Ronald Sullivan: The Ideal of Justice in the Face of Controversy and Evil
嘉宾：Ronald Sullivan
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§01Transcript · 00:00–10:49
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 GNS6 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.
This decision met with criticism
from Harvard University students,
including an online petition by students
seeking his removal as faculty dean of Winthrop House.
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
Ronald 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.
This conversation is brought to you
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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.
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.
This is the Lex Friedman 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, 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.
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.
He wanted to meet me and chat with me
about representing him.
I said yes, and one thing led to another.
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, I decided to take the case.
This would have been back in January of 2019, I believe.
So the sort of cases, 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 this was, fit the bill, it was quite challenging
in the sense that everyone had pre-drugged the case.
When I say everyone, I just mean the general sentiment
and the public had the case prejudged,
even though the specific allegations did not regard
any of the people in the New Yorker.
That's the New Yorker article that sort of exposed
everything that was going on, allegedly, with Harvey.
So I decided to take the case and I did.
- Is there a philosophy behind you taking on
these very difficult cases?
Like, is it a set of principles?
Is it just your love of the law?
Or is there like set of principles
why you take on the cases?
- Yeah, I do.
I like to take on hard cases and I like to take on the cases
that are with unpopular defendants, unpopular clients.
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 because 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
and the last, the unpopular client,
then that's the camel's nose under the tent.
If we let the camel's nose under the tent,
the entire tent is gonna 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.
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 test it.
So, for example, there was a young man many, many years ago
named Ernesto Miranda.
By all accounts, he was not a likable guy.
He was a three-time knife thief and not a likable guy.
But lawyers stepped up and took his case.
And because of that, we now have the Miranda warnings.
You have the right to remain silent,
those warnings that officers are forced to give to people.
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,
most of whom do not experience the criminal justice system
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.
- From a psychological perspective, just you as a human,
is there fear, is there stress from all the pressure?
'Cause 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
the set of laws that this country is built on.
- No, it doesn't stress me out particularly.
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've gotten over 6,000 people out of prison
who've been wrongfully incarcerated
and a subset of those people have been convicted
and there are people who've 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.
And so, look, I do the work that I do.
I'm proud of the work that I do.
And in that sense, I'm sort of a part-time Taoist.
The expression reversal was the movement of the Tao.
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.
- So one of the hardest cases of recent history
would be the Harvey Weinstein in terms of popular opinion
or unpopular opinion.
So if you continue on that line,
where does that story take you of taking on this case?
- Yeah, so I took on the case
and then there was a few students at the college.
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 law school is 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.
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 too.
- These are undergraduate students.
So I was responsible for one of the houses
as its faculty dean.
So it's an administrative appointment at the college
and some students who clearly didn't like Harvey Weinstein
began to protest about the representation
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.
Frankly, it's an embarrassment.
We expect students to do what students do
and I've encouraged 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 science,
Claudine Gay, absolutely craven and cowardly.
The dean of the college, same thing,
Rakesh Khurana, craven and cowardly.
They capitulated to the loudest voice in the room
and ran around afraid of 19-year-olds.
Oh, my 19-year-olds are upset.
I need to do something.
And it appeared to me that they so,
§02Transcript · 10:53–21:54
so desired 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 Harvard. - Teaching moment, yeah.
- Very important teaching moment.
- So they forced you to step down
from that faculty dean position at the house.
- I would push back on the description a little bit.
So I don't write the references
to the op-ed I did in "The New York Times."
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 refuse to step down.
Harvard declined to renew my contract.
And I made it clear that I was not going to resign
as a matter of principle and force them
to do the cowardly act that they, in fact, did.
- And you know, the worst thing about this,
they did the college, Dean Gay and Dean Karana,
commissioned this survey.
They've never done this before, survey from the students.
You know, how do you feel at Winthrop House?
And the funny thing about the survey is
they never released the results.
Why did they never release 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.
Most of the students were fine.
It was the loudest voice in the room.
So they never released it.
And you know, I challenge them to this day, release it.
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 silent.
Oh, we're not gonna release it.
The students demanded it, I demanded it,
and they wouldn't release it because I am,
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.
There was a group of students
that weaponized the term unsafe.
They said we felt unsafe and they banteed this term about,
but I'm, again, I'm confident that the majority of students
at Winthrop House said they felt completely fine
and felt safe and so forth.
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.
And then there was some minority who had a different view.
But, you know, lessons learned.
It was a wonderful opportunity at Winthrop.
I met some amazing students over my 10 years as master
and then faculty dean.
And I'm still in touch with a number of students,
some of whom are now my students 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 and accounts
and wagged their finger appropriately at Harvard.
Compared me to John Adams,
which I don't think is an apt comparison,
but it's always great to read something like that.
But at any rate, that was the Harvard,
the Harvard versus Harvey situation.
- 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's under fire a lot these days,
what bigger lessons do you take away?
Like how do we make Harvard great?
How do we make other universities, Yale, MIT great
in the face of such mistakes?
- Well, I think that we have moved into a model
where 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.
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.
They're there for a reason.
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 grownups in the room
have to be sufficiently responsible to take charge
and to direct the course of a student's education.
And 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 people
who are in the crosshairs of the criminal justice system.
But rather than having that conversation,
it's just this consumerization model.
Well, there's a lot of noise out here,
so we're gonna react in this sort of way.
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.
So to the degree that academic freedom
doesn't sit squarely at the center of the academic mission,
any school is gonna be in trouble.
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.
And that is gonna require a certain courage.
And hopefully in time,
and I'm confident that in time,
administrators are gonna begin to push back
on these current trends.
Harvard's been around for a long time,
it's been around for a long time for a reason.
And one of the reasons is that it understands itself
not to be static.
So I have every view
that Harvard is going to adapt
and get itself back on course
and be around another 400 years.
At least that's my hope.
- 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've seen this even at MIT,
it's not that they shouldn't have a voice.
They do seem to, I guess you have to experience it
and just observe it,
they have a strangely disproportionate power.
- Right, right.
- It's very interesting to basically,
I mean, you say, yes, there's great faculty and so on,
but it's not even just that the faculty is smart
or wise or whatever,
it's that they're just silenced.
So the terminology that you mentioned is weaponized
as sort of safe spaces
or that certain conversations make people feel unsafe.
What do you think about this kind of idea?
Is there some things that are unsafe
to talk about in the university setting?
Is there 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?
- 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.
And so the notion here is that there are forms
of psychological disquiet that impedes people
from experiencing the educational environment
to the greatest degree possible.
And that's the argument.
And assuming for a moment
that people do have these feelings of disquiet
at elite universities like MIT and like Harvard,
that's probably the safest space people are gonna be in
for their lives.
'Cause when they get out into the "real world",
they won't have the sorts of nets
that these schools provide,
safety nets that these schools provide.
So to the extent that research is descriptive
of a psychological feeling,
I think that the duty of the universities
are to challenge people.
Seems to me that it's a shame to go to a place like Harvard
or a place like MIT, Yale,
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 may continue to hold them,
but the point of an education
§03Transcript · 21:57–32:58
is to rigorously interrogate these fundamental assumptions
that have guided you thus far
and to do it fairly and civilly.
So to 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 lines 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 so to yell and cuss at somebody
and that sort of thing,
well, 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.
That ought to be the presumption.
Now, should
MIT, for example, give its imprimatur
to someone who is espousing the flat earth theory,
you know, the earth is flat, right?
So 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 gonna give you this platform
to tell our students that the earth is flat.
But, you know, a topic that's controversial,
but contestatory, that's what universities are for.
If you don't like the idea,
present better ideas and articulate them.
- And I think there needs to be a mechanism
outside of the space of ideas of humbling.
I've done martial arts for a long time.
I got my ass kicked a lot.
I think that's really important.
I mean, in the space of ideas,
I mean, even just in engineering,
just all the math classes.
My memories of math, which I love,
is kind of pain.
It's 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 accomplishing anything in this world
requires really hard work.
That's really humbling.
That puts you, 'cause I remember when I was 18 and 19,
and I thought I was gonna 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 mentally or physically abusing you,
be able to humble you.
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.
It 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.
And I mean, I don't know if you have anything,
any thoughts to say on this whole idea of cancel culture,
where people, I mean, a lot of people use it
as become political, so stay maybe outside of the world
to politics.
Is this, do you have thoughts about it?
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?
I mean, Steven Pinker, there's a lot of Harvard folks
that are fighting against these set of ideas,
but do you have thoughts?
- I think that we as a culture are way, way, way too quick
to cancel people.
And it's become almost reflexive now.
You know, someone says something or makes an offhand comment,
even a mistake, there's a move to simply cancel folks.
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.
- No offense to the robots.
- I was gonna say, now I know I'm venturing
into your intellectual domain.
- For future robots watching this, no offense.
- And there are men, it's discouraging a lot of good people
from getting into public life in any sort of way
because who needs the stress of it?
- Well, in some sense, you're an inspiration
that you're able to withstand the pressure,
the pressure of the masses.
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.
And we get ourselves in trouble in that.
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.
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're trying to figure that out.
Same with the university.
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 a long time.
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, we could say unpopular,
and you might push back against the word evil,
but bad people in society.
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 too evil for the law to defend?
- 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 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.
- Is it genetic or is it the circumstance?
What kind of work does it do for you intellectually?
- 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.
Now, there are studies and whatnot
that show that certain brain abnormalities and so forth
are more prevalent in say serial killers.
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.
And 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,
there still requires some nurture as well.
- But do you still put a responsibility on the individual?
- 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.
That the people grow up with predominantly bad choices
in front of them, and that's unfair.
And that's on all of us.
But yes, I do think we make choices.
- Wow, that's so powerful, the constellation of bad choices.
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.
Life is a kind of optimization problem.
Sorry to take this into math.
You can take over a set of trajectories
under imperfect information.
So you're gonna 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.
And that's ultimately what we're talking about.
And evil might be just a little bit
of a predisposition biologically,
but the rest is just trajectories that you can take.
I've been studying Hitler a lot recently.
§04Transcript · 33:01–44:29
I've been reading probably way too much.
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
and to somebody who allowed his anger
and emotion to take over
to where he started making mistakes
in terms of militarily speaking,
but also started doing evil things.
And all the possible trajectories
that could have avoided that are fascinating,
including he wasn't that bad at painting and drawing.
- Right, that's true.
That is true. - From the very beginning.
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.
But that goes to the second question on the side of evil.
Do you think, and Hitler is often brought up
as an example of somebody who is the epitome of evil.
Do you think you would,
if you got that same phone call after World War II
and Hitler survived during the trial for war crimes,
would you take the case defending Adolf Hitler?
If you don't wanna answer that one,
is there a line to draw for evil for who to not to defend?
- No, I think everyone, I'll 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.
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,
yes, I started my career as a public defender.
I represent anyone who was assigned to me.
I think that is 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
'cause it would have to be a US crime.
- United States, yes.
- But I get the broader point
and don't wanna bog down in technicalities.
I'd likely pass right now as I see it,
unless it was a case where nobody else
would represent him.
Then I would think that I have some sort of duty
and obligation to do it.
But yes, everyone absolutely deserves a right
to competent counsel.
- That is a beautiful ideal.
It's difficult to think about it
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 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.
And there's 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.
It does not operate to the best of its ideals.
It operates unfairly.
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 now.
And I usually focus on that.
But in truth, a lot works about our criminal justice system.
So there's an old joke.
And it's funny, but 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.
And yes, we certainly have a number of problems
and a lot of problems based on race and class
and economic station,
but we have a process that privileges 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,
so much so that a statement by Increase 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 impact the liberty interests
of any individual person.
So that's a guiding principle
on our criminal justice system.
Liberty.
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
and it says a lot about our criminal justice system.
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.
Now, 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% of the population
represent 40% of the drug charges in the country.
There's some disequities along race and class
in the criminal justice system
that we really have to fix.
And they've grown to more than bugs in the system
and have become features, unfortunately, of our system.
- Oh, to make it more efficient to make judgments.
So the racism makes it more efficient.
- It efficiently moves people from society to the streets
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,
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 that?
Legally to fight the system
through the process of revealing
the innocence of a human being?
- Yeah, emotionally and psychologically, 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.
So that certainly sometimes can do psychic injury on one.
If you get really invested and really sad or happy,
it does become emotionally taxing.
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?
It's got to be the most incredible thing in the world.
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 gonna define me,
that my humanity is there and it's immutable."
And they are not bitter, which is amazing.
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.
But people tell me that they can't survive,
like that one cannot survive like that.
And you have to come to terms with it.
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.
- Do you think it's possible to eradicate racism
from the judicial system?
- I do.
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
§05Transcript · 44:34–55:39
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 I think it's doable.
I mean, the country, so historians will look back
300 years from now and take note of the incredible journey
of diasporic Africans in the US,
an incredible journey from slavery
to the heights of politics and business
and judiciary and the academy and so forth
in not a lot of time and actually not a lot of time.
And if we can have that sort of movement historically,
let's think about what the next 175 years will look like.
I'm not saying it's gonna 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.
And if we see a better world,
we'll see a better judicial system.
- 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.
I tend to believe, we mentioned offline
that I work with robots.
It sounds absurd to say, especially to you,
especially 'cause we're talking about racism
and it's so prevalent today.
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 to ask very fundamentally human questions
about freedom, about suffering, about justice.
And they will have to come face to face,
like look in the mirror and ask in 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, forming another 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.
But it does feel like we always create,
as we make progress, create new other groups.
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.
The people talk about when we look back
from a couple of 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 ways.
But the robot one is the one I'm especially focused on,
but at this moment in time, it seems ridiculous.
But I'm sure most civil rights movements
throughout history seem ridiculous at first.
- Well, it's interesting, 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 that is the thing
that 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,
something that experienced the world in a way analogous
to how we experience it.
And also as I understand the science,
unlike what you see on television,
that 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.
- Yeah, yeah.
- A huge amount of progress has been made,
and it's fascinating to watch.
So I'm on both minds.
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,
to use terminology carefully here,
we keep discriminating against the intelligence
of artificial systems.
The smarter they get,
the more ways we find to dismiss their intelligence.
So this has just been going on throughout.
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 wanna 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.
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,
in terms of just everything we as humans
use to determine the ability of somebody
to be their own entity,
they're the one that loves, one that fears,
one that hopes, one that can suffer.
If a robot, in the dumbest of ways,
is able to display that,
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, we wouldn't be aware of our humanity.
And the law, as it protects our freedoms,
seems to be a construct of the social construct.
And when you add other creatures into it,
it's not obvious to me that you have to build,
there'll 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.
It's very interesting.
I mean, my favorite,
the fundamental thing I love about artificial intelligence
is it gets smarter and smarter.
It challenges us to think of what is right,
questions of justice, questions of freedom.
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 actual consciousness is anything
beyond some contingent reality.
But you've posed a number
of interesting philosophical questions.
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.
And it will be a complicated mix.
And I suspect I'll be dust
by the time those questions get worked out.
- And so, yeah, 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.
None.
But there is a discussion about what constitutes
a human being.
And I mean, you gestured at the notion
of the potential of the law widening the domain
of a human being.
So in that sense, right, 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.
And people say, "Well, I love my pet,"
but the law sees a pet as chattel,
as property like this water bottle.
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
§06Transcript · 55:44–1:06:25
of what it means.
So probably doesn't explicitly contain a definition
of something like soul, but it's more robust
than a carbon-based organism,
that there's something a little more distinct
about what the law thinks a human being is.
- So if we can dive into, we've already been doing it,
but if we can dive into more difficult territory.
So 2020 had the tragic case of George Floyd.
When you reflect on the protests, on the racial tensions
over the death of George Floyd,
how do you make sense of it all?
What do you take away from these events?
- Look, 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.
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.
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,
but there was widespread appreciation
that a fellow human being 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, well said,
and people were fed up.
So we were already in this COVID space
where we were exercising care for one another,
and there was just an explosion,
the likes of which this country hasn't seen
since the civil rights protests of the 1950s and 1960s.
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 not gonna
stand for it anymore."
And they took to the streets.
But with the millions of people protesting,
there is nevertheless taking us back
to the most difficult of trials.
You have the trial, like you mentioned,
that's going on now of Derek Chauvin,
of one of the police officers involved.
What are your thoughts?
What are your predictions on this trial
where the process of the law is trying to proceed
in the face of so much racial tension?
- Yeah, it's gonna be an interesting trial.
I've been keeping an eye on it there
in jury selection now, today, as we're talking.
So a lot's gonna depend on what sort of jury gets selected.
- 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.
So you get to watch some of this stuff.
And the other part is the jury selection.
Again, I'm very inexperienced,
but it seems like selecting an, what is it, unbiased jury,
is really difficult for this trial.
It's 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 deeply held emotions
and trying to get onto the jury?
I mean, it's an 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 carries the sort of the ideal of the law?
- Yeah, 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 gonna be televised.
So people are getting a view
of how laborious jury selection can be.
I think as of yesterday, they had picked six jurors,
and it's taken a week, and they have to get to 14.
So they've got probably another week or more to do.
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 choose the right sort of jury.
So unbiased in the criminal justice system
has a particular meaning.
And it means 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
has informed an opinion about the case.
Those are two popular misconceptions.
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, as a long time defense attorney,
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,
'cause I'm thinking, well, who is this person?
And what in the world do they do?
Or are they lying to me?
I mean, how can you not have heard about this case?
So they may bring other problems.
So I don't mind so much people who've heard about the case
or folks who've formed initial opinions,
but what you don't want is people
who have tethered themselves to that opinion
in a way that they can't be convinced otherwise.
So, but you also have people who, as you suggested,
who just lie because they wanna get on the jury
or lie because they wanna get off the jury.
So sometimes people come and say,
the most ridiculous, outrageous, offensive things
because they know that they'll get excused for cause,
and others who, you can tell,
really badly wanna get on the jury.
So 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.
And I would tell my class,
the reasonable person in real life
is the person that you would be least likely
to wanna have a drink with.
They're the most boring, neutral,
not interesting sort of person in the world.
And so a lot of jurors engage in the performative act
of presenting themselves as the most sort of even-keeled,
rational, reasonable person
'cause they really wanna get on the jury.
- Yeah, there's an interesting question.
I apologize, I haven't watched a lot
'cause it is very long.
I've watched it.
You know, there's certain questions you've asked
in the jury, you ask in the jury selection.
I remember, I think one jumped out at me,
which is something like,
does the fact that this person's 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 that's such a difficult question to ask.
Like, I asked myself that question.
Like, how much, you know,
we all kinda wanna pretend that we're not racist,
we don't judge, we don't have,
we're like these, we're the reasonable human.
But, you know, legitimately asking yourself,
like, what are the prejudgments you have in your mind?
Is that even possible for a human being?
Like, when you look at yourself in the mirror
and think about it, is it possible to actually answer that?
- Yeah, 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 when a bias is working
and actively try to do the right thing.
That's the best we can ask.
So if a juror says, yeah, you know,
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 I'll do my best and I won't weigh that testimony
any higher than I would any other testimony.
If you have someone answer a question like that,
that sounds more sincere to me,
it sounds more honest.
And if you want a person to try to do that.
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.
That's why we chose you.
And I'm confident that you're gonna do that here.
So when you heard that police officer's testimony,
the judge told you, you can't give more credit
§07Transcript · 1:06:30–1:16:52
to that testimony just because it's a police officer.
And I trust that you're gonna do that.
And that you're gonna look at witness number three,
you know, John Smith, you're gonna 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, 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 gonna just fine 14 people with no biases.
That's absurd.
- Well, 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, most introspective.
Like you're trying to basically ask people
to be their best selves.
And that's, and they, I guess a lot of people
step up to that.
That's why the system works.
- I'm very, I'm very pro jury.
Juries, they get it right a lot of the time,
most of the time, and they really work hard to do it.
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 OJ Simpson trial.
Do you think it's possible that Derek Chauvin
does not get convicted of the,
what is it, second degree murder?
How do you think about that?
How do you think about the potential social impact of that?
The riots, the protests, either direction.
Any words that are said,
the tension here could be explosive,
especially with the cameras.
- Yeah, 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.
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 a 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.
- Yeah, yeah.
- I'm not sure what's worse.
- Yeah, well, that's a good point,
but it's another basis for the jury to convict.
But look, you never know 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
'cause I just don't see,
at least nothing I've seen or read suggests
that there's a big pro-Chauvin camp out there
ready to protest.
- Well, there could be,
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.
- All that kind of stuff.
- I mean, a lot could happen.
So it depends on what he's convicted of.
One count, I think, is like up to 10 years.
Another count's up to 40 years.
So it depends what he's convicted of.
And yes, it depends on how much time the judge gives him
if he is convicted.
There's a lot of space for people to be very angry in.
So we will see what happens.
- 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.
Do you ever think about that as a lawyer, as a legal mind,
that your words aren't just about the case,
but about they'll reverberate through history, potentially?
- That is certainly a possible consequence
of things you say.
I don't think that most lawyers think about that
in the context of the case.
Your role is much more narrow.
You're the partisan advocate, as a defense lawyer,
partisan advocate for that client.
As a prosecutor, you're a 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 OJ Simpson before.
If the glove doesn't fit, you must acquit.
It's gonna be just in our lexicon
for probably a long time now.
So it happens, but that's not,
and it shouldn't be foremost on your mind.
- Right.
What do you make of the OJ Simpson trial?
Do you have thoughts about it?
He's out and about on social media now.
He's a public figure.
Is there lessons to be drawn from that whole saga?
- Well, that was an interesting case.
I was a young public defender,
I wanna 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 lay jury could understand it.
And what Johnny Cochran did was he understood the science
and was able to translate that
into a vocabulary that he bet that that jury understood.
So Cochran was dismissive of a lot of DNA.
They say, he said something like,
they say they found such and such amount of DNA.
That's just like me wiping my finger against my nose
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 microscopic.
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 it was the first time that the public generally
and that jury maybe since high school science
had heard nucleotide.
I mean, it was just all these terms getting thrown at them.
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.
It's still about a narrative.
And he was great at that narrative
and was consistent with his narrative all the way out.
Another lesson that was relearned
is that you never ask a question
to which you don't know the answer.
That's like trial absence 101.
So when they gave OJ Simpson the glove and it wouldn't fit,
you don't do things
where you just don't know how it's gonna turn out.
It was way, way too risky.
And I think that's what acquitted him
'cause the glove just wouldn't fit.
And he got to do this and ham in front of the camera
and all of that and it was big.
- Do you think about representation as a storytelling,
like you, yourself and your role?
- Absolutely, we tell stories.
It is fundamental.
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.
And we are still a species that is moved by storytelling.
So that's first and last in trial work.
You have to tell a good story.
And the basic introductory books about trial work
teach young students and young lawyers
to start in openings with this case is about,
this case is about, and then you fill in the blank.
And that's your narrative.
That's the narrative you're gonna tell.
- 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, yes.
- But that's the best of narratives, the best of stories.
- Yes.
§08Transcript · 1:16:53–1:28:17
- 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?
- Yeah, so Aaron, whom I miss a lot.
So he was charged with a double murder
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.
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 a murder
because he was a very popular football player in Boston,
which is a big football town
with the Patriots.
So everyone knew that he was a convicted murderer
and here we are defending for in a double murder case.
So that was the context.
It was not a case in the sense
that this murder had 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 murder that happened in the theater district.
That's the district where all the clubs are in Boston
and where the homicide occurred.
And once the police heard Aaron Hernandez's name,
then they went all out in order to do this.
They found a guy named Alexander Bradley
who was a very significant drug dealer
in the Connecticut area.
Very significant, very powerful.
And he essentially, in exchange for a deal,
pointed to Aaron, said, "Yeah, I was with Aaron."
And Aaron was the murderer.
So that's how the case came to court.
- Okay, so that sets the context.
What was your involvement in this case,
like legally, intellectually, psychologically,
when this particular second charge of murder?
- So a friend called me, Jose Baez,
who is the 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.
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 wanna go and talk to him with me?"
So I said, "Sure."
So we went up to the prison and met Aaron
and spoke with him for two or three hours that first time.
And before we left, he said he wanted to retain us.
He wanted to work with us.
And that started the representation.
- What was he like in that time?
Was he worn down by the whole process?
Was there still a 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 he walked in.
My first impression, I distinctly remember,
was, "Wow, this is what a professional athlete looks like."
I mean, he walked in and he's just bigger
and more fit than anyone anywhere.
And it was like, "Wow."
And when you saw him on television, he looked kinda little.
And I was like, so I remember thinking,
"Well, what do those other guys look like in person?"
And he's extraordinarily polite, young.
I was surprised by how young he was.
- Both in mind and body?
- Chronologically, I was thinking.
He was in his early 20s, I believe.
- But there seemed to be an innocence to him
in terms of just the way he saw the world.
- I think that's right.
- They picked that up from the documentary,
just taking that in.
- I think that's right, yeah, yeah.
- So there is a Netflix documentary titled
"Killer Inside the Mind of Aaron Hernandez."
What are your thoughts on this documentary?
I don't know if you've gotten a chance to see it.
- I have not seen it.
I did not participate in it.
I know I was in it because there was news footage.
But I did not participate in it.
I had not talked to Aaron about press or anything
before he died.
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 have never watched it.
- Not even watched, huh?
So does that apply to most of your work?
Do you try to stay away from the way
the press perceives stuff?
- During, yes, I try to stay away from it.
I will view it afterwards.
I just hadn't gotten around to watching Aaron,
'cause it's kind of sad.
So I just haven't watched it.
But I definitely stay away from the press during trial.
And there are some lawyers who watch it religiously
to see what's going on, but 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 Joe476@gmail, some random guy on the internet
telling me how to try cases.
So to me, it's just confusing,
and I keep it out of my mind.
- 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's right.
- Over time, it might accumulate.
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 sport culture and football and so on.
So I don't know in your interaction with him,
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?
- Well, I'm not gonna talk about my interactions with him
and anything I derived from that.
But what I will say is that a story broke 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,
or we really mushroomed the story.
So he and everyone was aware of it.
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 Aaron was,
that there was some sort of, I guess,
gay rage at work with him.
And that might be a cause, a motive for the killing.
And luckily they really backed off of that.
That was quite an offensive claim in theory.
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.
I mean, he was anxious for Jose 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, well, Ron, maybe not the Patriots,
but I want to get back in the league.
And I was like, Aaron, that's going to be tough, man.
But he really believed it.
And then 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?
- Very, very.
I thought, so one, I believe he absolutely did not
commit the crimes that we acquitted him on.
I think that was the right answer for that.
I don't know enough about Bradley, the first case,
I'm sorry to make an opinion on,
but in our case, it was just,
he had the misfortune of having a famous name
and the police department just really got on him there.
So yes, I miss him a lot.
It was very, very sad, surprising.
- 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, that whole story.
- He was a remarkably talented athlete,
remarkably talented athlete.
And it has to do with all the possible trajectories,
that we can take through life,
as we were talking about before.
And some of them lead to suicide, sadly enough.
§09Transcript · 1:28:22–1:39:06
And it's always tragic when you have somebody
with great potential result in the things that happen.
People love it, when I ask about books,
I don't know 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.
Yeah, so I'll give you a couple.
So one is "Contingency, Irony, and Solidarity,"
by Richard Worty.
He's passed away now, but was a philosopher
at 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 our most deeply held beliefs are contingent,
that there's nothing beyond history,
or prior to socialization,
that's definatory of the human being, that's Worty.
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 and accurate.
And he helps you to work through
what could be an intellectual tension,
other words, so you don't delve into,
one doesn't delve into relativism,
oh, everything is okay,
but he gives you a vocabulary to think about
how to negotiate these realities.
- 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 just society is.
- Yeah, I definitely share the tension
and love his vocabulary
in the way he's helped me resolve the tension.
So, right, I mean, yeah, so like,
infanticide, for example,
perhaps it's socially contingent,
perhaps it's received wisdom,
perhaps it's anthropological,
we need to propagate the species,
and I still think it's wrong.
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.
At some point, it's gonna run me in a circularity problem,
but that's okay, I hold this nonetheless
in full recognition of its contingency,
but what it does is makes you humble.
And when you're humble, that's good,
because this notion that ideas are always already
in progress, never fully formed,
I think is the sort of intellectual I strive to be.
And if I have a sufficient degree of humility
that I don't have the final answer, capital A,
then that's gonna help me to get to better answers,
lowercase a.
And Rorty 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,
and it's this active process.
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 W.E.B. Du Bois
was absolutely 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's just a beautiful text, and I go to it yearly.
- 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.
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?
Because my flavor of suffering,
and just I'm a Jew as well,
my flavor has to do with World War II,
and the studies of that, you know,
all the injustices there.
So I'm now stepping into a new set of injustices
and trying to learn the landscape.
- I would say anyone is a better person
for having read Du Bois.
It's just, he's just a remarkable writer and thinker.
And it, I mean, and 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 gonna give you three books.
I noted the accent when I met you,
but I didn't know exactly where you're from.
But the other book I was gonna say
is Dostoevsky's "Crime and Punishment."
- Oh, great. (laughs)
- 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 others of his stuff too,
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 both the meaning and the measure of our lives.
And Dostoevsky, obviously in conversation
with other thinkers, really gets at the crux
of a fundamental philosophical problem.
What does it mean to be a human being?
And for that, "Crime and Punishment"
captured me as a teenager.
And that's another text that I return to often.
- We've talked about young people a little bit
at the beginning of our conversation.
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.
I'll share some advice.
It actually picks up on a question we talked about earlier
within the academy and 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.
And it's hard for people.
I mean, you mentioned this earlier,
to face really difficult tasks,
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.
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 gentleman or gentlewoman's B
and just go on.
Or risk going out there, giving it your all
and still not quite getting it.
And that's a risk, but it's a risk well worth it
because you're just gonna 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.
And you're gonna be the better person,
the better human being.
- 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 wanna go into the cage with a lion,
but maybe you should.
- Maybe.
- Let me ask sort of a darker question
'cause we're talking about Dostoevsky.
We might as well.
Do you, and connected to the freeing innocent people,
do you think about mortality?
Do you think about your own death?
Are you afraid of death?
- I'm not afraid 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
to realize, wait a minute,
I'm actually on the back nine now.
So yeah, my mind moves to it from time to time.
§10Transcript · 1:39:10–1:43:30
I don't dwell on it.
I'm not afraid of it.
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.
Now, this is not to say that I wanna rush to the afterlife.
I'm good right here for a long time.
I hope I've got 30, 35, 40 more years to go.
But no, I don't fear death.
We're finite creatures.
We're all gonna die.
- Well, the mystery of it, for somebody,
at least for me, we human beings
wanna figure everything out.
Whatever the afterlife is, there's still a mystery to it.
That uncertainty can be terrifying if you ponder it.
But maybe what you're saying is (laughs)
you haven't pondered it too deeply so far,
and it's worked out pretty good.
- It's worked out, yeah, no complaints.
- So you said, again, that Stoyevsky kind of
was exceptionally good at getting to the core
of what it means to be human.
Do you think about the why of why we're here,
the meaning of this whole existence?
- 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 do good,
to do justice?
Some may look at it through the economist's lens.
Some may look at it through the microscope
in the laboratory that the phenomenal world
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 an education.
It's to sort of work through these issues.
What does it mean to be a human being?
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.
- Do you still see yourself as a student?
- Of course.
Yes, I mean, that's the best part
about going 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 you continue to read and learn and modify opinions,
and I think it's just a wonderful thing.
- 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 spent so much time,
waste so much of your valuable time with me.
I really appreciate the conversation.
- Not a waste at all.
- I think a lot of people love it.
Thank you so much for talking today.
- Thank you.
- Thanks for listening to this conversation
with Ronald Sullivan,
and thank you to Brooklyn and Sheetz,
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Click their links to support this podcast.
And now let me leave you with 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.
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