The year 2013 marked the 50th anniversary of two landmark Supreme Court cases in criminal defense law. In Brady v. Maryland, the Court ruled that prosecutors are required by law to turn favorable evidence over to defense attorneys. And in Gideon v. Wainwright, the Court ruled that for felony cases, the government is obligated to provide indigent defendants with adequate legal representation.
Earlier this year, I interviewed longtime criminal defense attorney Sam Dalton for a long investigative piece on prosecutorial misconduct. Dalton is something of a legend in Louisiana courtrooms. He has just entered his seventh decade of practicing law. In that time, he has defended more than 300 death penalty cases. Of those, he spared 16 defendants from execution -- this in a state that's rather fond of executing people. He has also been a voice for civil rights, he chartered a model public defender system, and he's currently leading a charge to impose some accountability on Louisiana's more egregiously misbehaving prosecutors. My favorite thing about him: Outside his office door there's a "welcome" mat that reads: Come back with a warrant.
My interview with Dalton extended well beyond the quotes I used for my article. I found him to be a fascinating figure, and certainly someone with some unique and well-earned insight into the way the criminal justice system works. So the full interview follows.
This is also my last contribution here at Huffington Post. Starting January 8, I'll begin a daily blog at the Washington Post that will focus on civil liberties and the criminal justice system. My interview with Dalton seems like an ideal way to wind down both my time here at HuffPost, as well as a good way to end a year marked by milestone anniversaries of Supreme Court rulings protecting the rights of the accused.
You're one of a few people still practicing law who was also practicing before the Brady decision came down in 1963. How did Brady change the administration of criminal law in America?
Brady made things a little better, at least at first. The younger prosecutors tried to take it seriously, and would try to comply, but there was still a community standard to evade disclosure. So they'd actually hide it from their bosses when they'd turn over favorable evidence to us.
So complying with the new Supreme Court requirement to turn favorable evidence over to defendants would get them in trouble?
Yes. You aren't going to change an entrenched culture overnight. The decision gave us a tool to fight withheld evidence after a conviction, but it didn't change the culture of evasion. Change has come slowly. Very slowly. And in some places, like Orleans Parish, the ruling was just ignored. The Brady problem really became atrocious under [former and longtime Orleans Parish District Attorney Harry] Connick. Nondisclosure was routine, and it's ridiculous to say he didn't know about it. He was too competent not to know what was happening.
Why has it been so difficult to get prosecutors to comply with Brady?
It's a mix of the system and the personalities. First of all, it takes a certain sort of personality to want to become a prosecutor. It takes someone with ambition, usually political ambition. And it takes a person with greed, not necessarily for money, but for power. Second, you have to look at what the system rewards. The best way to get attention for yourself as a prosecutor is to put a lot of people in jail. There's no votes to be won for deciding not to prosecute someone in the interests of justice. No prosecutor runs for higher office by touting the charges he didn't bring, or the fairness he showed to those accused of terrible crimes. You put those two problems together, and you get a culture that encourages deliberate indifference, especially once they're publicly invested in a particular suspect.
These sound like intractable problems. Looking back on your career, have you grown more pessimistic over the years?
We have a fine, beautiful legal system. But it has been prostituted by bad prosecutors, bad policemen, and indifferent judges. We need to look at what kind of character we want the people who hold those jobs to possess, and we need to understand the character of the people who most want those jobs. When you look at those two things, I think you'll often find that they're contradictory.
If I were running a DA's office, I would go out and recruit my prosecutors myself. I wouldn't wait for applicants to come to me. In theory, just wanting to be a prosecutor should disqualify you from becoming one. I'm speaking on broad strokes, here. I'm not talking about hard and fast rules. But that should be the general mindset we take when staffing a DA's office.
Where do you come down in the debate between electing judges and appointing them?
I'm against electing judges. I'm also against appointing them.
If you thought the courts were overburdened now . . .
Yes. I guess I would limit judges to a single 10-year term. Or something like that. Whether they served that term by winning an election or by getting appointed isn't as important. I think the main problem with electing judges is that you have to raise funds, which can force you into some compromising relationships.
Few people have the money to fund their own campaigns. But in my experience, those who do tend to become good, fair judges. That's probably because they could be doing other things. The position isn't a stepping stone for them. And there's no indebtedness to others.
But appointing judges comes with its own set of problems.
Anything else you would change about how we pick and oversee judges?
I think every judge should handle both civil and criminal cases. When you split up cases like that, you immediately start to see fighting over budgets. But more importantly, there's something important and necessary about having judges handle a wide variety of cases. It gives them some worldliness, some context and perspective. Criminal courts judges can often become hardened to the misfortunes of people. They can lose their sense of empathy.
You have to remember that nearly all judges are former prosecutors. There's an undercurrent of alliance between judges and prosecutors, so there's a certain collegiality there. They run in the same social circles. They attend the same Christmas parties.
Why don't more criminal defense attorneys become judges? Is it that they can't, or don't want to?
I think most people would say that the position just isn't available to them -- that it's a long shot for a defense attorney to win a DA election or to get nominated to become a federal prosecutor. That's probably true. But I also think that most of us just don't want it. Judges and prosecutors share a lot of DNA. Criminal defense attorneys are whole other animal.
I should add that we do have some very good judges in Louisiana, and also some good prosecutors. But the bad outnumber the good.
So what does it take to be a good criminal defense attorney?
Commitment. I haven't on time for supper in 50 years. My wife should have divorced me years ago.
It seems like the job would also require a high threshold for disappointment. Aren't most criminal defense attorneys pretty cynical?
Oh, no. I think just the opposite. I always go back to the joke about the 11 year-old-twins. One of the twins was an eternal optimist. He only saw the good in everything, which made his parents fear that he'd be easily manipulated. His brother was an eternal pessimist. Only saw the bad in people, which his parents feared would make him sad and lonely. So they took the boys to a psychiatrist, who proposed an experiment. Per the psychiatrist's advice, the following Christmas the parents bought the pessimistic boy every toy he could possibly want. The optimistic boy woke up Christmas morning to several piles of horse manure. A week later, they took the boys back to the psychiatrist. He asked the pessimistic boy if had a good Christmas.
"It was terrible," he said. "I got all of these brand new toys, but I can't play with any of them because I'm afraid I'll break them."
The psychiatrist then posted the same question to the optimistic boy. "It was great!" he exclaimed. "I got a pony! I just haven't found him yet!"
Criminal defense attorneys deal with a lot of horseshit. I think the thing that keeps us going -- or at least the thing that has kept me going -- is knowing that with all that shit, sooner or later you're going to find a pony.
So what are the ponies? Discovering wrongful convictions? Freeing an innocent person from death row?
Those are all important, yes. But those are rare. There are smaller, more attainable ponies. Getting evidence suppressed because you convinced a judge that a cop broke the rules. Getting a conviction overturned after you've shown that a prosecutor withheld evidence. Even in cases where the charges are relatively minor, there's great satisfaction in knowing that you forced the state to play by the rules, that you successfully held a powerful person to account.
Most of the people most criminal defense attorneys represent are guilty. And most of their cases will end with convictions. Does that ever weigh on you -- knowing that you'll fail far more than you'll succeed?
I think it's a mistake for a defense attorney to define success by how many acquittals he wins. I define it by whether I've forced the state to do its job, and to do it fairly and in compliance with the Constitution.
But let me say something about convictions. Convictions are important. And it's important for attorneys to represent even clearly guilty people. There's the obvious reason -- that everyone deserves a fair trial.
But here's a less obvious reason: Ask yourself, what contribution do convictions make to criminal case law? The answer is that they're responsible for almost all of it. When you're acquitted, you don't appeal. Only convictions are appealed. And it's on appeal that you argue that your client's rights were violated. Appeals are where the appellate courts enforce the Constitution. At least where they're supposed to. It's only because someone was convicted that we have the rules in place today that protect the accused. There's a kind of beautiful symmetry to that. It's because of convictions that we have the rules that protect the innocent.
What do you think is most lacking in the criminal justice system today?
A true appreciation of what's at stake. To take someone's freedom -- that's the ultimate deprivation a government can inflict on a citizen, short of taking his life. Everyone in the criminal justice system -- judges, prosecutors, police, criminal defense lawyers -- can get lost in the day-to-day, and lose sight of what's really going on in these courtrooms.
I'll give you an example. We've known for decades that eyewitness testimony is unreliable. Horribly so. There's a mountain of research that says so. But until DNA testing starting exonerating people convicted based on testimony from witnesses -- sometimes four, five, six of them -- the courts treated eyewitness evidence as the best possible evidence. That should be terrifying to all of us. But the courts have been shamefully slow in changing how they handle eyewitnesses. They give it far too much weight in cases still today. There's even less interest in reopening past cases.
But that's only one side of the problem. The criminal justice system today also fails to do what it's designed to do, which is to protect us from dangerous people.
You're referring to the fact that every time an innocent person is convicted, the guilty person goes free, possibly to commit other crimes?
Yes, that's true. But the problem is more profound than that. The best example is that we don't know how to impose punishment. We focus too much on retribution, and too little on protecting society from harm.
Let me give you an example. Two men commit an armed robbery on the same night. The first man is a father of four. His family is about to be evicted. Or if you want to make him less sympathetic, let's say he's a drug addict who needs money to buy his next fix. He's nervous, he's sweaty. He's desperate, and he's panicky. He approaches his victim and roughly accosts him. He puts his gun to the victim's head. He's screaming profanities. He screams out for his victim's wallet, then screams louder and threatens the victim for moving too slowly. He takes his money and runs off. His victim is terribly frightened.
In the second scenario, our mugger is calm, cool, and methodical. He approaches his victim from the front, puts a light hand on the victim's back, and slowly and unemotionally explains that he has a gun in his coat pocket. He tells his victim that if he hands over his wallet, no one will get hurt, and they can both be on their way. The victim hands it over. The mugger walks off. The victim is angry at just having been robbed, but he isn't terrified. And he was never in real fear for his life.
Which of the two armed robbers is likely to get the longer sentence? Almost certainly the first one. Which of the two is the bigger threat to society? Unquestionably the second one. In fact, the second one is not only a likely career criminal, he's more likely to actually kill someone. The first one is scared because he knows he's doing something wrong. He feels some empathy for his victim. He's committing a crime of necessity. That isn't to say it excuses him. But his aggression comes from fear. The second mugger is incapable of empathy, or has learned to turn it off. He's cold-blooded.
So you see we impose punishment based on fear and a desire for retribution, not based on rational evaluations of what crimes and criminals are most dangerous.
What would you say to a well-intentioned person interested in becoming a judge or a prosecutor?
Retain your humility, and understand the corrupting effects of power. Power is insidious. It will creep up on even the most decent people. Always be aware of that, and be vigilant against it.
How specifically does a person do that? I've talked to former prosecutors and police officers who admit that there were times they were blinded by power or tunnel-vision, but didn't realize it at the time.
I have what I call a theory of inverse power. It may sound silly, but I think we need daily reminders to keep us grounded. I think that instead of collecting the little day-to-day accoutrements of power as you ascend in office, you should lose them. The most powerful man in the building should have the worst parking space. The district attorney should have the longest walk to the office. Twice a day, at least, he'd be reminded of his humanity.
There's also the distribution of chairs -- powerful people have the soft, cushy chairs. The chairs get harder and less comfortable as you go down the ladder. Whenever a new regime takes office, there's always a rearranging of the chairs. If you want to be a conscientious leader, give yourself the hardest chair.
These are little things, I know. But don't underestimate them. Powerful people insulate themselves from humility -- not just in terms of official accountability, but in their immediate surroundings. But they're the ones most in need of it. Reminding yourself that you're human and capable of mistakes is important in any line of work. But it's especially important when you hold lives in your hands.
Outside of parking spaces and chair arrangements, what about public policy? If you could pass a few laws tomorrow to curb abuses of power and make the system more fair, what would they be?
This isn't a satisfying answer, but I'm not sure there's much to be done. We keep getting back to the fundamental problem, which is that the ideal person for a powerful position is someone whose character makes them very reluctant to wield power. And those people are obviously uninterested in seeking powerful positions. I don't know how you change that.
So there will always be incidents, because there will always be that tension. But we can strive to make the incidents less routine. Certainly some accountability would help. I don't know that state bars will ever be able to sufficiently hold prosecutors accountable for misconduct to the point where professional sanction could be an effective deterrent. But right now, it rarely happens at all. Surely we can do better than nothing.
That's pretty cynical. So where's the pony in all of this?
I do think that things are slowly getting better. DNA testing has proved that the system is fallible. No one can deny that now. So we don't argue about whether the system is broken anymore, we argue about how broken it is, and about how to fix it. DNA testing was a dose of that humility I was talking about, only it was system-wide.
As I said, I also think that for human beings, we have a fine and beautiful justice system. It isn't good enough, but it's such a far improvement from anything that came before it. And things have really improved from when I started practicing. There's still corruption and misconduct, too much of it. But it isn't brazen. It isn't a badge of honor. They have to hide it. That means they know that it's wrong -- or at least that most people perceive it as wrong.
It's getting better. It really is. But it's moving too slow.