a lot of work to do and I think it'll be a while. But but I think it's doable. I mean, you know, the country. [00:52:21] So historians will look back three hundred years from now and take note of the incredible journey of diasporic Africans in the in the US, an incredible journey from, you know, slavery to the the heights of politics and business and judiciary to the academy and so forth, and not a lot of time and actually not a lot of time. [00:52:52] And if we can have that sort of movement historically, let's think about what the next hundred and seventy five years will look like. I'm not saying it's going to be short, but I'm saying that if we keep at it, keep getting to know each other a little better, keep enforcing laws that prohibit the sort of race based discrimination that people have experienced and provide as a society, opportunities for people to thrive in this world, then I think we can we can see a better world and we see a better world. [00:53:30] We'll see a better judicial system. [00:53:32] So I think it's kind of fascinating if you look throughout history and race is just part of that as we create the other. [00:53:41] And treat the other with disdain for the legal system, but just the human nature, I tend to believe you mentioned offline that I work with robots. It sounds absurd to say, especially to you, especially because we're talking about racism that is so prevalent today. [00:53:58] I do believe that there will be. Almost like a civil rights movement for robots. Because with I think there's a huge value to society of having artificial intelligence systems that are that interact with humans and are and are human like. And the more they become human like you, they will start. [00:54:28] They will start to ask very fundamental human questions about freedom, about suffering, about justice and their will. We'll have to come face to face like look in the mirror in asking the question just because we're biologically based, just because we're sort of. Well, just because we're human, does that mean we're the only ones that deserve the rights? Again, giving forming another other group, which is robots. And I'm sure there could be along that path. Different versions of other that we form, so racism race is certainly a big other that we've made, as you said, a lot of progress on throughout the history of this country. [00:55:16] But it does feel like we always create as we make progress, create new other groups. And, of course, the other the other group that perhaps is outside the legal system that people talk about is the essential. Now, I eat a lot of meat, but the torture of animals, you know, the people talk about when we look back from, you know, a couple of centuries from now, look back at the kind of things we're doing to animals. [00:55:41] We might regret that. We might see that in a very different light. And it's kind of interesting to see the future trajectory of what we wake up to about the injustice in our in our ways. But the robot one is the one I'm especially focused on because but at this moment in time, it seems ridiculous. But I'm sure most civil rights movements throughout history seem ridiculous at first. [00:56:05] Well, it's sort of outside of my intellectual bailiwick. Robots, as I understand the development of artificial intelligence, though, the the aspect that. Still is missing is this notion of consciousness and that it's its consciousness that is the the thing that will will move if it were to exist. And I'm not saying that it can or will, but if it were to exist, would move robots from machines to something different, that something that experience the world in a way analogous to what how we experience it. [00:57:04] And also, as I understand the science, there's a unlike what you see on on television that we're not we're not there yet in terms of this notion of the machines having a consciousness or a great general intelligence, all those kinds of things. [00:57:24] Yeah, yeah. A huge amount of progress has been made. And there it's fascinating to watch some on both minds. [00:57:32] As a person who is building them, I'm realizing how sort of quote unquote dumb they are, but also looking at human history and how poor we are predicting the progress of innovation and technology. It's obvious that we have to be humble by our ability to predict, coupled with the fact that we keep to use terminology carefully here. [00:57:57] We keep discriminating against the intelligence of artificial systems. The smarter they get, the more ways we find to dismiss their intelligence. So this is just been going on throughout where I am. It's almost as if we're threatened in the most primitive human way, animalistic way. We're threatened by the power of other creatures and we want to lessen dismiss them. So consciousness is a really important one, but the one I think about a lot. In terms of consciousness, the very engineering question is whether the display of consciousness is the same as the possession of consciousness. [00:58:41] So if a robot tells you they are conscious, if a robot looks like they're suffering, when you torture them, if a robot is afraid of death and says they're afraid of death and are legitimately afraid for in terms of just everything, we as humans. Used to determine the ability of somebody to be their own entity, they're the one that loves one, their fears, one that hopes, one that can suffer if if a robot like in the dumbest of ways is able to display that. [00:59:23] We it change, it starts changing things very quickly, I'm not sure what it is, but it does seem that there's a huge component to consciousness that is a social creation, like we together create our consciousness, like we believe our common humanity together, alone. [00:59:44] We wouldn't be aware of our humanity. And the law as it protects our freedoms seems to be a construct that the social construct and when you add other creatures into it, it's not obvious to me that, like you have to build there will be a moment when you say this thing is now conscious. I think there's going to be a lot of fake it until you make it. And there'll be a very gray area between fake and make that is going to force us to contend with what it means to be an entity that deserves rights, where all men are created equal. [01:00:23] The men part might have to expand in ways that we are not yet anticipating. As very interesting, I mean, my favorite the fundamental thing I love about artificial intelligence, as it gets smarter and smarter, a challenge is to think of. What is right about questions of justice, questions of freedom? It basically challenges us. To try to understand our own mind, to understand what like almost from an engineering first principles perspective, to understand what it is that makes us human, that is at the core of all the rights that we talk about in all the documents we write. [01:01:06] So even if we don't give rights, artificial intelligence systems, we may be able to construct more fair legal systems to protect us humans. [01:01:15] Well, I mean, interesting ontological question between the performance of consciousness and an actual consciousness, to the extent that it's that actual consciousness is anything beyond some contingent reality. But you've posed a number of of of interesting philosophical questions. And then there is also it strikes me that that philosophers of religion would pose another set of questions as well. When you deal with issues of of structure versus soul, body versus soul. And it would be a it will be a complicated mix and I suspect I'll be dust by the time those questions get get worked out. [01:02:08] And so, yeah, the soul. The soul is a fun one. There's no soul. I'm not sure. Maybe you can correct me, but there's very few discussion of soul in our legal system. Right. Right. Correct. [01:02:21] So but there is a discussion about what constitutes a human being. [01:02:26] And I mean, you gestured at the notion of the potential of the law widening the domain of so of human being. So in that sense. Right. You know, people are very angry because they can't get a sort of pain and suffering damages if someone negligently kills a pet because a pet is not a human being and people say, well, I love my pet, but the law sees a pet as chattel, as property like this, this water bottle. [01:03:02] So the current legal definitions trade on a definition of humanity that may not be worked out in a sophisticated way. [01:03:14] But certainly there's a there's a sheer broad and shared understanding of what what it what it means. So probably doesn't explicitly contain a definition of something like soul, but it's it's more robust than, you know, a carbon based organism that there's something a little more distinct about what the Lord thinks a human being is. [01:03:41] So if we can dove into we've already been doing it, but we can dove into more difficult territory. So 20, 20 had the tragic case of George Floyd. When you reflect on the protests, on the racial tensions over the death of George FOID, how do you make sense of it all? [01:04:04] What do you take away from these events, like the George Floyd moment? Kurt occurred at at at an historical moment where people were in quarantine for covid and people. Have these cell phones to a degree greater than we've ever had them before, and this was a sort of the straw that broke the camel's back after a number of these sorts of cell phone videos surfaced, people were fed up. [01:04:45] They there was unimpeachable evidence of a form of of mistreatment, whether it constitutes murder or manslaughter there. The trial is going on now and jurors will figure that out. But but there was widespread appreciation that a fellow human being was was mistreated, that we were just talking about humanity, that there was not a sufficient recognition of this person's humanity, the common humanity of this person, the common humanity of this person. [01:05:23] Well said. And people were fed up. So we were already in this covid space where we were exercising care for one another. [01:05:33] And there was just an explosion, the likes of which this country hasn't seen since the, you know, civil rights protests of the 1950s and nineteen sixties. [01:05:45] And people simply said, enough, enough, enough, enough. This has to stop. We cannot treat fellow citizens in this way and we can't do it with impunity. And the young people said we're just we're just we're not going to stand for it anymore. [01:06:02] And they took to the streets but. With millions of people protesting. There is nevertheless taking us back to the most difficult of trials yet of the trial, like you mentioned, that's going on now, Derek, showing of one of the police officers involved. What are your thoughts, what are your predictions on this trial where the law, the process of the law is trying to proceed in the face of so much racial tension? [01:06:36] Yeah, it's it's going to be an interesting trial. I've been keeping an eye on it there in jury selection now today as we're talking. So lots going to depend on what sort of jury get selected, how they decide to take us time to interrupt. [01:06:51] But one of the interesting qualities of this trial, maybe you can correct me if I'm wrong, but the cameras are allowed in the courtroom, at least during the jury selection. So you get to watch some of the stuff. And the other part is the jury selection. Again, I'm very inexperienced, but it seems like selecting and what is an unbiased jury is really difficult for this trial. [01:07:18] It's almost like. [01:07:20] I I don't know me as a listener, like, you know, listening to people that are trying to talk their way into the jury kind of thing. [01:07:32] Trying to decide, is this person really unbiased or are they just trying to hold on to their, like, deeply held emotions and trying to get onto the jury? I mean, it's incredibly difficult process. I don't know if you can comment on a case so difficult like the ones you've mentioned before. How do you select a jury that represents the people and doesn't and carries the sort of the ideal of the law? [01:07:57] Yes. So a couple of things. So first, yes, it is televised and it will be televised, as they say, gavel to gavel. So the entire trial, the whole thing is going to be televised. So people are getting a view of how laborious jury selection can be. I think as of yesterday there pick six jurors and it's taken a week and they have to get to 14. So they've got, you know, probably another week or more to do. [01:08:27] I've been in jury trials where it took a month to choose a jury. So that's the most important part. You have to you have to choose the right sort of jury. So unbiased in the criminal justice system has a particular meaning. And it means that that let me tell you what it doesn't mean. It doesn't mean that a person is not aware of the case. It also does not mean that a person hasn't formed an opinion about the case. [01:08:57] Those are two popular misconceptions. [01:09:01] What it does mean is that notwithstanding whether an individual has formed an opinion, notwithstanding whether an individual knows about the case, that individual can set aside any prior opinions, can set aside any notions that they've developed about the case, and listen to the evidence presented at trial in conjunction with the judge's instructions on how to understand and view that evidence. So if a person can do that, then they're considered unbiased. So, you know, as a long time defense attorney, I you know, I would be hesitant in a big case like this to pick a juror who's never heard of the case or anything going around, because I'm thinking, well, who is this person and what what in the world do they do so? [01:09:52] Or are they lying to me? I mean, how can you not have heard about this case? So they may bring other problems. So, you know, I don't mind so much. People have heard about the case or folks who formed initial opinions. But you what you don't want is people who have tethered themselves to that opinion in a way that, you know, they can't be convinced otherwise. [01:10:20] So but you also have people who, as you suggested, who just lie because they want to get on the jury or lie because they want to get off the jury. [01:10:29] So sometimes people come and say, you know, the most ridiculous, outrageous, offensive things to know because they know that they'll get excused for cause. And others who you can tell really badly want to get on the jury. So they're, you know, they're just they pretend to be the most neutral, unbiased person in the world. What the law calls the reasonable person we have in law, the reasonable person standard. Yeah. And I would tell my class the you know, the reasonable person in real life is the person that you would be least likely to want to have a drink with the most boring, neutral, not interesting sort of person in the world. [01:11:15] And so a lot of jurors engage in the performative act of presenting themselves as the most sort of even keeled, rational, reasonable person because they really want to get on the jury. [01:11:27] Yeah, there's an interesting question. I apologize that I haven't watched a lot because it is very long. I watched it. You know, there's there's certain questions you've asked in the jurors. You ask in the jury selection. [01:11:40] And so I remember now, I think one jumped out at me, which is, you know, something like does the fact that this person is a police officer make you feel any kind of way about them? So trying to get at that, you know, I don't know what that is. I guess that's bias. And it's such a difficult question to ask. Like I asked myself that question, like how much, you know, we all kind of want to pretend that we're not racist or no judge. [01:12:14] We don't want to have we're like these were the reasonable human. [01:12:18] But, you know, legitimately asking yourself, like, are you what are the what are the prejudgments you have in your mind? [01:12:27] Is that even possible for a human being, like when you look. [01:12:31] Put yourself in the mirror and think about it. Is it possible to actually answer that? Yeah, I look, I do not believe that people can be completely unbiased. We all have baggage and bias and bring it wherever we go, including to court. What you want is to try to find a person who can at least recognize, yeah, when a bias is working and actively try to do the right thing, that's the best we can we can ask. [01:13:06] So if a juror says, yeah, you know, look, I grew up in a place where I tend to believe what police officers say, that's just how I grew up. But if the judge is telling me that I have to listen to every witness equally, then, you know, I'll do my best and I won't weigh that testimony any higher than I would any other testimony. If you have someone to answer a question like that, that sounds more sincere to me, sounds more honest, and if you want the person, you want a person to try to do that. [01:13:36] And then in closing arguments. [01:13:38] Right, as the lawyer, well, I'd say something like, ladies and gentlemen, you know, we chose you to be on this jury because you swore that you would do your level best, to be fair. That's why we chose you, and I'm confident that you're going to do that here. So when you heard that police officer's testimony, the judge told you you can't give more credit to that testimony just because it's a police officer. And I trust that you're going to do that and that you're going to look at witness number three. [01:14:13] You know, John Smith, you look at John Smith. John Smith has a different recollection and you're duty bound, duty bound to look at that testimony and this person's credibility, you know, the same degree as that other witness. Right. And now what you have is just a he said she said matter. And this is a criminal case that has to be reasonable doubt. [01:14:35] Right. So, you know, so you and really someone who's trying to do the right thing, it's helpful. But no, you're not going to just find 14 people with no biases. That's that's absurd. [01:14:47] Well, that's that's fascinating. That especially the way you're inspiring the way you're speaking now is I mean, I guess you're calling on the jury. That's kind of the whole system, is you calling on the jury, each individual on the jury to step up and really think, you know, to step up and be their most thoughtful selves actually was introspective. Like you're trying to basically ask people to be their best selves. And that's in they I guess a lot of people step up to that, and that's why the system works. [01:15:21] I'm very I'm very pro jury jury. So they they get it right. It works a lot of the time, most of the time. And they really work hard to do it. [01:15:32] So. What do you think happens? I mean, maybe I'm not so much on the legal side of things, but on the social side, it's like with the O.J. Simpson trial, do you think it's possible that Derek Schoen does not get convicted of what is a second degree murder? [01:15:57] How do you think about that, how do you think about the potential social impact that the the riots, the protests, though, either either direction or any words that are said? [01:16:09] The tension here could be explosive, especially with the cameras? [01:16:13] Yeah. So, yes, there's certainly a possibility that he he'll be acquitted for homicide charges. For the jury to convict, they have to make a determination as to Officer Chauvin's former Officer Chauvin's state of mind whether he intended. To cause them harm, whether he was grossly reckless. In causing harm, so much so that he disregarded a known risk of death or serious bodily injury, and as you may have read in the papers yesterday, the judge allowed a third degree murder charge in Kentucky, which is it's the mindset, the state of mind. [01:17:05] There is not an intention, but it's depraved indifference. And what that means is that the jury doesn't have to find that he intended to do anything. Rather, they could find that he was just indifferent to a risk as dark. [01:17:26] Yeah, yeah. I'm not sure what's worse. Well, that's a good point. [01:17:31] But but it's another basis for the jury to convict. [01:17:35] But but look, you never know what what happens when you go to a jury trial. [01:17:39] So there could be a an acquittal. And if there is, I imagine there would be massive protests if he's convicted. [01:17:53] I don't think that would happen because I just don't see at least nothing I've seen or read suggest that there's a big pro Trovan camp out there ready to protest that. [01:18:06] Well, there could be a is there also potential tensions that could arise from the sentencing? I don't know how that exactly works. Sort of not enough years kind of thing. Yeah, it could be like all the kind of damage a lot could happen. So it depends on what he's convicted of. You know, one count, I think is like up to 10 years, another count up to 40 years. So it depends what he's convicted of. And yes, it depends on how much of that how much time the judge gives him if he is convicted. [01:18:36] There's a lot of space for people to be very angry. [01:18:39] And so we will we will see what happens. [01:18:42] I just feel like with the judge and the lawyers, there's an opportunity to have really important, long lasting speeches. I don't know if they think of it that way, especially with the cameras. It feels like they have the capacity to heal or to divide dear. [01:19:05] Or think about that as a as a lawyer, as a legal mind, that your words aren't just about the case, but about the they'll reverberate through history potentially. [01:19:17] That is that is certainly a possible. Consequence of things you say, I don't think that most lawyers think about that in the context of a case, your role is much more narrow. You're the partizan advocate as a defense lawyer, partizan advocate for that client, as a prosecutor, your minister of justice attempting to prosecute that particular case. But the reality is you are absolutely correct that sometimes the things you say will have a shelf life. And you mentioned O.J. Simpson before. [01:19:57] You know, if the glove doesn't fit, you must acquit. It's going to be, you know, just in our lexicon for probably a long time now. So so it happens. But that's not and shouldn't be foremost on your mind. Right. [01:20:12] What do you make what do you make of the O.J. Simpson trial? Do you have thoughts about it? He is. He's out and about and on social media now. He's a public figure. Is there lessons to be drawn from that whole saga? Well, you know, that was an interesting case. [01:20:28] I was a young public defender. I want to say, in my first year as a public defender when that verdict came out. So that case was important in so many ways. One, it was the first DNA case, major DNA case, and there were significant lessons learned from that. One mistake that the prosecution made was that they didn't present the science in a way that a jury could understand it. And what Johnnie Cochran did was he understood the science and was able to. [01:21:08] Translate that into a into a vocabulary that he bet that that jury understood. So so Cochran was dismissive of a lot of DNA. [01:21:21] They say, you know, he said something like, oh, you know, they say they found, you know, such and such amount of DNA. That's just like me, you know, wiping my finger against my nose and and just that little bit of DNA. And that was effective because the prosecution hadn't done a good job of establishing that. Yes, it's a microscopic. [01:21:43] You don't need that much. Yes. Wiping your hand on your nose and touching something. You can transfer a lot of DNA and that gives you good information. But, you know, it was the first time that the public generally and that jury maybe since high school science, it heard, you know, you know, nucleotide. I mean, it was just all these terms getting thrown at them and and but it was not weaved into a narrative. So Cochran taught us that no matter what type of case it is, no matter what science is involved, it's still about storytelling. [01:22:17] It's still about a narrative. And he was and he was great at that at that at that narrative. And what's consistent with his narrative all the way out? Another lesson that was relearned is that, you know, you never ask a question to which you don't know the answer. That's like trial. Absolutely. One on one. And so when they gave O.J. Simpson the glove and it wouldn't fit, you know, you don't you don't do things. [01:22:51] We just don't know how it's going to turn out. [01:22:53] It was way, way too risky. [01:22:55] And then and I think that's what acquitted him because that glove, the glove just wouldn't fit. And he got to do this and have them in front of the camera and all of that. And it was big. [01:23:08] Do you think about do you think my representation is storytelling like you yourself in your role? Absolutely. [01:23:14] We tell stories. It is fundamental. We since time immemorial, we have told stories to help us make sense of the world around us. So as a scientist, you tell a different type of story. But we as a public have told stories from time immemorial to help us make sense of the physical and the natural world. [01:23:43] And we are still as a species that is moved by storytelling so that that's first and last in try work. [01:23:53] You have to tell a good story. And you know, the basic introductory books about trial work. Teach young students, young students and young lawyers to start in. Opening with this case is about, this case is about. And then you fill in the blank and you know, that's your narrative. That's the narrative you're going to you're going to tell. [01:24:16] And of course, you can do the ultra dramatic. The glove doesn't fit kind of the climax and all those kinds of things. Yes, but that's that's the narrative. The best. The stories. Yes. [01:24:29] Speaking of other really powerful stories that you were involved with is the Aaron Hernandez trial and the whole story, the whole legal case. Can you maybe overview the big picture story and legal case of Aaron Hernandez? [01:24:44] Yeah. So Aaron, whom I miss a lot. So he was charged with a double murder and in the case that I tried and this was a unique case and one of those impossible cases in part because Aaron had already been convicted of a murder. [01:25:05] And so we had a client who was on trial for a double murder after having already been convicted of a separate murder. And we had a jury pool, just about all of whom knew that he had been convicted of of a murder because he was a very popular football player in Boston, which is a big football town with with the Patriots. [01:25:30] So, you know, so everyone knew that he was a convicted murderer. And here we are defending four in a double murder case. So that was that was the context. [01:25:42] It was in our case, in the sense that that this murder had gone gone unsolved for a couple of years. And then a nightclub bouncer said something to a cop who was working at a club. That Aaron Hernandez was somehow involved in that in that murder that happened in the theater district, that's a district where all the clubs are in Boston and where the the homicide occurred. And once the police heard Aaron Hernandez's name, then it was, you know, they went all out in order to do this. [01:26:21] So they found a guy named Alexander Bradley, who was a very significant drug dealer in the sort of Connecticut area. Very, very significant, very powerful. And he essentially, in exchange for a deal pointed to Aaron said, yeah, I was with Aaron and and Aaron was the was the murderer. [01:26:58] So that's how the case came to court. [01:27:01] OK, so that sets the context. What was your involvement in this case, like, legally, intellectually, psychologically, when this particular second charge of murder? [01:27:15] So a friend called me Jose Baez, who is a defense attorney, and he comes to a class that I teach every year at Harvard, the trial advocacy workshop, as one of my teaching faculty members. [01:27:33] It's a class where we teach students how to try cases. So Jose called me and said, Hey. I got a call from Massachusetts, Aaron Hernandez, you want to go and talk to him with me? So I said, sure. So we went up to the to the prison and and met Aaron and spoke with him for two or three hours at first time. [01:28:02] And before we left, he said he wanted to retain us, he wanted to work with us. And that started the representation. [01:28:10] What was he like? Well, in that time, what was he worn down by the whole process? [01:28:16] Was he wasn't he light in that he was not? He had I mean, more than just a light. He was luminous almost. He had a radiant million dollar smile. Whenever you walked in. My first impression, I distinctly remember, was, wow, this is what a professional athlete looks like. And he walked in and he's just just bigger and more fit than, you know, anyone, you know, anywhere. And it's like, wow, this. [01:28:45] And, you know, when you saw him on television, he looked kind of little. And I was like, so I remember thinking, well, what do those other guys look like, Pursat? And and he's extraordinarily polite young guys. I was surprised by how young he was both in mind and body. [01:29:10] But chronologically, I was, you know, thinking he was in, as you know, in his early 20s, I believe. [01:29:16] But there seemed to be like an innocence still in terms of just the way he saw the world. I think that's right. I picked that up from the from the documentary. Just take that. And I think that's right. Yeah. Yeah. [01:29:28] So there is a Netflix documentary titled Killer Inside the Mind of Aaron Hernandez. What are your thoughts on this documentary? [01:29:37] And if you got a chance to say, I did that, I have not seen it. I did not participate in it. I know I was in it because of there was news footage there, but I did not participate in it. [01:29:48] I had not talked to Aaron about about press or anything before he died. [01:29:57] My strong view is that the attorney client privilege survives death. And so I was not inclined to talk about anything that Aaron and I talked about. So I just didn't participate and and never watch, not even watch this. [01:30:11] Is that does that apply to most of your work? Do you try to stay away from the way the press perceives stuff during. [01:30:19] Yes, I try to stay away from it. I will view it afterwards. I just hadn't gotten around to watching Aaron, because it's kind of it's kind of sad. Yeah. So I just I haven't watched it, but I definitely stay away from the press during trial. And, you know, there are some lawyers who watch it religiously to see what's going on. But, you know, I'm I'm confident in my years of training and so forth that and that I can actively sense what's going on in the courtroom and and that I really don't need advice from Joe for seven six at Gmail, you know, some random guy on the Internet telling me how to try cases. [01:31:04] So, yeah, it just to me, it's just confusing. And I just I keep it out of my mind. [01:31:08] And even if you think you can ignore it, just reading it will have a little bit of an effect on your mind. I think that. Oh, I think that's right. Over time I might accumulate. So the documentary. But in general, you mentioned or kind of emphasized and talked about Aaron's sexuality or sort of they were discussing basically the idea that he was a homosexual and some of the trauma, some of the. Suffering that he endured in his life had to do with the sort of fear given the society of. [01:31:49] Of what his father would think of what others around him, sort of especially in sport, culture and football and so on, so. [01:31:59] I don't know, in your interaction with him was do you think that maybe even leaning up to a suicide, do you think his struggle with coming to terms with his sexuality had a role to play in much of his difficulties? [01:32:18] Well, I'm not going to talk about my interactions with him in anything I derived from from that. [01:32:25] But, you know, what I will say is that a story broke on the on the radio at some point during the trial that Aaron had been in a same sex relationship with someone and some sport, local sportscasters, local Boston sportscasters, or really mushroomed the the the story. So he and everyone was aware of it. You'll you also may know from the court record that the prosecutors floated a specious theory for a minute, but then backed off of it. [01:33:13] That, you know, that Aaron, was that there was some sort of, I guess, gay rage at work with him. And that might be a cause, motive for the killing. And luckily, they really backed off of that. That was quite an offensive claim in theory. So but to answer your question more directly, I mean, I have no idea why he killed himself. It was a surprise and a shock. I was scheduled to go see him like a couple of days after it happened. [01:33:48] I mean, he was anxious for Josie and I to come in and do the appeal from the murder, which he was convicted for. He wanted us to take over that appeal. He was talking about going back to football. I mean, he said, well, you talk about this earlier. You talked about the sort of innocent aspect of him. He said, you know, well, Ron, maybe not, maybe not the Patriots, but, you know, I want to get back in the league. [01:34:16] And I was like, you know, Aaron, that's that's got to be tough, man. But but he really you know, he really believed it. And and then, you know, for a few days later that to happen. [01:34:29] It was just it was a real shock to me. [01:34:31] Like when you look back at that, at his story, does it make you sad? [01:34:38] Very, very. I thought so. So one, I believe he he absolutely did not commit the crimes that we acquitted him on. I think that was the right answer for for for that. I don't know enough about Bradley. The first case I'm sorry to make to make an opinion on. But but Beñat case, you know, it was just he had the misfortune of having a famous name. Yes. And the police department just really just just really got gun on him there. [01:35:19] So, yes, it's it's abysmal. And it was very, very sad. Surprising. [01:35:26] And I mean, just on the human side, of course, we don't know the full story, but. [01:35:31] Just everything that led up to suicide, everything right up to an incredible professional football player, you know, that whole story, if a remarkably talented athlete, remarkably talented athlete, and it has to do with all the all the possible trajectories. [01:35:49] Right. That we can take the life, as we were talking about before. [01:35:52] And some of them lead to to suicide, sadly enough. [01:35:58] And it's always tragic when you have some you know, somebody with a. [01:36:04] With great potential resulting in the things that happen, right, people love it when I ask about books, I don't know if I whether technical like legal or fiction, nonfiction books throughout your life have had an impact on you. If there's something you could recommend or something you could speak to about something that inspired ideas, insights about this world, complicated world of ours. Oh, wow. [01:36:35] Yeah. So I'll give you a couple. So one is a contingency irony and solidarity by Richard Warty. He's a he's passed away now but was a philosopher. Some of our major institutions, Princeton, Harvard, Stanford, contingency irony and solidarity. At least that's a book that really helped me work through a series of thoughts. So it stands for the proposition that that our most deeply held beliefs are contingent, that there there's nothing beyond history or prior to socialization. [01:37:20] That's the final story of the human being. That's right. And he says that our most deeply held beliefs are received wisdom and highly contingent along a number of registers. And he does that, but then goes on to say that he nonetheless can hold strongly held beliefs, recognizing their contingency, but still believes them to be true. [01:37:49] And equanimity helps you to work through what could be an intellectual tension. In other words. So so you don't delve into one, doesn't delve into relativism or everything is OK, but it gives you a vocabulary to think about how to negotiate these these these realities. [01:38:12] Do you share this tension? I mean, there is a real tension. It seems like even like the law, the legal system is all just a construct of our human ideas. And yet it seems to be almost feels fundamental to what a society is. [01:38:32] Yeah, I definitely share the tension and love his his vocabulary in the way he's helped me resolve the tension. So. Right. I mean. Yeah, yeah. So like, you know, infanticide, for example, perhaps it's socially contingent, perhaps it's received wisdom, perhaps it's anthropological. [01:38:58] You know, we need to propagate the species. [01:39:00] And I still think it's wrong and and and and and has helped me develop a category to say to to say that, no, I can't provide any, in his words, not circular theoretical backup for this proposition. [01:39:17] At some point it's going to run me in in a circularity problem. But that's OK. I hope this nonetheless in for recognition of its contingency. But what it does is, is is is makes you humble. And and when you're humble, that's good. Because, you know, this notion that ideas are always already in progress, never fully formed, I think is is is the sort of intellectual I strive to be. [01:39:47] And if I have a sufficient degree of humility that I don't have the final answer, Capital A, then that's going to help me to get to better answers lowercase A and what he does and he talks about in the solidarity part of the book, he has this concept of imaginative, the imaginative ability to see other different people as we instead of they. And I just think it's a beautiful concept. But he talks about this imaginative ability. It's this active process. [01:40:24] So I mean, so that's a book that's done a lot of work for me over the years. Souls of Black Folk by Bede Boyce was absolutely pivotal, pivotal in my intellectual development, one of the premier set of essays in the Western literary tradition. And it's a deep and profound sociological, philosophical and historical analysis of the predicament of blacks in America from. One of our country's greatest polymaths, it it's just a it's a beautiful Texan and I go to it yearly. [01:41:15] So for somebody like me, so growing up in the Soviet Union, the struggle, the civil rights movement, the struggle of race and all those kinds of things, that that is you know, it's universal, but it's also very much a journey of the United States. It was kind of a foreign thing that I stepped into. Is that something you would recommend somebody like me to read, or is there other things about race that are good to connect? [01:41:45] Because my my my flavor of suffering injustice. I'm a Jew as well. My flavor has to do over two and the studies of that, you know, all the injustices there. So I'm now stepping into a new set of injustice and trying to learn the landscape. [01:42:01] I would I would say anyone is is a better person for having read Dubois. It's just he's just a remarkable writer and thinker. And it I mean, to the extent you're interested in learning another history, he does it in a way that is quite sophisticated. So it's so it's interesting. I was going to give you three books. I noticed the accent when I met you, but I didn't know exactly where you're from. But the other book I was going to say is Dostoevsky's Crime and Punishment. [01:42:41] And I mean, I've always wanted to go to St. Pete's just to sort of see with my own eyes what the word pictures that Dostoevsky created in Crime and Punishment. And, you know, I love other stuff to The Brothers Karamazov and so forth, but Crime and Punishment, I first read in high school as a junior or senior, and it is a deep and profound meditation on the the both the meaning and the measure of our lives. And Dostoyevsky, obviously, and in conversation with other thinkers, really gets at the the the crux of a fundamental philosophical problem. [01:43:31] What does it mean to be a human being? And and for that, Crime and Punishment captured me as a teenager. And that's another text that I return to often. [01:43:45] We've talked about young people a little bit at the beginning of our conversation. [01:43:51] Is there advice that you could give to a young person today, thinking about their career, thinking about their life, thinking about making their way in this world? Yeah, sure. [01:44:03] I'll share some advice. It actually picks up one question we talked about earlier with in the academy in schools. But it's some advice that a professor gave to me when I got to Harvard. And it is this that you have to be willing to come face to face with your intellectual limitations and keep going. [01:44:26] And that's and it's hard for people. I mean, you mentioned this earlier to to face a really difficult task, and particularly in the sort of elite spaces where you've excelled all your life and you come to MIT and you're like, wait a minute, I don't understand this. [01:44:44] This is hard. I've never had something really hard before. And there are a couple options. And a lot of people will pull back and take the gentleman or just a woman's B and and just go on or risk. Going out there, giving it your all and still not quite getting it, and that that that's a risk, but it's a risk well worth it because you're just going to be the better person, the better student for it. [01:45:12] And, you know, and even outside of the academy, I mean, come come face to face with your fears and keep going and keep going in life. And you're going to be the better person, the better human being. [01:45:27] Yeah, it does seem to be I don't know what it is, but it does seem to be that fear is a good indicator of something you should probably face. Yes. Like fear kind of shows the way a little bit. Not always. You might not want to go to the cage with a lion, but because maybe you should maybe. [01:45:53] Let me ask sort of a darker question, because we're talking about the CSK. We might as well. [01:45:59] How do you do you and connected to the group freeing innocent people. Do you think about mortality? Do you think about your own death? Are you afraid of death? [01:46:14] I'm not afraid of of death. I do think about it more now because I'm now in my mid 50s, so I used to not think about it much at all. But the harsh reality is that I've got more time behind me now that I do in front of me. And it kind of happens all of a sudden you realize, wait a minute, I'm I'm actually on the back nine now. So, yeah, my mind moves to it from time to time. [01:46:45] I don't dwell on it. I'm not afraid of it. My own personal religious commitment. I'm Christian and my religious commitments buie me that, you know, that that death and I believe this death is not not not the end. So I'm not afraid of it. Now, this is not to say that I want to. I want to I want to rush to the afterlife. I'm good right here for a long time. And I hope I've got, you know, 30, 35, 40 more years to go. [01:47:18] But but but no, I don't I don't I don't fear death, though. [01:47:23] We're finite creatures. We're all going to we're all going to die. [01:47:29] Well, the mystery of it, you know, for somebody, at least for me, we human beings want to figure everything out or whatever the afterlife is. [01:47:40] There's still a mystery to it that that uncertainty. Yeah, it can be terrifying if you ponder it. [01:47:47] But maybe what you're saying is you haven't pondered it too deeply so far and it's worked out pretty good. [01:47:56] It's worked up. Yeah, no, no complaints. [01:47:59] See said again, the CFC kind of. [01:48:03] Or it was exceptionally good at getting to the core or what it means to be human, do you think about like the why of why we're here, the the meaning of this whole existence? [01:48:17] Yeah, no, I do. I think and I actually think that's the purpose of an education. What does it mean to be a human being? And in one way or another, we set out to answer those questions and we do it in a different way. I mean, some may look to philosophy to answer these questions. Why is it in one's personal interest to to do good to do just to do justice? Some may look at it through the economist's lens. [01:48:57] Some may look at it through the microscope in the laboratory that the phenomenal world is is is the meaning of life. Others may say that that's one vocabulary, that's one description. But the poet describes a reality to the same degree as a physicist. But that's the purpose of of an education. It's to sort of work through these issues. What does it mean to be a what does it mean to be a human being? [01:49:34] And I think it's a fascinating journey and I think it's a lifelong endeavor to figure out what is the thing, that nugget that makes us human. [01:49:44] Do you still see yourself as a student? Of course not. [01:49:47] Yes. I mean, that's that's the best part about going into into university teaching. You're a lifelong student. I'm always learning. I learn from my students and with my students and my colleagues. And here you continue to read and and and learn and and modify opinions. And I think it's just a wonderful thing. [01:50:09] Well, Ron, I'm so glad that somebody like you is carrying the fire of what is the best of Harvard. So it's a huge honor that you spend so much time waste so much of your valuable time with me. I really appreciate it. Not at all. I think a lot of people love it. Thank you so much for talking today. [01:50:31] Thank you. Thanks for listening to this conversation with Ronald Sullivan and thank you to Brooklyn Sheets, wine access, online wine store multipack, low carb snacks and blankest app that summarizes books. Click their links to support this podcast. And now let me leave you some words from Nelson Mandela. When a man is denied the right to live the life he believes in, he has no choice but to become an outlaw. Thank you for listening and hope to see you next time.