#170 – Ronald Sullivan: The Ideal of Justice in the Face of Controversy and Evil

[0] The following is a conversation with Ronald Sullivan, a professor at Harvard Law School, known for taking on difficult and controversial cases.

[1] He was on the head legal defense team for the Patriots football player Aaron Hernandez in his double murder case.

[2] He represented one of the GNA six defendants and never lost the case during his years in Washington, D .C.'s public defender services office.

[3] In 2019, Ronald joined the legal defense team of Harvey, Weinstein, a film producer facing multiple charges of rape and other sexual assault.

[4] This decision met with criticism from Harvard University students, including an online petition by students seeking his removal as faculty dean of Winthrop House.

[5] Then, a letter supporting him signed by 52 Harvard Law School professors appeared in the Boston Globe on March 8th, 2019.

[6] Following this, the Harvard administration succumbed to the pressure of a few Harvard students, and announced that they will not be renewing Ronald Sullivan's dean position.

[7] 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.

[8] This conversation is brought to you by Brooklyn and Sheets, Wine Access Online Wine Store, monk pack low -carb snacks, and Blinkist app that summarizes books.

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[10] As a side note, let me say that the free exchange of difficult ideas is the only mechanism through which we can make progress.

[11] Truth is not a safe space.

[12] Truth is humbling, and being humbled can hurt.

[13] But this is the role of education, not just in the university, but in business and in life.

[14] Freedom and compassion can coexist, but it requires work and patience.

[15] It requires listening to the voices and to the experiences unlike our own.

[16] Listening, not silencing.

[17] I'll do a few minutes of ads now and no ads in the middle.

[18] I tried to have fun with these, even though my voice is genetically incapable of sounding like I'm having fun.

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[26] 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 I 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.

[27] And when you have a minimalist life like that, you could really appreciate quality.

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[29] Of course, it's a Venn diagram.

[30] 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.

[31] Intrinsic versus extrinsic, I guess.

[32] Again, it's probably a significant overlap.

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[46] I personally had a lot of joyful experiences and drinking wine because, at least for me, wine has been a thing that brings close friends and family together over a great meal.

[47] So I kind of think there's several categories of alcohol.

[48] Wine is like about sharing love with friends.

[49] And then there's like the other side of the spectrum, which is tequila, where every single experience I've had where tequila was involved.

[50] I've regret it.

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[60] This episode is also brought to you by Monk Pack keto granola bars that contains just one gram of sugar, two grams of net carbs, and there are only 140 calories.

[61] It's actually an interesting, to think about what kind of fuel is needed when you're on a low -carb diet, when you all of a sudden step up the performance needs.

[62] So, like, if I usually run, you know, five or six miles here and there, do a few push -ups and pull -ups and so on, if I all of a sudden have to run like an ultramarathon, 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.

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[65] All that stuff, there's so many debates.

[66] They're so confusing.

[67] I don't know what to make of it.

[68] I think I go back to the same thing I always go back to, which is you have to experiment on yourself and you have to listen to your body.

[69] Like, don't listen to a random guy in the internet.

[70] Listen to your body over that.

[71] Okay.

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[76] This episode is also supported by Blinketh, my favorite app for learning new things.

[77] Blinkist takes the key ideas from thousands of of nonfiction books and condenses them down into just 15 minutes that you can read or listen to.

[78] They've also started doing this weirdly amazing thing called shortcasts, which summarizes podcasts.

[79] They have like a selection of podcasts and they summarize them.

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[86] I really actually enjoy this idea of hardcore summarization.

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[92] reading long -form content or listening to long -form content as well.

[93] And I actually think there's space to listening to stuff at like 1 -X and pausing and giving in your mind a chance to think.

[94] I really think there's power and silence.

[95] You can call it boredom or whatever, but it's that meditative silence that you want to escape.

[96] There's an anxious desire to escape that silence.

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[104] This is the Lex Friedman podcast.

[105] Here is my conversation with Ronald Sullivan.

[106] You were one of the lawyers who represented the Hollywood producer Harvey Weinstein in advance of a sexual assault trial.

[107] For this, Harvard forced you to step down as faculty deans, you and your wife, of Winter Pous.

[108] Can you tell the story of this saga from first deciding to represent Harvey Weinstein to the interesting, complicated events that followed?

[109] Yeah, sure.

[110] 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 Harvey.

[111] He wanted to meet me and chat with me about representing him.

[112] I said yes.

[113] And one thing led to another.

[114] I drove out to Connecticut where he was staying and met with him and some of his advisors.

[115] And then a day or two later, I decided to take the case.

[116] This would have been back in January of 2019, I believe.

[117] So the sort of cases, I have a very small practice most of my time is teaching and writing.

[118] But I tend to take cases that most deem to be impossible.

[119] I take the challenging sorts of cases.

[120] And this was fit the bill.

[121] It was quite challenging in the sense that everyone had prejudged the case.

[122] When I say everyone, I just mean the general sentiment in the public had the case prejudged, even though the specific allegations did not regard any of the people in the New Yorker.

[123] That's the New Yorker article that sort of exposed everything that was going on, allegedly, with Harvey.

[124] So I decided to take the case, and I did.

[125] Is there a philosophy behind you taking on these very difficult cases?

[126] Like, is it a set of principles?

[127] Is it just your love of the law, or is there like a set of principles why you take on the cases?

[128] Yeah, I do.

[129] I'd like to take on hard cases, and I'd like to take on the cases that are with unpopular defendants, unpopular clients.

[130] And with respect to the latter, that's where Harvey Weinstein fell, it's because we need lawyers and good lawyers to take the unpopular cases.

[131] Because those sorts of cases, determine what sort of criminal justice system we have.

[132] If we don't protect the rights and the liberties of those whom the society deems to be the least and the last, the unpopular client, then that's the camel's nose under the tent.

[133] If we let the camel's nose under the tent, the entire tent is going to collapse.

[134] 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.

[135] knocking it down and violating your rights.

[136] 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.

[137] And these are the sorts of cases that tested.

[138] So, you know, for example, there was a young man many, many years ago named Ernesto Miranda.

[139] By all accounts, he was not a likable guy.

[140] He was, you know, a three -time knife thief.

[141] and not a likable guy, but lawyer stepped up and took his case.

[142] And because of that, we now have the Miranda warnings.

[143] You have the right to remain silent, those warnings that officers are forced to give to people.

[144] So it is through these cases that we express oftentimes the best values in our criminal justice system.

[145] 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, most of whom do not experience the criminal justice system.

[146] 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.

[147] As from a psychological perspective, just you as a human, Is there fear, is there stress from all the pressure?

[148] 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, these set of laws that this country is built on.

[149] No, it doesn't stress me out particularly.

[150] It, you know, it sort of comes with the territory.

[151] I try not to get too excited in either direction.

[152] So a big part of my practice is wrongful convictions, and I've gotten over 6 ,000 people out of prison who've been wrongfully incarcerated, and a subset of those people have been convicted.

[153] And, you know, there are people who have been in jail 20, 30 years who have gotten out.

[154] And those are the sorts of cases where people praise you and that sort of.

[155] thing.

[156] And so look, I do the work that I do.

[157] I'm proud of the work that I do.

[158] And in that sense, I'm sort of a part -time Taoist.

[159] The expression reversal was the movement of the Tao.

[160] So I don't get too high.

[161] I don't get too low.

[162] I just try to do my work and represent people to the best of my ability.

[163] So one of the hardest cases of recent history would be the Harvey Weinstein in terms of popular opinion or unpopular opinion.

[164] So if you continue on that line, where does that story take you of taking on this case?

[165] Yeah.

[166] So I took on the case and then there was some, a few students at the college.

[167] So let me back up.

[168] I had an administrative post at Harvard College, which is a separate entity from the Harvard Law School.

[169] Harvard College is the undergraduate portion of Harvard University and the law school is obviously the law school.

[170] And I initially was appointed as master of one of the houses.

[171] We did a name change, five or six years into it, and were called faculty deans.

[172] But the houses at Harvard are based on the college system of Oxford and Cambridge.

[173] 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.

[174] These are undergraduate students.

[175] These are undergraduate students.

[176] So I was responsible for one of the houses as its faculty dean.

[177] So it's an administrative appointment at the college.

[178] And some students who clearly didn't like Harvey Weinstein began to protest about the representation.

[179] And from there, it just mushroomed into one of the most craven, cowardly, acts by any university in modern history.

[180] It's just a complete and utter repudiation of academic freedom.

[181] And it is a decision that Harvard certainly will live to regret.

[182] Frankly, it's an embarrassment.

[183] We expect students to do what students do.

[184] And I encourage students to have their voices heard and to protest.

[185] I mean, that's what students do.

[186] what is vexing are the adults.

[187] The dean of the Faculty of Arts and Science, Claudine Gay, absolutely craven and cowardly, the dean of the college.

[188] Same thing, Rakesh Karana, craven and cowardly.

[189] They capitulated to the loudest voice in the room and ran around afraid of 19 -year -olds.

[190] Oh, 19 -year -olds are upset.

[191] that I need to do something.

[192] And it appeared to me that they so, so desired the approval of students that they were afraid to make the tough decision and the right decision.

[193] It really could have been an important teaching moment at Harvard.

[194] A teaching moment, yeah.

[195] Very important teaching moment.

[196] So they forced you to step down from that faculty dean position at the house.

[197] I would push back on the description a little bit.

[198] So I don't write the, you know, the references to the hop -ed idea in New York time.

[199] Harvard made a mistake by making me step down or something like that.

[200] So I don't write those things.

[201] I did not step down and refuse to step down.

[202] Harvard declined to renew my contract.

[203] 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 cowardly act that they, in fact, did.

[204] And, you know, the worst thing about this, they did the college, Dean Gay and Dean Karana commissioned this survey.

[205] They've never done this before, survey from the students, you know, how do you feel at Winthrop House?

[206] And the funny thing about the survey is they never released the results.

[207] Why did they never release the results?

[208] 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.

[209] Most of the students were fine.

[210] It was the loudest voice in the room.

[211] So they never released it.

[212] And I challenged them to this day.

[213] Release it.

[214] Yes.

[215] Release it.

[216] But no. But, you know, they wanted to create this.

[217] narrative and when the data didn't support the narrative, then they just got silent.

[218] Oh, we're not going to release it.

[219] The students demanded it.

[220] 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.

[221] There was a group of students that weaponized a term unsafe.

[222] They said we felt unsafe, and they bantied this term about.

[223] But again, I'm confident that the majority of students at Winthrop House said they felt completely fine and felt safe and so forth.

[224] And the super majority, I am confident, either said, I feel great at Winthrop or, you know, I don't care one way or the other.

[225] And then there was some minority who had a different view.

[226] But, you know, lessons learned.

[227] It was a wonderful opportunity at Winthrop.

[228] I met some amazing students over my 10 years as master and then faculty, dean.

[229] And I'm still in touch with a number of students, some of whom are now my students at the law school.

[230] So in the end, I thought it was a – it ended up being a great.

[231] experience.

[232] The national media was just wonderful in this.

[233] It's just wonderful.

[234] People wrote such wonderful articles and accounts and wagged their finger appropriately at Harvard.

[235] Compared me to John Adams, which I don't think is an apt comparison, but it's always great to read something like that.

[236] But at any rate, that was the Harvard, the Harvard versus Harvey situation.

[237] So that seems like a seminal mistake by Harvard, and Harvard is one of the great universities in the world.

[238] And so sort of its successes and its mistakes are really important for the world as a beacon of how we make progress.

[239] So what lessons for the bigger academia that's under fire a lot these days, what bigger lessons do you take away?

[240] Like how do we make Harvard great How do we make other universities, Yale, MIT, great in the face of such mistakes?

[241] Well, I think that we have moved into a model where we have the consumerization of education.

[242] That is to say, we have feckless administrators who make policy based on what the students say.

[243] 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.

[244] 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, MIT, quite literally the greatest minds on Earth.

[245] They are there for a reason.

[246] Things like curriculum and so forth are rightly in the province of faculty.

[247] And while you take input and critique and so forth, ultimately the grownups in the room have to be sufficiently responsible to take charge and to direct the course of a student's education.

[248] 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.

[249] But rather than having that conversation, it's just this consumerization model.

[250] Well, there's a lot of noise out here, so we're going to react in this sort of way.

[251] Higher education as well, unfortunately, has been commodified in other sorts of ways that has reduced or impeded, hampered these schools' commitments to free and robust and open dialogue.

[252] 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.

[253] And I really hope 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 and the best interests of the student, even to the degree, though, some of those decisions may be unpopular.

[254] And that is going to require a certain courage.

[255] And hopefully in time, and I'm confident that in time, administrators are going to begin to push back on these current trends.

[256] Harvard's been around for a long time.

[257] It's been around for a long time for a reason.

[258] And one of the reasons is that it understands itself not to be static.

[259] So I have every view that Harvard is going to adapt and get itself back on course and be around another.

[260] 400 years.

[261] So that's Michael.

[262] So, I mean, what this kind of boils down to is just having difficult conversation, difficult debates.

[263] When you mentioned sort of 19 -year -olds, and it's funny, I've seen this even at MIT, it's not that they shouldn't have a voice.

[264] They do seem to, I guess you have to experience it and just observe it.

[265] They have a strangely disproportionate power.

[266] Right.

[267] Right.

[268] It's very interesting to basically, I mean, you say, yes, there's great faculty and so on, but, you know, it's not even just that the faculty is smart or wise or whatever, it's that they're just silenced.

[269] So the terminology that you mentioned is weaponized is sort of safe spaces or that certain conversations make people feel unsafe.

[270] What do you think about this kind of idea?

[271] You know, is there some things, that are unsafe to talk about in the university setting?

[272] Is there lines to be drawn somewhere?

[273] And just like you said, on the flip side with a slippery slope, is it too easy for the lines to be drawn everywhere?

[274] Yeah, that's a great question.

[275] So this idea of unsafe space, at least the vocabulary, derives from some research, academic research about feeling psychologically, unsafe.

[276] And so the notion here is that there is, there are forms of a psychological disquiet that impedes people from experiencing the educational environment to the greatest degree possible.

[277] And that's the argument.

[278] I, and assuming for a moment that people do have these feelings of, of, of, of, of, of quiet at elite universities like MIT and like Harvard, 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 sorts of nets that these schools provide, safety nets that these schools provide.

[279] So to the extent that research is descriptive of a psychological feeling, that the duty of the universities are to challenge people.

[280] It seems to me that it's a shame to go to a place like Harvard or place like MIT, Yale, any of these great institutions and come out the same person that you were when you went in.

[281] That seems to be a horrible waste of four years and money and resources.

[282] Rather, we ought to challenge students that they grow, challenge some of their most deep.

[283] held assumptions.

[284] They may continue to hold them, 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.

[285] So to extent that there are lines that should be drawn, there's a long tradition in the University of Civil Discourse.

[286] So you should draw a lines somewhere between civil discourse and uncivil discourse.

[287] The purpose of a university is to talk difficult conversations, tough issues, talk directly and frankly, but do it civilly.

[288] And, you know, so to, you know, yell and cuss at somebody and that sort of thing, well, you know, do that on your own space, but observe the norms of civil discourse at the university.

[289] So look, I think.

[290] I think, think that the presumption ought to be that the most difficult topics are appropriate to talk about at a universe.

[291] That ought to be the presumption.

[292] Now, you know, should MIT, for example, give its imprimatur to someone who is expousing the flat earth theory, you know, the earth is flat, right?

[293] So there, if certain ideas are so contrary to the scientific and cultural thinking 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 flat.

[294] But, you know, a topic that's controversial, but contestatory, that's what universities are for.

[295] If you don't like the idea, present better ideas and articulate them.

[296] And I think there needs to be a mechanism outside of the space of ideas of humbling.

[297] Like, I've done martial arts for a long time.

[298] I got my ass kicked a lot.

[299] I think that's really important.

[300] I mean, in the space of ideas, I mean, even just in engineering, just all the math class.

[301] My memories of math, which I love, is kind of pain, is basically coming face to face 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.

[302] That's really humbling.

[303] That puts you, because I remember when I was 18 and 19, and I thought, I'll, I'll was gonna be the smartest, the best fighter, the Nobel Prize winning, you know, all those kinds of things.

[304] And then you come with face to face with reality and it hurts.

[305] 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.

[306] And that's what I felt was missing.

[307] 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.

[308] I kind of gotten broken down because, as you say, there does, like, I sensed fear.

[309] Everything was permeated with fear.

[310] And fear is paralyzing, fear is destructive, especially in a place that's supposed to be all about freedom of ideas.

[311] And, I mean, I don't know if you have anything any thoughts to say on this whole idea of cancel culture where people, a lot of people use it, has become political, so stay maybe outside of the world to politics.

[312] Is this, do you have thoughts about it?

[313] Does it bother you that people are sort of put in this bin?

[314] labeled a something, and then thereby you can ignore everything they say.

[315] I mean, Stephen Pinker, there's a lot of Harvard folks that are fighting against these set of ideas, but do you have thoughts?

[316] I think that we as a culture are way, way, way too quick to cancel people, and it's become almost reflexive now.

[317] you know, someone says something or makes an offhand comment, even a mistake, there's a move to simply cancel folks.

[318] So I think that this quote unquote cancel culture has really gotten out of control at this point, it's forcing people to be robotic in many ways.

[319] No offense.

[320] The robots.

[321] I was going to say, now I know I'm venturing into your intellectual domain.

[322] For future robots watching this, no offense.

[323] And there are men, it's discouraging a lot of good people from getting into public life in any sort of way.

[324] Because, you know, who needs the stress of it?

[325] And in some sense, you're an inspiration that you're able to withstand the pressure of the masses.

[326] but it is, it's a sad aspect of human nature that we kind of get into these crowds and we start chanting and it's fun for some reason and then you forget yourself and then you sort of wake up the next day, not having anticipated the consequences of all the chanting.

[327] And we get ourselves in trouble in that.

[328] I mean, there's some responsibility on social networks and the mechanisms by which they make it more frictionless to do the chanting, to do the canceling, to do the outrage and all that kind of stuff.

[329] So I actually on the technology side have a hope that that's fixable.

[330] 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're trying to figure that out.

[331] Same with the university.

[332] This mistake by Harvard showed that we need to reinvent what the university is.

[333] 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 a long time.

[334] You know, the really interesting thing about Harvey Weinstein and you choosing these exceptionally difficult cases is also thinking about what it means to defend evil people, what it means to defend these.

[335] we could say unpopular, and you might push back against the word evil, but bad people in society.

[336] 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?

[337] And also, is there somebody too evil for the law to defend?

[338] 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.

[339] So there are many who will say, yeah, that just doesn't do any work for me. But the category evil, in fact, does intellectual work for me. And I understand it as something that exists.

[340] Is it genetic or is it the circumstance?

[341] Like, what kind of work does it do for you intellectually?

[342] I think that it's highly 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.

[343] Now, there are studies and whatnot that show that certain, brain abnormalities and so forth are more prevalent in, say, serial killer.

[344] So there may be a biological predisposition to certain forms of conduct, but I don't have the biological evidence to make a statement that someone is born evil.

[345] And, you know, I'm not a determinist thinker in that way.

[346] so you come out the womb, evil, and you're destined to be that way, to the extent there may be biological determinants, there still require some nurture as well.

[347] But do you still put a responsibility on the individual?

[348] Of course, yeah.

[349] We all make choices.

[350] And so some responsibility on the individual, indeed.

[351] We live in a culture, unfortunately, where a lot of people have a constellation of bad choices in front of them.

[352] And that makes me very sad.

[353] That people grow up with predominantly bad choices in front of them.

[354] And that's unfair.

[355] And that's on all of us.

[356] But yes, I do think we make choices.

[357] Wow, that's so powerful.

[358] The constellation of bad choices.

[359] 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.

[360] You know, life is a kind of optimization problem, sorry to take us into math, over a set of trajectories under imperfect information.

[361] So you're going to do a lot of stupid shit to put it in technical terms, but the fraction of the trajectories that take you into bad places or into good places is really important.

[362] And that's ultimately what we're talking about.

[363] And evil might be just a little bit of a predisposition biologically, but the rest is just trajectories that you can take.

[364] I've been studying Hitler a lot recently.

[365] I've been reading probably way too much.

[366] And it's interesting to think about all the possible trajectories that could have avoided this particular individual developing, the hate that he did, the following that he did, the actual final, there's a few turns in him psychologically where he went from being a leader that just wants to conquer to somebody who allowed him.

[367] his anger and emotion to take over to where he started making mistakes for uh in terms of militarily speaking but also started doing you know evil things and all the possible trajectories that could have avoided that are fascinating including he wasn't that bad at painting at drawing right that's true from the very beginning and uh and his time in vienna there's all 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.

[368] But that goes to the second question on the side of evil.

[369] Do you think, and Hitler's often brought up as like an example of somebody who is like the epitome of evil.

[370] Do you think you would, if you got that same phone call after World War II, and Hitler survived, during war, the trial for war crimes, would you take the case defending Adolf Hitler?

[371] If you don't want to answer that one, is there a line to draw for evil for who do not to defend?

[372] No, I think everyone, I'll do the second one first.

[373] Everyone has a right to a defense if you're charged criminally in the United States of America.

[374] So, no, I do not think that there's someone so evil that they do not deserve a defense.

[375] sense.

[376] Process matters.

[377] Process helps us get to results more accurately than we would otherwise.

[378] 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.

[379] It's vitally important to the health of our criminal justice system for that to happen.

[380] So yes, everybody, Hitler included, were he charged in the United States for a crime that occurred in the United States.

[381] Yes.

[382] Whether I would do it, if I were a public defender and assigned the case, yes, I started my career as a public defender.

[383] I represent anyone who was assigned to me. I think that is our, our duty.

[384] 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. prime.

[385] But I get the broader point and don't want to bog down in technicalities.

[386] I'd likely pass right now as I see it unless.

[387] it was a case where nobody else would would represent him, you know, then I would, I would think that I have some sort of duty and obligation to, to do it.

[388] But yes, everyone absolutely deserves a right to competent counsel.

[389] That is a beautiful idea.

[390] It's difficult to think about it in the face of public pressure.

[391] It's just, I mean, it's kind of terrifying to watch the masses during this past year of 2020 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.

[392] 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.

[393] It does not operate to the best of its ideals.

[394] It operates unfairly.

[395] Can we go to the big picture of the criminal justice system?

[396] What do you, given the ideal, works about our criminal justice system and what is broken?

[397] Well, there's a lot broken right now.

[398] and I usually focus on that, but in truth, a lot works about our criminal justice system.

[399] So there's an old joke, and it's funny, but it carries a lot of truth to it.

[400] And the joke is that in the United States, we have the worst criminal justice system in the world except for every place else.

[401] And yes, we certainly have a number of problems and a lot of problems based on race and class and economic station.

[402] But we have a process that privileges a liberty.

[403] And that's a good feature of the criminal justice system.

[404] So here's how it works.

[405] 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, 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.

[406] And it's that better 10 guilty go free than one innocent person convicted.

[407] That is an expression of the way in which we understand liberty to operate in our collective consciousness.

[408] would rather a bunch of guilty people go free than to impact the liberty interests of any individual person.

[409] So that's a guiding principle in our criminal justice system.

[410] Liberty.

[411] So we set a process that makes it difficult to convict people.

[412] We have rules of procedure that are cumbersome and that slow down the process and that exclude otherwise reliable evidence.

[413] And this is all because we place a value on liberty.

[414] And I think these are good things.

[415] And it says a lot about our criminal justice system.

[416] 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 arrests to charging decisions to sentencing, people of color are disproportionately impacted on all sorts of registers.

[417] One example, and it's a popular one, that although there appears to be no distinction, distinguishable difference between drug use by whites and blacks in the country.

[418] Blacks, though only 12 % of the population represent 40 % of the drug charges in the country.

[419] There's some disequities along race and class in the criminal justice system that we really have to have to fix.

[420] and they've grown to more than bugs in the system and have become features, unfortunately, of our system.

[421] Oh, to make it more efficient to make judgments, so the racism makes it more efficient.

[422] It efficiently moves people from society to the streets, and a lot of innocent people get caught up in that.

[423] Well, let me ask in terms of the innocence.

[424] so you've gotten a lot of people who are innocent uh you defund uh i guess revealed their innocence demonstrated their innocence what's that process like what's it like emotionally psychologically what's it like legally to fight the system in uh through the process of revealing sort of uh the innocence of a human being yeah emotionally and psychologically it can be be taxing.

[425] I follow a model of what's called empathic representation, and that is I get to know my clients and their family.

[426] I get to know their strivings, their aspirations, their fears, their sorrows.

[427] So that certainly sometimes can do psychic injury on one.

[428] If you, you know, you get really invested and really sad or happy.

[429] It does become emotionally taxing.

[430] But the idea of someone sitting in jail for 20 years, completely innocent of a crime, 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?

[431] It's got to be the most incredible thing in the world.

[432] But the people who do it and the people who make it and come out on the other side as productive citizens are 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 humanity is there and it's immutable.

[433] And they are not bitter, which is amazing.

[434] I would tend to think that I'm not that good of a person.

[435] I would be bitter for every day of 20 years if I were in jail for something.

[436] But, you know, but people tell me that, you know, that they can't survive, like that one cannot survive like that.

[437] And you have to come to terms with it.

[438] 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.

[439] without bitterness.

[440] And it's a beautiful thing to see.

[441] Do you think it's possible to eradicate racism from the judicial system?

[442] I do.

[443] I think that race insinuates itself in all aspects of our lives and the judicial system is not immune from that.

[444] 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.

[445] I think we've got a lot of work to do, and I think it'll be a while, but I think it's doable.

[446] I mean, you know, the country, so historians will look back 300 years from now and take note of the incredible journey of diasporic Africans in the, in the, in the, the U .S., an incredible journey from, you know, slavery to the heights of politics and business and judiciary, the academy, and so forth, and not a lot of time.

[447] And actually, not a lot of time.

[448] And if we can have that sort of movement historically, let's think about what the next 175 years will look like.

[449] 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 see a better world.

[450] And if we see a better world, we'll see a better judicial system.

[451] So I think it's kind of fascinating if you look throughout history and race is just part of that is we create the other and treat the other with disdain through the legal system but just through human nature.

[452] I tend to believe we mentioned offline that I work with robots.

[453] It sounds absurd to say, especially to you, especially because we're talking about racism and it's so prevalent today.

[454] I do believe that there will be almost like a civil rights movement for robots because I think there's a huge value to society of having artificial intelligence systems that interact with humans and are human -like and the more they become human -like they will start they will start to ask very fundamentally human questions about freedom, about suffering, about justice.

[455] And 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?

[456] Again, forming another other group, which is robots.

[457] And I'm sure there could be along that path different versions of other that we form.

[458] 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.

[459] But it does feel like we always create, as we make progress, create new other groups.

[460] And of course, 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 centuries from now look back at the kind of things we're doing to animals 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.

[461] But I'm sure most civil rights movements throughout history seem ridiculous at first.

[462] Well, it's interesting.

[463] Sort of outside of my intellectual bailiwick robots, as I understand the development of artificial intelligence, though, the aspect that still is missing is this notion of consciousness and that it's consciousness.

[464] That is the thing that will move if it were to exist.

[465] And I'm not saying that it can or will.

[466] But if it were to exist, would move robots from machines to something different, something that experience, something that experienced the world in a way analogous to how we experience it.

[467] And also as I understand the science, there's a, unlike what you see on television that we're not there yet in terms of this notion of the machines having a consciousness.

[468] Or a great general intelligence, all those kinds of things.

[469] Yeah, yeah.

[470] A huge amount of progress has been made, and it's fascinating to watch.

[471] So I'm on both minds.

[472] As a person who's 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.

[473] to use terminology carefully here, we keep discriminating against the intelligence of artificial systems.

[474] The smarter they get, the more ways we find to dismiss their intelligence.

[475] So this has just been going on throughout.

[476] It's almost as if we're threatened in the most primitive human way, animalistic way.

[477] We're threatened by the power of other creatures.

[478] and we want a lesson, dismiss them.

[479] 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.

[480] 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.

[481] In terms of just everything we as humans use to determine the ability of somebody to be their own entity, the one that loves, one that fears, one that hopes, one that can suffer.

[482] If a robot in the dumbest of ways is able to display that, we, it changed, it starts changing things very quickly.

[483] I'm not sure what it is, but it does seem that there's a huge component to consciousness that is a social creation.

[484] Like we together create our consciousness.

[485] Like we believe our common humanity together.

[486] Alone, we wouldn't be aware of our humanity.

[487] And the law, as it protects our freedoms, seems to be a construct of this.

[488] 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, the men part might have to expand in ways that we are not yet anticipating.

[489] It's very interesting.

[490] I mean, my favorite, the fundamental thing I love about artificial intelligence does it get smarter and smarter.

[491] It challenges to think of what is right, the questions of justice, questions of freedom.

[492] It basically challenges us to understand, our own mind to understand what 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 and all the documents we write so even if we don't give rights to artificial intelligence systems we may be able to construct more fair legal systems to protect us humans well I mean interesting ontological question between the performance of consciousness and actual consciousness to the extent that it's that actual consciousness is anything beyond some contingent reality.

[493] But you've posed a number of interesting philosophical questions.

[494] And then there's also, it strikes me that philosophers of religion would pose another set of questions as well when you deal with issues of structure versus soul, body versus soul.

[495] And it would be a, it will be a complicated mix, and I suspect I'll be dust by the time those questions get worked out.

[496] And so, yeah, the soul is a fun one.

[497] There's no soul.

[498] I'm not sure maybe you can correct me, but there's very few discussions.

[499] of soul in our legal system, right?

[500] Right, correct.

[501] But there is a discussion about what constitutes a human being.

[502] And, I mean, you gestured at the notion of the potential of the law, widening the domain of human being.

[503] So in that sense, right, you know, people are very angry because they can't get sort of pain and suffering damages if someone negligently kills a pet because a pet is not a human being.

[504] And people say, well, I love my pet, but the law sees a pet as chattel as property like this water bottle.

[505] So the current legal definitions trade on a definition of humanity that may not be worked out in any sophisticated way, but certainly there's a broad and shared understanding of what it means.

[506] So it probably doesn't explicitly contain a definition of something like soul, but 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.

[507] So if we can dive into, we've already been done.

[508] doing it, but if we can dive into more difficult territory.

[509] So 2020 had the tragic case of George Floyd.

[510] When you reflect on the protests, on the racial tensions over the death of George Floyd, how do you make sense of it all?

[511] What do you take away from these events?

[512] The George Floyd moment occurred 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.

[513] And this was a sort of the straw that broke the camels back after a number of these sorts of cell phone videos surfaced.

[514] people were fed up.

[515] There was unimpeachable evidence of a form of mistreatment, whether it constitutes murder or manslaughter, the trial is going on now, and jurors will figure that out.

[516] But there was widespread appreciation that a fellow human being was mistreated, that we were mistreated, that we were.

[517] we were just talking about humanity, that there was not a sufficient recognition of this person's humanity.

[518] The common humanity of this person.

[519] The common humanity of this person, well said.

[520] And people were fed up.

[521] So we were already in a COVID space where we were exercising care for one another.

[522] And there was just an explosion, the likes of which this country hasn't seen since the, you know, civil rights.

[523] protests of the 1950s and 1960s, and people simply said, enough, enough, enough, this has to stop.

[524] We cannot treat fellow citizens in this way, and we can't do it with impunity.

[525] And the young people say, we're just, we're not going to stand for it anymore, and they took to the streets.

[526] but with the millions of people protesting, there is nevertheless taking us back to the most difficult of trials.

[527] You have the trial like you mentioned that's going on now of Derek Schoen of one of the police officers involved.

[528] What are your thoughts?

[529] What are your predictions on this trial where the law, the process of the law is trying to proceed in the fact.

[530] face of so much racial tension.

[531] Yeah, it's going to be an interesting trial.

[532] I've been keeping an eye on it there in jury selection now today as we're talking.

[533] So a lot's going to depend on what sort of jury gets selected.

[534] Yeah, how the, sorry to take, sorry to interrupt, but, so 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.

[535] So, so, you get to watch some of this stuff.

[536] And the other part is the jury selection.

[537] Again, I'm very inexperienced, but it seems like selecting in, what is it, unbiased jury is really difficult for this trial.

[538] It almost like, I don't know, me as a listener, like listening to people that are trying to talk their way into the jury kind of thing, 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 yeah so a couple things so first yes it is televised and it will be televised, as they say, gavel to gavel.

[539] So the entire trial, so the whole thing is going to be televised.

[540] So people are getting a view of how laborious jury selection can be.

[541] I think as of yesterday, they had picked six jurors, and it's taken a week.

[542] They have to get to 14.

[543] So they've got, you know, probably another week or more to do.

[544] I've been in jury trials where it took a month to choose a jury.

[545] So that's the most important part.

[546] You have to, you have to choose the right sort of jury.

[547] So unbiased in the criminal justice system has a particular meaning.

[548] It means that let me tell you what it doesn't mean.

[549] It doesn't mean that a person is not aware of the case.

[550] It also does not mean that a person has informed an opinion about the case.

[551] Those are two popular misconceptions.

[552] 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.

[553] So if a person can do that, then they're considered unbiased.

[554] So, you know, as a longtime 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 in the world do they do?

[555] So, or are they lying to me?

[556] I mean, how can you not have heard about this case?

[557] So they may bring other problems.

[558] So, you know, I don't mind so much people who've heard about the case or folks who've formed initial opinions.

[559] But 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.

[560] 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.

[561] 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.

[562] So they're, you know, they're just, they pretend to be the, the most neutral, unbiased person in the world, what the law calls the reasonable person.

[563] We have in law the reasonable person standard.

[564] 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.

[565] They're the most boring, neutral, not interesting sort of person in the world.

[566] And so a lot of, of jurors engage in the performative act of presenting themselves as the most sort of even -killed, rational, reasonable person because they really want to get on the jury.

[567] Yeah, there's an interesting question.

[568] I apologize.

[569] I haven't watched a lot because it is very long.

[570] I watched it.

[571] You know, there's certain questions you've asked in the jury, you ask in the jury selection.

[572] I remember, I think, one jumped out at me, which is something like, does the fact that this person is a police officer make you feel any kind of way about them?

[573] So trying to get at that, you know, I don't know what that is.

[574] I guess that's bias.

[575] And it's such a difficult question to ask, like I ask myself for that question.

[576] Like how much, you know, we all kind of want to pretend that we're not racist and we don't judge.

[577] We don't have, we're like these, we're the reasonable human, but, you know, legitimately asking yourself, like, are you, what are the prejudgments you have in your mind?

[578] Is that even impossible for a human being?

[579] Like, when you look at yourself in the mirror and think about it, is it possible to actually answer that?

[580] Yeah, I, look, I do not believe that people can be completely unbiased.

[581] We all have bad.

[582] 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 when a bias is working and actively try to do the right thing.

[583] That's the best we can ask.

[584] So if a juror says, yeah, you know, look, I grew up in a place where I tend to believe what police officers say.

[585] That's just how I go.

[586] grew up.

[587] But if the judge is telling me that I have to listen to every witness equally, then I'll, you know, I'll do my best.

[588] And I won't weigh that testimony any higher than I would, any other testimony.

[589] If you have someone to answer a question like that, that sounds more sincere to me, sounds more honest.

[590] And if you want a person, you want a person to try to do that.

[591] And then in closing arguments, right, as the lawyer, right, 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.

[592] That's why we chose you.

[593] And I'm confident that you're going to do that here.

[594] 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.

[595] And I trust that you're going to do that and that you're going to look at witness number three, you know, John Smith.

[596] You're going to look at John Smith.

[597] John Smith has a different recollection.

[598] Yes.

[599] And you're duty bound.

[600] Duty bound to look at that testimony and this person's credibility, you know, the same degree as that other witness, right?

[601] And now what you have is just that he said, she said matter, and this is a criminal case, that has to be reasonable doubt.

[602] Right.

[603] So, you know, so you, and really someone who's trying to do the right.

[604] thing, it's helpful.

[605] But no, you're not going to just find 14 people with no biases.

[606] That's absurd.

[607] 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're 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.

[608] Most introspective.

[609] Like, you're trying to basically ask people to be their best selves.

[610] And that's, and they, I guess a lot of people step up to that.

[611] That's why the system works.

[612] I'm very, I'm very pro jury.

[613] Juries, they get it right.

[614] It works.

[615] A lot of the time, most of the time.

[616] And they really work hard to do it.

[617] So, what do you think happens?

[618] 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.

[619] Do you think it's possible that Derek Shon does not get convicted of the, what is it, second -degree murder?

[620] How do you think about that?

[621] How do you think about the potential social impact of that?

[622] that the riots, the protests, the, either direction.

[623] Any words that are said, the tension here could be explosive, especially with the cameras.

[624] Yeah.

[625] So, yes, there's certainly a possibility that 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 some harm, whether he was grossly reckless in causing harm so much so that he disregarded a known risk of death or serious bodily injury.

[626] 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 there is not an intention, but it's depraved indifference.

[627] And what that means is that the jury doesn't have to find that he intended to do anything.

[628] Rather, they could find that he was just indifferent to a risk.

[629] As dark.

[630] Yeah, yeah I'm not sure what's worse Well, that's a good point But it's another basis For the jury to convict But look, you never know what What happens when you go to a jury trial So there could be an acquittal And if there is I imagine there would be Massive protests If he's convicted 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 -chalvin camp out there, ready to protest.

[631] Well, there could be a, is there also potential tensions that could arise from the sentencing?

[632] I don't know how that exactly works.

[633] Sort of not enough years kind of thing.

[634] Yeah, it could be.

[635] All that kind of stuff.

[636] I mean, it's a lot could happen.

[637] So it depends on what he's convicted of, you know, one count, I think, like up to 10 years, another counts up to 40 years.

[638] So it depends what he's convicted of.

[639] And yes, it depends on how much of the, how much time the judge gives him if he is convicted.

[640] There's a lot of space for people to be very angry.

[641] And so we will, we will see what happens.

[642] I just feel like with a judge and the lawyers, there's an opportunity to have really important long -lasting speeches.

[643] I don't know if they think of it that way.

[644] especially with the cameras, it feels like they have the capacity to heal or to divide.

[645] Do you ever think about that as a lawyer, as a legal mind, that your words aren't just about the case, but they'll reverberate through history potentially?

[646] That is certainly a possible consequence of things you say.

[647] I don't think that most lawyers think about that in the context of the case.

[648] Your role is much more narrow.

[649] You're the partisan advocate, as a defense lawyer, partisan advocate for that client.

[650] As a prosecutor, you're a minister of justice attempting to prosecute that particular case.

[651] 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 you know if the glove doesn't fit uh you must acquit it's going to be you know just in our lexicon for probably a long time now so so it it happens but that's not and it shouldn't be foremost on your mind right what do you make uh what do you make of the o j simpson trial do you have thoughts about it he's uh he's out and about on social media now is a public figure.

[652] Is there lessons to be drawn from that whole saga?

[653] Well, you know, that was an interesting case.

[654] I was a young public defender.

[655] I want to say in my first year as a public defender when that verdict came out.

[656] So that case was important in so many ways.

[657] One, it was the first DNA case, major DNA case.

[658] And there were significant lessons learned from that.

[659] One mistake that the prosecution made was.

[660] was that they didn't present the science in a way that a lay jury could understand it.

[661] And what Johnny Cochran did was he understood the science and was able to translate that into a vocabulary that he bet that jury understood.

[662] good.

[663] So Cochran was dismissive of a lot of DNA.

[664] They say, you know, he said something like, oh, you know, they say they found, you know, such and such amount of DNA.

[665] That's just like me, you know, wiping my finger against my nose and, and just that little bit of DNA.

[666] And that was effective because the prosecution hadn't done a good job of establishing that, yes, it's microscopic.

[667] You don't need that much.

[668] Yes, wipe.

[669] in your hand on your nose and touching something, you can transfer a lot of DNA, and that gives you good information.

[670] But, you know, it was the first time that the public generally, and that jury, maybe since high school science, it heard, you know, nucleotide.

[671] I mean, it was just all these terms getting thrown at them, but it was not weaved into a narrative.

[672] So Cochran taught us that no matter what type of case it is, no matter what science is involved, it's still about storytelling it's still about a narrative and he was and he was great at that at that at that at that narrative and was consistent with his narrative all the way out another lesson that was relearned it's 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.

[673] You know, you don't do things where you just don't know how it's going to turn out.

[674] It was way, way too risky.

[675] And then, and I think that's what acquitted him because that glove, the glove just wouldn't fit.

[676] And he got to do this and ham in front of the camera and all of that.

[677] And it was big.

[678] Do you think about, do you think about representation as a storytelling, like you, yourself and your role?

[679] Absolutely.

[680] Absolutely.

[681] We tell, stories.

[682] It is fundamental.

[683] We, since time and memorial, we have told stories to help us make sense of the world around us.

[684] So as a scientist, you tell a different type of story, but we as a public have told stories from time and memorial to help us make sense of the physical and the natural world.

[685] And we are still a a species that is moved by storytelling.

[686] So that's first and last in trial work.

[687] You have to tell a good story.

[688] 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.

[689] This case is about.

[690] And then you fill in the blank.

[691] And, you know, that's your narrative.

[692] That's the narrative you're going to, going to tell.

[693] And of course you can do the ultra dramatic.

[694] The glove doesn't fit kind of the climax and all those kinds of things.

[695] Yes, yes.

[696] But that's the best of narratives, the best of stories.

[697] Yes.

[698] Speaking of other really powerful stories that you were involved with is the Aaron Hernandez trial and the whole story, the whole legal case.

[699] Can you maybe overview the big picture story and legal case of Aaron Hernandez?

[700] Yeah.

[701] So Aaron, whom I miss a lot.

[702] So he was charged with a double murder in the case that I tried.

[703] And this was a unique case in one of those impossible cases, in part because Aaron had already been convicted of a murder.

[704] And so we had a client who was on trial for a double murder after having already been convicted of a separate murder.

[705] And we had a jury pool, just about all of whom knew that he had been convicted of a murder because he was a very popular football player in Boston, which is a big football town with the Patriots.

[706] So, you know, so everyone knew that he was a convicted murderer, and here we are defending in a double murder case.

[707] So that was the context.

[708] It was not a case in the sense that this murder had gone unsolved for a couple of years.

[709] And then a nightclub bouncer said something to a cop who was working at a club that Aaron Hernandez was somehow involved in that murder that happened in the theater district.

[710] That's a district where all the clubs are.

[711] in Boston and where the homicide occurred.

[712] And once the police heard Aaron Hernandez's name, then it was, you know, they went all out in order to do this.

[713] So they found a guy named Alexander Bradley, who was a very significant drug dealer in the sort of Connecticut area, very significant, very powerful.

[714] And he essentially, in exchange for a deal, pointed to Aaron, said, yeah, I was with Aaron, and Aaron was the murderer.

[715] So that's how the case came to court.

[716] Okay, so that says the context.

[717] What was your involvement in this case, like legally?

[718] intellectually, psychologically, when this particular second charge of murder?

[719] 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.

[720] It's a class where we teach students how to try cases.

[721] So Jose called me and said, hey, I got a call from Massachusetts, Aaron Hernandez.

[722] You want to go and talk to him with me?

[723] So I said, sure.

[724] So we went up to the prison and met Aaron and spoke with him for two or three hours at first time.

[725] And before we left, he said he wanted to retain us.

[726] He wanted to work with us, and that started the representation.

[727] What was he like?

[728] What, in that time, was he worn down by the whole process?

[729] Was there still a light in that?

[730] He was not.

[731] He had, I mean, more than just a light, he was luminous almost.

[732] He had a radiant million -dollar smile whenever you walked in.

[733] My first impression I distinctly remember was, wow, this is what a professional athlete looks like.

[734] I mean, he walked in and he's just, just bigger and more fit than, you know, than anyone, you know, anywhere.

[735] And it's like, wow, this.

[736] And, you know, when you saw him on television, he looked kind of little.

[737] And I was like, so I remember thinking, well, what, what do those other guys look like in person?

[738] And he's extraordinarily polite, young.

[739] I was surprised by how young he was.

[740] Both in mind and body.

[741] Chronologically, I was, you know, thinking.

[742] He was in his, you know, in his early 20s, I believe.

[743] But there seemed to be like an innocence film in terms of just the way he saw the world.

[744] I think that's right.

[745] They picked that out from the documentary.

[746] He's just taking that in.

[747] I think that's right.

[748] Yeah.

[749] Yeah.

[750] So there is a Netflix documentary.

[751] titled Killer Inside the Mind of Aaron Hernandez.

[752] What are your thoughts on this documentary?

[753] I don't know if you've gotten a chance to see.

[754] I have not seen it.

[755] I did not participate in it.

[756] I know I was in it because of there was news footage.

[757] But I did not participate in it.

[758] I had not talked to Aaron about press or anything before he died.

[759] My strong view is that the attorney cloud privilege survives death.

[760] And so I was not inclined to talk about anything that Aaron and I talked about.

[761] So I just didn't participate and have never watched it.

[762] Not even watch, huh?

[763] So does that apply to most of your work?

[764] Do you try to stay away from the way the press perceived stuff?

[765] During, yes, I try to stay away from it.

[766] I will view it afterwards.

[767] I just hadn't gotten around watching Aaron because it's kind of sad.

[768] So I just haven't watched it.

[769] But I definitely stay away from the press during trial.

[770] And, you know, there are some lawyers who watch it religiously to see what's going on.

[771] But, you know, I'm confident in my years of training and so forth that I can actively sense what's going on in the courtroom and that I really don't need advice from Joe 476 at Gmail.

[772] you know, some random guy on the internet telling me how to try cases.

[773] So it's just, to me, it's just confusing and I just keep it out of my mind.

[774] And even if you think you can ignore it, just reading it will have a little bit of an effect on your mind.

[775] I think that's right.

[776] Over time, I might accumulate.

[777] So the documentary, but in general, it 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 sort of fear given the society of what his father would think of what others around him sort of especially in a sport culture and football and so on so 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 of the sexuality had a role to play in much of his difficulties well I'm not going to talk about my interactions with them and anything I derive from from that but you know what I will say is is that a story broke on the, on the radio at some point during the trial that Aaron had been in the same -sex relationship with someone and some local sportscasters, local Boston sportscasters, would be really mushroomed the story.

[778] So he and everyone was aware of it.

[779] You also may know from the court record that the prosecutors floated a specious theory for a minute, but then backed off of it that, you know, that Aaron was, that there was some sort of, I guess, gay rage at work with them.

[780] And that might be a cause, a motive for the killing.

[781] And luckily, they really backed off of that.

[782] That was quite an offensive claim and theory.

[783] So, but to answer your question more directly, I mean, I have no idea why he killed himself.

[784] It was a surprise and a shock.

[785] I was scheduled to go see him like a couple days after it happened.

[786] I mean, he was anxious for.

[787] Jose and I to come in and do the appeal from the murder, which he was convicted for.

[788] He wanted us to take over that appeal.

[789] He was talking about going back to football.

[790] I mean, he said, well, you talk about this.

[791] Earlier you talked about the sort of innocent aspect of him.

[792] He said, you know, well, Ron, maybe not the Patriots, but, you know, I want to get back in the league.

[793] And I was like, you know, Aaron, that's going to be tough, man. But he really, you know, he really believed it.

[794] And then, you know, for a few days later that to happen, it was just, it was a real shock to me. Like when you look back at that, at his story, does it make you sad?

[795] Very, very.

[796] I thought, so one, I believe he absolutely did not commit the crimes that we could.

[797] acquitted him on.

[798] I think that was the right answer for that.

[799] I don't know enough about Bradley the first case, I'm sorry, to make an opinion on.

[800] But in our case, you know, it was just, he had the misfortune.

[801] A famous name.

[802] And the police department just really just really got on him there.

[803] Yes, I miss them a lot.

[804] It was very, very sad, surprising.

[805] Yeah, and I mean, just on the human side, of course, we don't know the full story, but just everything that led up to suicide, everything led up to an incredible professional football player, you know, that whole story.

[806] It was remarkably talented athlete, remarkably talented athlete.

[807] And it has to do with all the possible trajectories, right, that we can take through life.

[808] as we're talking about before.

[809] And some of them lead to suicide, sadly enough.

[810] And it's always tragic when you have somebody with great potential result in the things that happen.

[811] People love it when I ask about books.

[812] I don't know whether technical, like legal or fiction, nonfiction books throughout your life.

[813] 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.

[814] Oh, wow.

[815] Yeah.

[816] So I'll give you a couple.

[817] So one is contingency, irony, and solidarity by Richard Wardy.

[818] He's passed away now, but was a philosopher at some of our major institutions.

[819] Princeton, Harvard, Stanford, contingency, irony, and solidarity, at least that's a book that really helped me work through a series of thoughts.

[820] So it stands for the proposition that our most deeply held beliefs are contingent, that there's nothing beyond history or prior to socialization that's.

[821] definatory of the human being.

[822] That's Rory.

[823] And he says that our most deeply held beliefs are received wisdom and highly contingent along a number of registers.

[824] 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 and accurate.

[825] And it helps you to work.

[826] And he through what could be an intellectual tension, other words.

[827] So you don't delve into, one doesn't delve into relativism.

[828] Oh, everything is okay.

[829] But it gives you a vocabulary to think about how to negotiate these realities.

[830] Do you share this tension?

[831] I mean, there is a real tension.

[832] It seems like even like the law, the legal system is all just the construct.

[833] of our human ideas, and yet it seems to be, almost feels fundamental to what a just society is.

[834] Yeah, I definitely share the tension and love his vocabulary in the way he's helped me resolve the tension.

[835] So, right, I mean, yeah, so like, you know, infanticide, for example, perhaps it's, socially contingent, perhaps, it's received wisdom, perhaps it's anthropological, you know, we need to propagate the species, and I still think it's wrong.

[836] And Rorty has helped me develop a category to say that, no, I can't provide any, in Rorty's words, non -circular theoretical backup for this proposition.

[837] At some point, it's going to run me in a circularity problem but that's okay i i i hold this nonetheless and full recognition of its contingency but what it does is 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 uh i think is is is the sort of intellectual i strive to be and if i have a a a 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 Rorty does.

[838] 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.

[839] And I just think it's a beautiful concept.

[840] But he He talks about this imaginative ability, and it's this active process.

[841] So, I mean, so that's a book that's done a lot of work for me over the years.

[842] Souls of Black Folk by W .B. Du Bois was absolutely pivotal in my intellectual development.

[843] One of the premier set of essays in the Western literary tradition.

[844] 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.

[845] It's just a, it's a beautiful text.

[846] And I go to it yearly.

[847] 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 is, you know, it's universal, but it's also very much a journey of the United States.

[848] It was kind of a foreign thing that I stepped into.

[849] Is that something you would recommend somebody like me to read or is there other things about race that are good to connect?

[850] Because my flavor of suffering and just, I'm a Jew as well.

[851] My flavor has to do the World War II and the studies of that, you know, all the injustice is there.

[852] So I'm now stepping into a new set of injustices and trying to learn the landscape.

[853] I would say anyone is a better person for having read Du Bois.

[854] It's just he's just a remarkable writer and thinker.

[855] And to the extent you're interested in learning another history, he does it in a way.

[856] that is quite sophisticated.

[857] So it's interesting.

[858] I was going to give you three books.

[859] I noted the accent when I met you, but I didn't know exactly where you're from.

[860] But the other book I was going to say is Dostoevsky's Crime and Punishment.

[861] 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.

[862] And, you know, I love others of this stuff, too, the Brothers Care, Masov, and so forth.

[863] But crime and punishment, I first read in high school as a junior or senior.

[864] And it is a deep and profound meditation on both the meaning and the measure of our lives.

[865] And Dostoevsky, obviously in conversation with other thinkers, really gets at the crux of a fundamental philosophical problem.

[866] What does it mean to be a human being?

[867] And for that, crime and punishment captured me as a teenager, and that's another text that I return to often.

[868] We've talked about young people a little bit at the beginning of our conversation.

[869] 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?

[870] Yeah, sure.

[871] I'll share some advice.

[872] It actually picks up on a question we talked about earlier in the academy in schools.

[873] 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.

[874] And that's it.

[875] And it's hard for people.

[876] I mean, you mentioned this earlier, to face really difficult task to, and particularly in these 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.

[877] wait 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 uh gentlemen or gentlewoman's bee 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 And even outside of the academy, I mean, come face to face with your fears and keep going and keep going in life.

[878] And you're going to be the better person, the better human being.

[879] 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.

[880] Yes.

[881] Like fear kind of shows the way a little bit.

[882] Not always.

[883] You might not want to go into the cage with a lion, but it's, maybe you should.

[884] Maybe.

[885] Let me ask sort of a darker question, because we're talking about Dostoevsky.

[886] We might as well.

[887] Do you, do you, and connected to the freeing innocent people, do you think about mortality?

[888] Do you think about your own death?

[889] Are you afraid of death?

[890] I'm not afraid of death.

[891] 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.

[892] 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 to realize, wait a minute, I'm actually on the back nine now.

[893] So, yeah, my mind moves to it from time to time.

[894] I don't dwell on it.

[895] I'm not afraid of it.

[896] My own personal religious commitments, I'm Christian, and my religious commitments buoy me that death, and I believe this, death is not the end, so I'm not afraid of it.

[897] Now, this is not to say that I want to rush to the afterlife, I'm good right here for a long time.

[898] I hope I've got, you know, 30, 35, 40 more years to go.

[899] But no, I don't really, I don't fear death.

[900] We're finite creatures.

[901] We're all going to die.

[902] Well, the mystery of it, you know, for somebody, at least for me, we human beings want to figure everything out.

[903] whatever the afterlife is there's still a mystery to it that that uncertainty it can be terrifying if you ponder it but maybe what you're saying is you haven't pondered it too deeply so far and it's worked out pretty good it's worked out yeah no no complaints so you said again the steyevsky kind of was exceptionally good at getting to the core or what it means to be human.

[904] Do you think about the why of why we're here, the meaning of this whole existence?

[905] Yeah, no, I do.

[906] I think, and I actually think that's the purpose of an education.

[907] What does it mean to be a human being?

[908] And in one way or another, we set out to answer those questions, and we do it in a different way.

[909] I mean, some may look to philosophy to answer these questions.

[910] Why is it in one's personal interest to do good, to do justice?

[911] Some may look at it through the economist's lens.

[912] Some may look at it through the microscope in the laboratory that the phenomenal world is the meaning of life.

[913] 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.

[914] But that's the purpose of an education.

[915] It's to sort of work through these issues.

[916] What does it mean to be a, what does it mean to be a human being?

[917] And I think it's a fascinating journey.

[918] I think it's a lifelong endeavor to figure out what is the thing, that nugget that makes us human.

[919] Do you still see yourself as a student?

[920] Of course.

[921] Yes.

[922] I mean, that's the best part about going into, into university teaching, you're a lifelong student.

[923] I'm always learning.

[924] I learn from my students and with my students and my colleagues, and you continue to read and learn and modify opinions.

[925] And I think it's just a wonderful thing.

[926] Well, Ron, I'm so glad that somebody like you is carrying the fire of what is the best of Harvard.

[927] So it's a huge honor that you would spend so much time, waste so much of your valuable time with me. I really appreciate that conversation.

[928] I think a lot of people love it.

[929] Thank you so much for talking today.

[930] Thank you.

[931] Thanks for listening to this conversation with Ronald Sullivan.

[932] And thank you to Brooklyn and Sheets, Wine Access Online Wine Store, Monk Pack, Low Carp Snacks, and Blinkist app that summarizes books.

[933] Click their links to support this podcast.

[934] And now let me leave you with some words from Nelson Mandela.

[935] When a man is denied the right to live the life he believes in, he has no choice but to become an outlaw.

[936] Thank you for listening and hope to see you next time.