SPEAKER_00 0:00

Welcome to Beat the Prosecution, presented by Northern Virginia criminal defense and DUI lawyer Jonathan Katz, where we are here to regularly present you information and ideas for beating your prosecution as best as possible. Nothing on any of our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or for individuals who have paid for a consultation. And now for your host, John Katz.

SPEAKER_01 0:32

Hello, everybody. This is John Katz at Beat the Prosecution. I'm a criminal defense and DUI defense lawyer in Fairfax, Virginia. And today we are speaking with one of the key people who was responsible for me switching to criminal defense as early as I did in 1991. His name is Stephen Bright. He's a hero of mine. Yes, I've learned a little bit how to self-control myself, a bit over my excitement over all my great guests I've had. It was in 1990 or 91. I was at a reception after Charles Ogletree, I think, had argued in front of the Supreme Court a death penalty case. There was a reception at the legislative office of the ACLU in DC. Steve Bright was there, Brian Stevenson was there, and a whole bevy of other people. And I walked up to Steve and I said, Steve, I'm at a corporate law firm and I want to switch into criminal defense. Can suggest any enlightened uh law firm lawyers to speak to? I don't remember his exact words, but I think it was something along the lines of that's an oxymoron. I didn't know if that was just his humor or not. I still don't know. But then he pointed me in the direction of a lawyer who became a judge who was doing a lot of court-appointed criminal cases. He's a true hero of mine. He's a true hero of so many of us. Steve Bright, please introduce yourself.

SPEAKER_02 1:59

John, thank you for having me. And it's great to see you after 30 plus years.

SPEAKER_01 2:04

Well, I saw you outside uh the McWill on the steps in the McWilliamson case after you argued at the Supreme Court. So that was a little bit right. Where are you joining us from?

SPEAKER_02 2:16

Uh right now I'm in Lexington, Kentucky. I grew up in Kentucky on a little farm not far from Lexington. I still have a lot of family there. And so one of the places, one of several places that I live now, part of the year is Lexington, Kentucky.

SPEAKER_01 2:30

And um, are you still teaching? And if you are aware, I am.

SPEAKER_02 2:34

I will be up there in Washington, uh, near you uh in just uh the end of uh August, uh Georgetown. Uh I teach there in the fall term. Uh, and then for the last 30, 32 years, I teach at Yale and I'm there January through May uh in New Haven.

SPEAKER_01 2:51

Okay. Are you still doing cases in court and whether or not you are, what are the main cases you were doing in court, with which kinds of which with which organizations, and how did you get to that path? And how did you get to the path you are at now? Sure.

SPEAKER_02 3:05

Well, over I'm I've been a lawyer for 49 years now. And uh most of that time was spent with the Southern Center for Human Rights in Atlanta. I was the director for about 23 years, president, senior counsel for another 10 years after that. Most of my practice there uh was representing people in death penalty cases across the South in Mississippi, Alabama, Georgia, other states, uh arguing cases to juries in those states in Alabama, Mississippi, uh, and Georgia, uh, arguing cases to the appellate courts, four cases at the Supreme Court. Uh we also represented people in cases involving uh inhumane and unconstitutional practices in prisons and jails. Uh, so we did a lot of that litigation. Uh a few years ago, right about 2020, a little earlier maybe, I decided that I was sort of at a stopping place uh and that maybe I could do more good in what's left or the time that I have uh teaching and bringing on a new generation of lawyers, as opposed to taking cases that are going to go on like so many of my cases did for the next 15, 20, 25 years. So I still have a hand in cases every now and then. I still give advice, uh, but mostly I'm I'm teaching law school now.

SPEAKER_01 4:25

So, how did you get to this path of uh doing not just criminal defense? I know you were with the uh DC Public Defender Service and then doing capital defense. And uh and really my understanding is in at least one or more of your Supreme Court oral arguments, you're wearing a suit that was bought from a thrift store.

SPEAKER_02 4:45

Well, I'm glad you mentioned BDS because I meant to mention that. Of course, one of the greatest experiences of my life was being at the public defender service in Washington. That's where I really learned criminal law, learned to practice criminal law, uh, representing people in superior court. Uh, so I did that for a number of years. That's where I was first asked to take a death penalty case. Someone called and said, Will you take a death case in Georgia? And I was sort of surprised and said, Why would you call me? Uh or my colleagues, uh George Kendall and Russ Cannon. I said, Why would you call us? We're we're trial lawyers. We're in Washington, we don't have the death penalty. And uh, why would you call us? And I was told, we'll take anybody we can get. Uh, we've got people here that are facing the death penalty uh that don't have lawyers, which was shocking to me. Uh I was like, You mean there are people under death cent that don't have lawyers? And it was explained that yes, you have a lawyer for your trial and one appeal, but after that you're on your own. And this person had a right to petition the Supreme Court of the United States for review, but no right to a lawyer. So we thought, well, that's terrible. And we agreed to take the case. And then what really was the start of my education about the death penalty? Uh, we sort of braced ourselves expecting this rider truck to pull up and all these boxes to be unloaded. But instead, we got this very small envelope uh that had in it the transcript of everything. Uh, this incredibly perfunctory trial, uh, in which the penalty phase was nothing but the prosecutor giving sort of a lynch mob appeal to the jury to give the death penalty, and the defense lawyer giving sort of a generic argument about why the death penalty is just a bad idea, which even then I knew that was not a good argument because all the people uh on the jury had been asked if they were opposed to the death penalty, and the only people that make it onto a death penalty jury are people that are in favor of the death penalty. Uh, and then we met the client who was a young man who was paranoid schizophrenic and was incredibly uh disabled. Uh, none of that had been put before the jury. Um, and so things sort of went on from there. That was 1979. Don Wayne Thomas was the client. Uh, we took a couple of other cases, uh, and then finally in 1982, uh I moved from Washington to Atlanta and took on this running the Southern Center for Human Rights.

SPEAKER_01 7:17

So um, how did the funding trajectory or uh or or or a sense of chronology go for the Southern Center for Human Rights and anything else you've been involved with with getting funding for people who've already been convicted uh and put on death row?

SPEAKER_02 7:36

Well, there was not hardly any funding back at that time. When I, and Bob Morin, who was a lawyer there in Washington, went down with me. He later became the chief judge of the Superior Court there in Washington. But uh when we went down, the Southern Center was uh uh three lawyers and a secretary. That's all we had. Uh and we barely had enough funds to cover that. In fact, we really didn't. We sometimes couldn't make a payroll. Uh and so a big part of my job at first was trying to raise the money. Uh, we early on took a uh a tact of not spending very much money. We we really just paid sort of uh you know survival uh salaries. Uh and you know, at first I wasn't sure we were going to be able to even keep it going. Uh, but as years went by, uh we did, and more people sort of came to the rescue, both individuals and foundations and others. Uh, and ultimately the program grew to where it was much more financially secure and had a larger staff and investigators and paralegals and everything you need to run a human rights project in the South.

SPEAKER_01 8:45

What made you decide to become a criminal defense lawyer? And what made you decide to take what must have been a huge pay and financial cut from being a public defender in DC to being with the Southern Center for Human Rights?

SPEAKER_02 8:59

Well, I wanted to be a poverty lawyer, I knew that, and a civil rights lawyer when I went to law school. There's no question about that. The only question was where, what to do. Uh, I found that I found myself uh very comfortable in the position of trying to be between the person who's accused and the jail cell. Uh but I started out in legal services in the coal fields of Appalachia as a legal services lawyer representing people in all kinds of civil matters, uh, everything from uh environmental cases involving, you know, people who the coal mines were, or the coal companies, excuse me, were going to strip mine right up to their front porch. Uh, disabled people who were seeking social security benefits, uh, people who've been the victims of a flood. That was one of my cases, trying to uh get compensation for them. Uh I like that work, I could have done it the rest of my life, but I had the opportunity in 1976 to go to Washington, uh, join the Public Defender Service, which, as I said a moment ago, turned out to be a great education uh in uh criminal practice. Uh it was great in terms of what I did later on, because by when I get winged out of the South, I had done a lot of civil work and uh legal services, and I'd done a lot of criminal work at the public defender. Uh and a lot of the work that I did at the Southern Center was habeas corpus work, which is sort of a combination of civil and criminal. Uh, so it actually worked out pretty well.

SPEAKER_01 10:30

If my math is right, when you graduated from college, if you graduated around 22, the uh the draft for Vietnam was still very active. Uh, did you uh get a continuing deferment by going right into law school, or was there some delay with you being with the McGovern campaign?

SPEAKER_02 10:47

No, I spent all of 1972 in the McGovern campaign, but it was before that uh that I uh reported for, you know, back in those days, you you got a notice to go to Louisville, Kentucky, where I lived, a little farm near Danville, Kentucky, and uh went there uh for your physical. And it turns out that I uh have a back condition, which uh uh didn't seem to bother me that much, but they rule that I was not eligible. Uh so that that turned out not to be an issue for me, as it was for so many people and many of my friends at that time.

SPEAKER_01 11:21

Well, McGovern was an interesting person in many ways. He ended up buying that hotel in Stratford, Connecticut, which is just two towns away from my uh growing up town of Fairfield. And uh my first law firm I was at when I met you was in the same building as with the Special Olympics. And uh perhaps it wasn't the wisest thing for me to say to Sergeant Shriver, who uh became McGovern's running mate after uh Eagleton uh uh was uh pressured to bow out. I I said to him, you know, I was only in fourth grade when you were running. Uh I I guess I'll ask you in a separate time about what Shriver's motivation may have been to run as the running mate, because that's going a little far afield. But what I do want to ask you is uh if you grew up in Kentucky, uh that means you were growing up there before Brown versus Board of Education. And what were you experiencing about racism institutional and otherwise there as you were growing up?

SPEAKER_02 12:18

Well, I grew up in a Jim Crow uh community uh in Kentucky. Uh it was a small county, didn't have a lot of people in it, didn't have a lot of black people in it, but the schools were segregated, uh, everything was segregated, the barbershops, uh businesses. Uh black people couldn't come to the restaurants. They could go to the back, but they couldn't come, although we only had a couple of restaurants. But uh, and as I was growing up in the 1950s and early 60s, uh, that's when the efforts were made to desegregate the community. Uh, the county schools, I live down in the county because I grew up on a farm. Uh, the county schools did not integrate until my sophomore year of high school. Uh so all while I was in grade school, there were uh four uh regional elementary schools in the county for white kids, and then there was one black school for children all the way from first grade through high school with one teacher. It's outrageous. Uh, and they were bust. No matter where you were in the county, you were bust if you were black to that black school.

SPEAKER_01 13:25

Uh at what point in your life did you realize this uh segregation and bigotry was wrong? And and uh and what caused you to realize that or to to uh articulate that?

SPEAKER_02 13:39

Well, I very feel very fortunate looking back on it. My dad was a farmer, grew up, got up every morning and farmed all day long. My mother was raising four children, but they were very involved uh in the efforts uh to desegregate the community. Uh, one complicated for my dad. He just thought you can't treat people differently because of the color of their skin. Uh, and he thought it was terrible. And he wasn't at all hesitant to tell me. I learned two things. One, uh, that lesson about treating people the same. And secondly, about not being silent about it. I think most people in the community uh liked it the way it was. Uh, and if they didn't, they stayed quiet about it. Uh but my folks didn't. They were it's it's as I look back on it, of course, at the time it was going on, I didn't think that much about it. We were just, we were following what was happening with Dr. King and the Montgomery bus boycott and the efforts to desegregate. I remember watching on television when George Wallace stood in the uh schoolhouse door and wouldn't let the students in at the University of Alabama. And my father said at the time they ought to throw that guy in jail. Uh, he's violating a court order. A court ordered that those people be admitted to that university. Uh, and he should not be able to stand in the way of that. Um, so you know, it's quite remarkable. Um, but my dad had a good sense of uh justice, uh, even though you know he he was um uh you know he was uh a farmer, and as I said, he must spend all his day all day long out uh out in the sun farming.

SPEAKER_01 15:14

Well that that's that's great. Yeah, that great start like that. Uh I certainly um had to look for other sources often to stand up against racism myself. And uh I got so angry at this co-owner of this uh clothing store I worked at, he would use the N-word all the time. I asked myself, should I even be staying at this store? And one day he said to me, Go watch the N. He said the N-word because the way this clothing store was configured, it was like a review reverse U-turn. It was like it like U-turn, and there's a section where you couldn't see the customer unless uh you went and followed them. So I said, I don't know what the that word means. And he was apparently so ignorant he didn't realize that I I was kidding around that I really didn't know the word. Uh but um the the way I really uh overcame my anger about it is I put my money where my mouth was. Um I ultimately went into criminal defense, uh, was a public defender for five years. I've never looked back. And I I don't exaggerate at how much of a hero you are to me. Uh you're not the only one. Uh Brian Stevenson is as well. Uh Bob Morin is clearly a local hero. Uh and then there was even Don Fiddler. You may have known him when he was uh he was the national director of normal for a time. And when I read an article in High Times about what normal was doing, his picture was plastered right there when we ended up breaking bread together, and he gave me some pointers at how to switch to doing criminal defense. Uh I do want to tell the listeners there's so much you can learn about Steve, a book that he wrote with I think it was with one or two authors. Uh Steve is uh A Fear of Too Much Justice.

SPEAKER_02 17:00

That's right. Uh I wrote with John um uh excuse me, James Quok, K W A K, uh who was one of my students at Yale, uh and who's written some other books as well. And he and I uh wrote that together. It came out last year. Uh and there's a website for it, which is just WW, The Fear of Too Much Justice.com. Uh, and if you type that in, you can find out about the book. And also it collects all the podcasts and uh TV interviews and things like that about the book.

SPEAKER_01 17:32

I recommend all of that, including the book. And uh the book talks about uh so you say you've had four oral arguments in the Supreme Court, Steve? I have, yes. Okay, so one of them was McCleskey. Was that yours?

SPEAKER_02 17:46

No, no, no. McCleskey was argued by John Charles Boger at the NAACP legal defense fund. Uh that was 1987. I went to the Supreme Court, I watched him argue it. I certainly had great hope that we were going to get some good decision out of the court, but of course we didn't. Uh, but um uh that was a very important case, obviously. That was the case in which the Supreme Court uh held that despite the racial disparities in the infliction and the death penalty uh in Georgia, uh, that Georgia could still carry out the death penalty. It was a real uh terrible case from the standpoint of civil rights and uh equal treatment of people. Right.

SPEAKER_01 18:24

And that was that a 5-4 decision and that was made by Justice Powell?

SPEAKER_02 18:29

Yes, Justice Powell wrote the opinion. One of the things he said in the opinion is if we deal uh with race discrimination with regard to the death penalty, uh we'd have to deal with race discrimination with regard to all other kinds of sentencings because there's uh racial disparities throughout the criminal legal system. Uh Justice Brennan is in his dissent uh said that's sounds like the fear of too much justice. Uh and that was what we took as our title uh for the book, because I think it not only explains uh the Supreme Court's unwillingness to deal with racial discrimination in criminal cases, but it deals with a lot of the problems that we identify in that book. I think, for example, uh one of the reasons that uh public defender offices are underfunded and under-resourced in so many ways is there is a fear of too much justice. That if we had more public defenders and better resourced public defenders, there'd be more trials, uh, more people take their cases to trial, more people be acquitted. Uh that we ought to embrace that, but I think there's a real fear of that uh in legislatures and also among judges.

SPEAKER_01 19:41

And my understanding, for instance, Steve, even with one of the most well-funded public defender systems, the federal public defender system, I understand that pay parity between federal public defender lawyers and assistant U.S. attorneys didn't even come to the fore until Fred Warren Bennett, who was the federal public defender in Maryland, uh led the successful charge on that. Am I right about that?

SPEAKER_02 20:03

I'm not sure when it came about, but there's no question the model in that regard, resources regard, is the federal public defender system in the federal courts. Uh unfortunately, the federal courts only handle about 10% of the cases. 90% are in the state courts. And unfortunately, in many of the states, well, some states like Alabama, you have many counties in Alabama don't have public defenders at all. Uh, when there's a criminal case, the judge just appoints a local lawyer. And that lawyer may not even specialize in criminal law. That lawyer may do divorces and title searches and whatever kind of case they can make some money on. And then every now and then they get appointed to do a criminal case and they have no idea what they're doing, and they may not care about the client at all. They may even be racist. I've had plenty of uh I've seen plenty of uh cases where that was the case. Uh, and then a capital case comes along, uh, and and there's really no lawyer qualified to do it, uh, but they just appoint someone. Uh, and often people are fairly poorly represented. Uh in Houston, which is a place I've watched a lot because so many people have been sentenced to death there. Uh, the lawyers there, the local lawyers that contribute when people run for the bench, run to be judges. Uh, and then the judges in turn appoint these people, many of whom are blithering incompetence, uh, to represent people in all kinds of criminal cases, including death point cases, and pay them very, very generously. I mean, it really is a completely corrupt system. Uh, and yet it's going on. I mean, one of the problems that we have, both state and federal, uh, is the independence of public defenders and lawyers for poor people. Uh, there have been two reports about the federal system, both times, one uh chaired by Judge Prado from Texas, second by Judge Cardone. Uh both recommended. That get judges out of the business of appointing lawyers in federal court, but both times have been ignored. And so in federal court, one of the problems we continue to have is that judges often appoint lawyers. The federal defender may take the first person, let's say there are five people accused of a crime. Public defender can only represent one of those people. There have got to be other lawyers for the other four or five, or how many it is. And we see the same thing. Of course, obviously nobody's contributing. There are no campaigns in federal court. But we do see judges appointing people that are not capable of handling the cases. And that includes in death penalty cases, I'm sorry to say.

SPEAKER_01 22:44

So how widespread is that problem still? And is this problem not going to be stopped until we uh follow Andrea Lyons' uh model of the defender general?

SPEAKER_02 22:55

Well, you know, I think it's being fought out state by state, jurisdiction by jurisdiction. I think uh, you know, you do have some jurisdictions where the public defender program, let's say there's a statewide, and a lot of states don't have them, as I said, about half do. Uh, where you have a statewide public defender and there's a board, uh, and the lawyer, the people on the board are appointed, some by maybe the governor, some by the chief justice, but but some by the president of the bar, but nobody really controls it. And the the goal is to have the best possible legal representation. Uh, we see that in some places, uh, but unfortunately we see a lot of other places. Georgia's a sad example of this, I'm I'm sorry to say, where the governor appoints the public defender. Uh, and we've had a succession of public defenders who were had political connections but had no idea what they were doing. I mean, really, it's shameful, the people who were appointed. Um, and they serve at the pleasure of the governor. Uh, so if they're really standing up for people accused of crimes, if they're saying we don't have enough money or uh whatever it may be that needs to be done, they always have to think about it, going to get fired by the governor for doing that. You can't have a system like that.

SPEAKER_01 24:10

Of course not. And so I also wish to know what made you be willing to not just take a what must have been a huge pay cut to be with the Southern Center uh for human rights, but to stay in that situation for a long time, apparently, where you gave up a lot financially for that.

SPEAKER_02 24:28

Well, that's what I wanted to do. There was more than a pay cut. I don't think I got any salary the first nine months I worked at Southern Center. We just didn't have the money. But I was interested in representing people in death penalty cases and trying to stop the death penalty. And I do think if you look back on it now, back in the 80s and 90s, uh, the states were sentencing somewhere between 290 and 315 people to death every year. And one way they were able to do it was because of what I've described, judges appointing totally incompetent lawyers like Donald Wayne Thomas, my first client had, a lawyer who had no idea what he was doing, who didn't put on any defense and just gave a sort of generic argument against the death penalty. We disrupted that by going down uh and taking cases and representing people uh and providing people with really the best possible representation we could, uh, and going to in every state that I dealt with, there would be one or two or three prosecutors who were the big death penalty prosecutors. They're seeking the death pony every chance they get. And we started taking them on. Uh, and of course, what we found is that if you really provided people with good representation, if you investigated the cases, if you presented the evidence, uh you could keep most people from getting the death pony. And we were able to do that. Now, uh, you know, only about 40 people are sentenced to death every year in this country. I mean, it's a huge change uh from what it was like in the 1980s and 1990s.

SPEAKER_01 26:05

Well, of course, that's 40 too many, but a lot less. Uh Shalev Ben Al-Raham, who was with the Capital Defense Unit in Virginia, said on this podcast a few weeks that uh before Virginia uh abolished the death penalty, almost no one was going to death row.

SPEAKER_02 26:20

And that was Well, that's right. And that's because of the creation of the Capitol Defender Office. You know, Virginia was second only to Texas in the number of people being executed. Uh, and it used to be, I had some of those cases back in the 80s and 90s, people would be appointed in Virginia and paid $800 to represent somebody in death case. It was horrible. And almost all those people got killed, 113 of them uh got killed. And in the early 2000s, they created these four regional capital defender offices. So instead of people being represented by these incompetent lawyers, suddenly they're being represented by lawyers who know what they're doing, who have paralegals and mitigation specialists, investigators. Uh, and starting in in 2011, uh, Virginia went for 10 years without a single person being sentenced to death. It's remarkable. The state that was second only to Texas goes for, and at that point, the state repeals the death penalty. They haven't had it for 10 years, and well, we don't need it. And there were only two people on death row, and they were both commuted uh in 2021 uh when Virginia repealed. That's quite a quite a story there.

SPEAKER_01 27:31

And who was involved in getting a lot of the death penalty convictions? Paul Ebert from one county away from him, Prince William. Did you ever deal with any cases with him?

SPEAKER_02 27:39

I never dealt with his cases, but I saw a lot of his cases reported, and I saw some prosecutorial misconduct, if I remember correctly, in some of his cases.

SPEAKER_01 27:48

And uh I was stunned. One day I was in the uh one of the courthouses here in Northern Virginia, Steve, and this man excitedly comes up to me and says, You gotta buy a ticket for the uh some award, the Arlington County Bar Association award to Helen Fahy. Uh she was a pioneer in DNA evidence. And I said to myself, that sounds familiar. I looked it up. She was the chief prosecutor. You may know this, Steve. She was the chief prosecutor in Arlington, not only getting a death penalty uh sentence uh for a man using DNA, but I think he was executed too. Uh so of course I didn't, I of course I didn't buy any tickets to that. Of course I went on my blog and I said, This is nuts to even have bought any tickets to go to that.

SPEAKER_02 28:32

Well, you know, the people that got sentenced to death in Virginia, uh, they all got executed unless the Supreme Court of the United States intervened. Uh because the Virginia Supreme Court affirmed everything, uh, and the United States Court of Appeals for the Fourth Circuit affirmed everything. Uh, so there were only a few cases. Terry Williams got reversed by the Supreme Court of the United States, Williams versus Taylor. Uh, but if you got sentenced to death in Virginia, you that the show was over. I mean, that that was uh uh one reason being because the lawyers were so bad, none of the issues were preserved in the cases. Uh, and so very often the courts would say, well, there's nothing for us to look at here. Uh and they would also say, even though the lawyers were terrible, it didn't make any difference. Of course, we know now they were wrong. Uh because when people did have good lawyers, it did make a difference. People didn't get the duck point.

SPEAKER_01 29:24

And then there were just too many people in Virginia who thought that uh the death penalty was here to stay for decades. A criminal defense lawyer called me about 15 years ago and he said, John, I'm running for the House of Delegates in Virginia. Uh, little did he know that I don't really think much of even giving a dime to a politician. I think the only exception was I I may have given $10 or $20 to Bernie Sanders uh when he was uh campaigning to uh go into the Senate. Uh but nonetheless, uh I said to him, I see. I said, so what are you gonna do to abolish the death penalty in Virginia? And he made the wrong move. He said, That ain't gonna happen. And he started talking to me about uh uh an issue that was near and dear to his heart. Well uh justice came there, poetic justice, he didn't get elected, didn't win the uh primary, and within about 10 years later, the death penalty was abolished in Virginia.

SPEAKER_02 30:22

Steve uh really remarkable because you know the death penalty is really related to slavery. Yes, uh, and Virginia was a slave state. Of course, Virginia, the other thing that's interesting, Virginia carried out the very first execution in the history of the United States, 1607, carried out an execution. And Virginia has executed more people than any other state in the whole history of the United States. So, Virginia for Virginia to repeal is really remarkable. It really is remarkable. And it says something about the right to counsel, that the lawyers shut down the death penalty for 10 years. Uh and uh Virginia recognizing I saw Governor Northam's uh ceremony when he signed the law uh and talked about the incredible racism and race discrimination that had always been a part of the death penalty in Virginia.

SPEAKER_01 31:13

Okay, so let's talk about that. Race and poverty. Uh that's a big part of the death penalty system, right? And that's a big part of the criminal justice system. Uh two of your chapters in your book, the first two chapters, uh one of them talks about uh there not being a true, truly adversarial system in the U in the U.S. and in the criminal courts uh in large part because of uh funding and absence of uh of uh sufficient uh lawyers in many respects. And also about the I think you call the whitewashing of juries about bats and and and about juries that are just uh too white when when you have black defendants. Uh if I uh describe that correctly.

SPEAKER_02 31:56

Yes, I think one of the sad things is that today we still have all white juries, even in places that have pretty substantial uh black or Hispanic populations, and it's because of the peremptory strike, the strike that says a party, whether it be the defense or the prosecution, can strike a certain number of people. It's different in every state, but let's say 10, uh, and we still see prosecutors using all of their strikes against all of the uh people of color uh to get an all-white jury. And this went on for a long time, as you well know, uh, until the Supreme Court finally decided a case 30 some odd years ago now, saying you can't do that, but saying that if the defense objected uh when the prosecutor struck blacks, uh the prosecutor could still do it if the prosecutor could give a reason other than race. Uh well, that turned out to be a farce, uh, because a few years later the court said that reasons don't have to be persuasive, they can be silly, they can be superstitious. Uh, and so all these trivial reasons you see, and I think this is so sad for our system. You see all the uh people of color being struck, and then the prosecutor says, Well, I struck that person because they didn't maintain eye contact, or I struck that person because they had a man because he had an earring, or because he had a goatee, uh, which has nothing to do with the case. There's no earthly reason to exclude somebody from serving on a jury, and yet the courts uphold those reasons. Uh, and so there we have it. So we go through this sort of farcical exercise, which I think really undermines public confidence in the courts, because people come to a courtroom in a community that say 25-35% black, say, and there's an all-white jury, and the people are saying, Well, what is that? Why aren't there any people of color on that jury? Uh and they see that case after case after case, uh, because this is a habit that many prosecutors' offices have. One of the case I argued to the Supreme Court was out of Jefferson Parish, Louisiana. It's about 15% African American. Uh, and the prosecutors there always struck all the blacks in jury selection, including my client's case, Alan Snyder, tried by an all-white jury because the prosecutor struck uh all the blacks. Uh, fortunately, we were able to get the Supreme Court to take a look at that case. And when they did, and when they compared the reasons that the prosecutor gave for striking the African Americans with the white people that he kept, which had even stronger characteristics than the ones he had identified with regard to the black people, uh the Supreme Court reversed the case. Uh, Justice Alito, of all people, not exactly a friend of the uh criminally accused, uh, writing the opinion, uh saying that this was race discrimination. But but that's a one out of a million kind of thing. I mean, most of the time, uh prosecutors get away with it, most of the time.

SPEAKER_01 35:01

So I'm happy you mentioned the Snyder case and the Justice Alito was the uh did pen that decision. It was a seven to two opinion, right? Right. Uh so the name of this show is Beat the Prosecution. And of course, prosecutors listen too, so you know you'll you'll reveal what you want. But what do you think the criminal defense lawyers need to know that maybe they don't think about winning for their clients at any level, whether it's at the trial level, appellate level, including convincing those judges who you might be stereotyping as being being some of the toughest nuts to crack. But if there are judges, I mean that's the hand that's been dealt us.

SPEAKER_02 35:43

Yes, and I tell my students now that you know the most important people uh in criminal cases is not nine people on the Supreme Court in Washington, uh, it's 12 people in the community uh that are gonna be on juries, and it's the local judges and the local prosecutors because that's where the day-to-day uh dealing of criminal cases is gonna take place. Uh and uh what people have to do if they want to help people who are accused. Uh, and this is the civil rights issue of our time. I mean, race is a huge factor in who's accused, is a huge factor in how police make decisions, whether they stop people, whether they beat them up during the stop, whether they actually arrest them at the end of the stop, whether they're charged, how seriously they're charged, whether they strike people during the jury selection, all those things, all those race things uh are present in cases. And so people have to be there dealing with those issues uh at the local level in the first instance when cases come in, because most cases are going to be resolved right then, uh, one way or the other. Uh, and so it's very important uh and that people know how to deal with judges at the trial court level, uh, know how to deal with prosecutors, uh, know how to preserve issues. One of the things that is a terrible, terrible thing we see is the technicalities uh that uh courts over and over again will refuse to address some terrible thing that happened in a case because they said, well, the lawyer didn't object, or the lawyer objected but didn't say the right thing, or whatever. And of course, the ultimate thing uh is just preparation, preparation, preparation, because what I found in my cases is that if you investigated long and hard enough, you're always going to find a story. Uh it's gonna be compelling. Uh, may not be the end of the day, may not win the case, may not get the person acquitted, but it may be the difference between death and and and a lesser sentence than death.

SPEAKER_01 37:41

So now I segue this in from my uh Chinese martial art of Tai Chi, where the Tai Chi master who brought it over, uh here Chiang Man Shang said uh there are no secrets in Tai Chi, but if there are secrets, the hands don't move, the feet and uh and uh qi move the hands. Are there any secrets or near secrets that uh even great criminal defense lawyers maybe don't think about enough and should be thinking about or is more preparation, preparation, caring, caring, knowledge, knowledge, focus, focus, and there's that there's just no replacement for that.

SPEAKER_02 38:15

Yeah, I think there's no replacement for that. I think the thing that many people fail to deal with, and maybe it's just because we accept whatever we're used to locally, uh, is the race factor. Uh, I think that people, uh, criminal defense lawyers often don't really aren't as vigilant as we should be uh with to all the ways in which race is uh playing into cases, into arrests, into searches, uh jury selection, uh sentencing, uh people are sentenced more severely uh if they're black, people are sentenced more severely if the victim is white. Uh and the McCuskey case showed that if you have the combination uh of a black defendant charged with a crime against a white victim, that greatly increased the chance that you'd get the death penalty. Uh if Warren McCuskey's uh victim had been black, he wouldn't have received the death penalty. Uh he only received the death penalty because his victim was white, and the statistics showed that. That almost never uh were juries in Georgia given the death penalty in black victim cases. Uh and so uh that's critically important. Jury selection is critically important. Uh and I think maintaining relationships with NAACP chapters and churches and other people in the community, uh, and telling people about how important it is. One of the things that I tried to do in the communities where we tried cases uh was go to the NAACP chapters and go to the black churches and talk about uh here's what's going on down here. Uh and here's why you don't see any uh black people in the juries, because prosecutors striking. Uh and these prosecutors come up for election, you know, every so often in this community. Uh and you may want to let the prosecutor know you don't care too much about that. Uh and also uh, you know, we're gonna have a hearing on this uh next week, and maybe you want to come and bring the people in your congregation or the people uh in the NAA chapter uh to court and see what happens in court, uh, because that's really important. And I I found that really was uh uh really was helpful. Uh we had a court, we had a hearing one time, the whole audience is a huge courtroom, and it was packed uh with African Americans, and the judge was apoplectic. He'd never seen so many black people in court, he had no idea what was going on. Uh you know, like you know, a hail storm had broken loose in the courtroom. Uh and uh, you know, it it has a it has an impact.

SPEAKER_01 40:50

Okay, so uh the name of that Supreme Court case that uh uh gave too much lip service and anything else to uh uh not allowing race space uh jury selection, that's Batson versus Kentucky, your natal state, right?

SPEAKER_02 41:05

Right. That's the jury selection case. And you know it's interesting, Batson was decided, and we have two little stories about that. The next year, we didn't find this out for 10 years, but the next year uh prosecutors in Philadelphia are having a training session, and the person leading the session says, now here's what you do, you ask the black people questions and you write something down on your legal back, because you're gonna have to give a reason for striking. In other words, instead of embracing Batson and saying we're not gonna discriminate anymore, what they were doing was describing exactly how to discriminate and how to get around Batson. And the same thing happened in Rome, Georgia, uh, where the prosecutors in the case that I argued at the Supreme Court, Timothy Foster, um, exactly the same thing. How do we get rid of all the black people? The only reason we found out about Philadelphia was that 10 years later, when the guy who ran that training session uh ran for, he challenged the incumbent district attorney, ran against her. And she released the videotape of the training session uh to try to discredit him. Uh and the only reason we found out what happened in Rome, Georgia was we filed an open records act request under the Georgia cont Georgia law, uh, and we got the files, and they had forgotten to destroy the notes on uh how they picked the jury. And so we had all these notes that showed that they lied to the judge about why they struck people, that they had identified all the blacks and circulated them around to try to get reasons for striking them. They'd compared the blacks against each other. There was a memo in the file that said if if we have to select, if we have to accept a black, Ms. Garrett might be okay. But of course, they struck Ms. Garrett too because they had more strikes than there were blacks. So they struck everybody. Yes, you're speaking of the Foster case here, right? Yeah, that's Timothy Foster, Foster versus Chapman. Uh John Roberts uh for the Supreme Court wrote the opinion in that case. The only dissent was Tyrant Thomas. Uh the race discrimination was so blatant, but it didn't bother Georgia courts at all. Uh the Georgia judges upelled it, the Georgia Supreme Court appelled it, not even a single dissent. And yet the Supreme Court of the United States struck it down.

SPEAKER_01 43:19

You won the foster case too. Uh have you if you've lost any Supreme Court case, have you? I think it was only one.

SPEAKER_02 43:27

No, we we prevailed.

SPEAKER_01 43:28

My clients prevailed in all the Supreme Court cases. Okay, so what do you do to win a Supreme Court case, or is it different for each case for your preparation?

SPEAKER_02 43:37

Oh no, I think that winning the Supreme Court case, at least my uh way to do it. Of course, you work very hard on the briefs and all that, and you make sure you know the legal issues, but then uh you just practice, practice, practice. I did moot courts that is uh sat down with uh really good lawyers and had them just pelt me with questions, everything. Uh hopefully by the time I got Supreme Court, I had I had been asked and it answered every question about the case. And that's what we did all four times. And it was really helpful. And I think by the time I went before the court to argue the cases, I think I was, you know, I felt like we were prepared. And we had an answer for every question. A lot of times the answers in Tony Amadeo's case, the first one I argued, Justice Scalia asked me a bunch of really, you know, technical questions, and I answered them and pointed right to the place in the record where they were. Later in the Snyder case, Justice, right at the start, uh Justice Alito uh started asking me questions, and I gave him answers to those questions, and it must have satisfied him because he wrote the opinion uh in our favor.

SPEAKER_01 44:49

Right. So um you've talked about inspiring uh other lawyers to uh to take over the baton. Um was Brian Stevenson uh one of one of your first uh mentees or students or whatever you would call it, or was he uh one of one of the weights uh of uh lawyers?

SPEAKER_02 45:09

Brian Brian came down uh for uh Harvard has a decim, excuse me, a January semester where students do something for four weeks in January, then go back to school. He came down uh to the Southern Center, he spent January, we really hit it off. We just, you know, it just was it was a perfect, perfect match. Uh and then he came back that summer after his second year of law school and spent the summer with us. And then he came back the next year after he graduated from law school as an attorney uh and was with us in Atlanta about three or four years and then uh established the Equal Justice Initiative in Alabama. And uh the rest, as they say, is history. Uh so yeah, Brian, Brian, you know, is is one of many of the people who worked at Southern Center were people who came down uh as law students, uh, spent a summer with us. Uh we found out what they, you know, how committed they were, how smart they were, how good they were. They found out, you know, how we operated. And so at the end of that process, it's a pretty good match, uh, or you can decide it's a good match. And with Brian, it certainly was. And of course, now I just this summer, uh Juneteenth, I was down uh for the dedication of the uh sculpture uh park. It's a really remarkable uh sculpture park that Brian has brought about on the shores of the Alabama River that uh commemorates slavery. Uh, and it's really something everybody ought to see. And now, of course, in Montgomery, there's the memorial to lynching. Uh, there's the legacy museum uh from slavery uh to Jim Crow uh to mass incarceration, uh, and there's the uh the sculpture park about slavery. So it's really uh go spend a week in Montgomery because there are a lot of things to see and experience there.

SPEAKER_01 47:07

Uh yes, spend a week in Montgomery. My son and I, Steve, only got a chance to be there uh January 30th through 31st. Uh no, December 30th through 31st, driving back from New Orleans. So we had a much shorter time. But luckily the legacy museum was open on uh December 31st. So I wouldn't have traded that for the world. Uh Steve, so you I take it you have had uh one or perhaps too many clients who've been sent to death row, but then sorry, who've been executed, then again, one is too many. Uh have you been to executions?

SPEAKER_02 47:42

Yes, I mean we've over the years, you know, if you're doing this every day, you're you're not gonna prevail, unfortunately, in every case. I've had five clients executed that I uh was with when when they were when they were put uh when they were executed.

SPEAKER_01 47:56

Were were all of those people executed by lethal injection or were there electric electrocution?

SPEAKER_02 48:01

No, most of these were in the early days. Uh four of them were by electrocution, and and the last one was by lethal injection.

SPEAKER_01 48:10

All right. Well, I mean, I don't want to open up any misery about this, but uh uh, you know, what what was that like for just one example? I mean, it must have been heart-wrenching to say the least, but I take it that your client really appreciated that you were there. Well, all of them.

SPEAKER_02 48:26

Yeah, it's important to be there. And I think the reason we're doing the work we're doing is because it's important that people not stand alone in the court and not stand alone when they're facing the death penalty. And uh, you know, it's important for the clients, it's important for their families uh who want to know what happened and how it went and all that. Uh, of course, just the total senselessness of it is is overwhelming. Uh, some of them, I one of my clients, uh James David Rollerson, was uh executed in Florida uh for uh murder of a police officer, and the uh only other people in the there for the execution besides me uh were police officers uh who were there to celebrate the execution. And they uh both there and then outside of the prison, they had these uh sweatshirts that said uh crank up old Sparky and had a picture of the electric chair. Uh and I just think, you know, I it's pretty remarkable uh for people to be celebrating, and I don't care what anybody did, to be celebrating the death of another human being. I think it's just sort of the uh, as I've said, it's it's a dark side of the human spirit. Uh but I saw it and I saw it in other other cases as well.

SPEAKER_01 49:44

You know, Steve, that's really something when when when no one else is there to uh to support the person they're being executed. That's and and when someone's just going to trial, I mean, I've seen it too many times, people going to trial, major felony cases, and they don't have one supporter there other than their lawyer. Right. I don't know you well enough, but I'm happy I know you as much as I do. You strike me as at once a true gentleman, a truly caring person, a very zealous person. What have been your secrets and approaches to dealing with when you've had anger towards a judge, a prosecutor, a cop, any opposing witness? Because I know you you've known that you can't let that anger show. How have you dealt with it?

SPEAKER_02 50:32

Well, you know, I don't know if I have the answer to that. I I think what sort of motivated me has just been my outrage uh about what I've seen. I think uh, you know, initially when I was called, reason that uh we took that case was just seemed so uh uh unfathomable that somebody could be under death sentence uh and have uh stages of review open to them, but not have a lawyer to take them there. Uh and I think that's how we got involved. Uh I had always thought from childhood, and I don't know why, but it just always seemed to me uh that the death penalty was such a primitive uh sort of punishment, like you know, cutting off fingers or lashing people or something like that. And I didn't quite to this day quite understand how it has survived. Uh we don't cut off limbs, although the constitution does say to deny people of life or limb, uh, but most people don't think we ought to be doing that. Uh it's it's it's just really remarkable. But at any rate, I I I've tried to do uh you know things the best way that I possibly can to be as much help to the people that I've represented as I can be.

SPEAKER_01 51:47

Okay, so certainly one way to deal with our anger towards the injustice in the system is to take action. Is there anything beyond that on the micro level there? For instance, you're at trial and the judge makes a totally uh unjust uh evidentiary decision. Uh, did you have any approaches to that beyond that? Look, I'm just gonna deal with this the best I can. We're gonna preserve the appellate record and we're just gonna move on and uh see if maybe I can convince the judge to change his mind. I mean, have you always been able to uh uh keep that anger at bay?

SPEAKER_02 52:19

Well, that's certainly what you try to do. I don't think there's any question about that. On the other hand, as you and I both know, there are gonna be times when you're in court and the stakes are very high, and either the prosecutor or the judge, whatever, is doing something that just seems outrageous, uh just uh, you know, totally uh against the law, against everything. And um, you know, there's certainly been times when I've been uh quite angered by that. Uh and I've certainly had to uh, you know, be careful. But uh, you know, at the end of the day, uh you have to remember that there's another appellate court or there is an appellate court, hopefully, that you can take the case to. Uh, but I have seen a lot of terrible things in terms of what people have done uh in courts uh to take advantage of people. Uh and um one of the worst things that I've seen is is uh intentionally giving people bad lawyers so that you can just run them through the system. Uh and the best way I can deal with that is to actually represent the people and um and provide the kind of representation they ought to receive.

SPEAKER_01 53:28

Well, Steve, I told you we're gonna end around now, but before we do end, uh is there anything you'd like the listeners to know that you have not already addressed?

SPEAKER_02 53:38

Well, my there are many things. If you have an opportunity, what we tried to do in uh the book called The Fear of Too Much Justice was just describe what I've seen over the last uh 49 years of practicing law. Uh, but it's not just a matter of looking at the problems, it's also uh look at the solutions and saying here's what the Supreme Court of Washington did, or here's what New Jersey has done, or here's uh what the legislature somewhere did, and say uh we can have the kind of justice that uh that uh people are entitled to. Uh Hugo Black said, there can be no equal justice when the kind of justice a person gets depends upon the amount of money uh he or she has. Unfortunately, in our system, uh the justice a person gets depends very much on the amount of money uh they have. Uh and so we've suggested ways to deal with that uh and to try to have a more equal, fair, and just system. Uh and I hope it's helpful to people who are interested in knowing more. A lot of your listeners probably know more than I do about the legal system, but uh there are people, and I'm particularly encouraged when college students and people that are learning about this system are interested to say, here here's what here's what I've seen. Uh, here's what we think may be the answer. Uh, and let's get out there and try to make it happen.

SPEAKER_01 55:07

Excellently said, Steve. Uh, and everybody, uh, this is not just the conversation, this is just the start of the conversation. Uh, Steve Bright and so many other people have brought us so much closer to uh uh Martin Luther King's dream and true justice, but we are so far from realizing Martin Luther King's dream and to realizing true justice in the uh court system and beyond. I really appreciate deeply, uh Steve, your role in this. I really appreciate that you gave me your time when I first met you about 33 or 34 years ago, and that I kept the fire burning in me to find a way to depart from a corporate law firm that was paying me a really nice paycheck and to pay, take a pay cut and become a public defender lawyer for five years and to continue doing criminal defense to this day where it's 99% of my practice. Stephen Bright, thank you so much. You've heard from uh Steve Bright, a great lawyer, a great man, a great inspiration, a great inspiration to me and thousands of us other criminal defense lawyers. You've heard from John Katz at Beat the Prosecution. I'm a criminal defense and DUI defense lawyer in Northern Virginia.

SPEAKER_00 56:25

Thank you for listening to this week's episode from Beat the Prosecution. This is a regular podcast giving people a leg up against police investigations and prosecutions. Nothing discussed on our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or to individuals who have paid for a consultation. We welcome you contacting us via email at info at beat the prosecution.com by calling our office at 703 383 1100 or texting us at 571 406 7268.