Ronald Sullivan: The Ideal of Justice in the Face of Controversy and Evil | Lex Fridman Podcast #170

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 GINA six defendants and never lost the case during his years in Washington D.C. '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 8, 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 by Brooklyn and Sheetz Wine Access online wine store, Monk Pack, low carb snacks and Blinkist app that Summariz Books click their links to support this podcast. As a side note, let me say that the free exchange of difficult ideas is the only mechanism through which we can make progress. Truth is not a safe space. Truth is humbling, and being humbled can hurt. But this is the role of education, not just in the university, but in business and in life. 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. From Harvey. He wanted to meet me and. 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 prejudged 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, with Harvey. So I decided to, 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 it, is there like set of principles why you take on the cases?

Yeah, I do. I take on, I'd like to take on hard cases and I'd like to take on the cases 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 going to collapse. That is to say, if we short circuit the rights of a client like Harvey Weinstein, then the next thing you know, someone will be at your door knocking it down and violating your rights. 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, you know, 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, who, 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.

As from a psychological perspective, just you as a human, is there fear? Is there stress from all the pressure? Because if you're facing, I mean the whole point, a difficult case, especially in the latter that you mentioned of the going against popular opinion, you have the eyes of millions potentially looking at you with anger as you try to defend these 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 you know, if people have been in jail 20, 30 years who have gotten out. And those are the sorts of cases where people praise you and that sort of thing. 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 daoist. The expression reversal is the movement of the dao. 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 were 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.

These are undergraduate students.

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 didn't, 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 encourage students to have their voices heard and to protest. I mean, that's what students do. What is vexing are the adults. The dean of the Faculty of Arts and 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, 19 year olds are upset. I need to do something. And it appeared to me that they so desired the approval of students that they were afraid to make the tough decision to. And the right decision. It really could have been an important teaching moment at home. Exactly.

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, 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 the worst thing about this, they did. The college Dean Gay and Dean Khurana commission this survey. They've never done this before. Survey from the students, you know, how do you feel at Winthrop House?

Yeah.

And the funny thing about the survey is they never released the results. Why did they never 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. Yes, 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. Got silent. Oh, we're not going to release it. The students demanded it. I demanded it. And they wouldn't release it because I am. I just. I just know in my heart of hearts that it, 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 a term unsafe. They said we felt unsafe and they bantied this term about. But 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 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 and it's just wonderful they people wrote such wonderful articles and accounts and wag 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 anyway, that was 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 its successes and its mistakes are really important for the world as a beacon of 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 going to 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 going to be in trouble. And I really hope that we weather this current political moment where 19 year olds without degrees or 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 going to require a certain courage. And hopefully in time, and I'm confident that in time administrators are going to begin to push back on these current trends. 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. 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? You know, 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 a 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 going to be in for their lives because when they get out into the quote, unquote, real world, they won't have the sorts of nets that these schools provide, safety nets that these schools provide. So to the extent that research is descriptive of a psychological feeling, that I think that the duty of the universities are to challenge people. It 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 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 a line somewhere between civil discourse and uncivil discourse. The purpose of a university is to talk difficult conversations, tough issues, talk directly and frankly, but do it civilly and, you know, so to, you know, yell and cuss at somebody and that sort of thing. Well, you know, do that on your own space, but observe the norms of civil discourse at the university. So look, I think that the presumption ought to be that the most difficult topics are appropriate to talk about at a university. That ought to be the presumption. Now, you know, should mit, for example, give its imprimatur to someone who is espousing the flat earth theory? The earth is flat. 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 going to give you this platform to tell our students that the earth is flat. But 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, is basically Coming face to face with the, with the idea that I'm not special, that I am much dumber than I thought I was, and that anything, accomplishing anything in this world requires really hard work. That's really humbling. That makes you, that, that puts you. Because I remember when I was 18 and 19 and I thought I was going to be the smartest, the best fighter, the Nobel Prize winning, you know, all those kinds of things. And then you come face to face with reality and it hurts. And it feels like there needs to be efficient mechanisms from the best universities in the world without abusing you. It's a very difficult line to walk without like 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 got kind of gotten broken, broken down because as you say, there does like I sensed fear. Everything was permeated with fear. And fear is paralyzing and fear is destructive, especially in a place that's supposed to be all above freedom of ideas.

Right.

And I, I mean, I don't know if you have anything, any thoughts to say on this whole idea of cancel culture where people, a lot of people use it. It's become political. So staying maybe outside of the world to politics is this, do you have, 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? 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. 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, robots, I was going to say. Now I know I'm venturing into your intellectual domain for future robots watching this.

No offense.

And there are many. And it's discouraging a lot of good people from getting into public life in any sort of way. Because, you know, who needs the, who needs the stress of it when in.

Some sense you're an inspiration, that you're able to withstand the pressure, the pressure of the masses. But it is 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 the. 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. The really interesting thing about Harvey Weinstein and you, 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. 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 killer. 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, you know, I'm not a determinist thinker in that way. So you come out the womb, evil. And you're destined to be that way to the extent there may be biological determinants that still require some nurture as well.

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 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. There's a, you know, life is a kind of optimization problem, sorry to take this into math, over a set of trajectories under imperfect information. So you're going to do a lot of stupid shit, to put it in technical terms. But the fraction of the trajectories that take you into bad places or into good places is really important, 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. 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, at drawing, right?

That's 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 war, you know, the trial for War Crimes. Would you take the case defending Adolf Hitler? If you don't want to answer that one. Is there a line to draw for evil, for who to not to defend?

No, I think. 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 a case? Yes. I started my career as a public defender. I represent anyone who was assigned to me. I think that is our. Our duty in private practice. I have choices, and I. I likely, based on the hypo you gave me, and I would tweak it a bit because it would have to be a us. But I get the broader point and don't want to 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. To. 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 is an anger to the justice system. There's a lot of people that feel like even though the ideal you describe is a beautiful one, it does not always operate justly. 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 everyplace else. Yeah. 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, you know, 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. Than to impact the liberty interests of any individual person. So that's a guiding principle in 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. 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 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 the system in through the process of revealing sort of 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, you know, you get really invested and really sad and. Or happy and 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 doing 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 going to 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. 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 from the criminal justice system. I think we've got a lot of work to do, and I think it'll be a while, but. But I think it's. It's doable. I mean, you know, the country. So historians will look back 300 years from now and take note of the incredible journey of diasporic Africans in the US an incredible journey from slavery to the heights of politics and business and judiciary, the academy and so forth, and 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 going to be short, but I'm saying that if we keep at it, keep getting to know each other a little better, keep enforcing laws that prohibit the sort of race based discrimination that people have experienced and provide as a society opportunities for people to thrive in this world, then I think we can see a better world. And if we see a better world, we'll see a better judicial system.

So I think.