Annie Kuo: Hello, welcome to the Discovery podcast at the Ƶ. I'm your host Annie Kuo. We're sitting here today with Professor Robert Tsai, immediately following his talk at the Ƶ faculty colloquium, about his fourth book coming out in March, it's called Demand the Impossible: One Lawyer’s Pursuit of Equal Justice for All. Demand the Impossible is about how advocates in the deep south, particularly one named Stephen Bright, resisted against the very worst features of tough on crime policies after the US Supreme Court struck down an argument for racial discrimination in the 14th amendment in the case, McCleskey v. Kemp. Robert’s flown in from snowy Boston, where he's a professor of law and law alumni scholar at Boston University. He's also a Yale Law alum, who grew up in Port Townsend, where he helped out in his parent’s café before heading to UCLA.
Welcome back to your home state, Robert.
Robert Tsai: Thanks for having me. It's great to be back.
AK: So, let’s start with this question, would you tell us about the significance of the McCleskey v. Kemp ruling in 1987?
RT: The McCleskey case is really about making it significantly harder. The Supreme Court issued this decision, it was a five four decision, and said that despite pretty powerful quantitative evidence — they looked at every death case, since Greg v. Georgia that the court reinstated the death penalty — and they still found significant racial disparities in the administration of the death penalty. So, for example, if you were an African American defendant you were significantly more likely to face the death penalty, and then that went up exponentially if you were accused of killing a white person. A couple different theories is — like one: is there sort of systemic or consistent discrimination or exercise of discretion here in ways that hurt African American defendants? That's one theory. The other theory is a systematic effort to protect white lives so that if there was a white person killed, then they would just be harsher, more likely to seek the death penalty. So, couple of theories about what's really going on. But despite this evidence, in McCleskey, you know, the court says that's not going to be enough to block the death penalty.
AK: Yeah.
RT: You have to show discrimination in the particular case. So, in other words, they really are slamming the door on systemic racism cases in the administration of the death penalty.
AK: So, your book, your upcoming book is a historical thriller about the decline of the death penalty today. And it's framed through the story of one man's career, Stephen Bright, and four Supreme Court cases that he argued following a big decision that was initially devastating to civil rights advocates. Among those advocates that was referred to as the quote, “Dred Scott decision of our time” end quote, and even compared to Plessy v. Ferguson. So, there's many ways to tell the story of the ideas and advocacy that curb the use of the death penalty. What drew you to this particular attorney Stephen Bright?
RT: Well, what's fascinating about Steve Bright as a historical figure is just how he's in the right place where so many important political events and legal events are happening at the same time. And then he gets to sort of play a role in shaping what the future of the law might look like. So, I was very much attracted to trying to tell a story about legal change in the United States in these important years. So, if you think about the beginning, say of mass incarceration, the early decades of mass incarceration, we’re really talking about the late 60s and early 70s. And then things really ramp up in a federal way in the 80s, and the 90s, when you have a kind of convergence among members of both parties to be just as tough as possible. And foremost among the ways that one showed that one was tough on crime was to get people death sentences. And a lot of people were in on this from politicians to judges, to prosecutors, and so forth.
So, Steve Bright is, kind of, in the right place at the right time. He's someone who is trained as a legal aid lawyer, and then as a public defender. And then he takes his first few capital cases for the first time when the Supreme Court decides in a case called Greg v. Georgia, that after a brief moratorium, states could go ahead and get people death sentences and execute them. But the problem is at that moment, when the floodgates open, people are getting on death row, but they don't have lawyers for their appeals.
Oftentimes, the kinds of cases people are getting particularly deep south were very brief cases, where you might have a court-appointed lawyer who didn't know much of criminal law even, given very little resources. And so, you had very quick trials. So, you had this sort of desperate search on the part of people who cared about these issues to try to bring talent in from all over the country, desperate phone calls to places like D.C. were Bright was to Chicago to New York to try to lure people to take on representation of these cases.
So, eventually, he goes down to Atlanta, and he's lured down to help keep an organization afloat. And really to try to develop a systematic approach to representing poor people who are under death sentence are facing the death penalty in Georgia and elsewhere. And also, he runs this organization for almost 40 years. So, he's kind of at Ground Zero, to be able to observe all of these changes in American law and American politics during these years. And so that's kind why I decided that he would be great to be able to tell the story through and then when I finally convinced him to participate and helped me out a little bit, there was no stopping us.
AK: So, let's touch on another attorney who's kind of in the same storyline. Tell us briefly about the legacy of Bryan Stevenson of Just Mercy and how he was influenced by Stephen Bright, and he was, Stevenson was shattered by the McCleskey ruling.
RT: So, Bryan Stevenson of courses in an incredible legal thinker, social justice advocate in his own right, runs the Equal Justice Initiative, built that thing from scratch, MacArthur Genius Award, et cetera, et cetera. But if you go back far enough, he was once a somewhat demoralized second year Harvard law student, didn't know what he wants to do with his life, cared about the world. And you know, if you flipped to the beginning of his bestselling book Just Mercy he talks about taking a class where one of the requirements is that you have to, as a student, volunteer for a social justice organization for a few months. And so, he looks at the list of organizations, he picks one out, and it's Steve Bright’s organization.
So, what Stevenson says in the early part of his book Just Mercy is when he meets Bright — Stevenson is African-American, Steve Bright is a white guy who grew up in Kentucky — despite their clear cultural, racial differences, he says Bright is the first person, even after knowing all these Harvard law professors, Bright is the first person he's met in his life who embodied a commitment to equal justice. He would do anything to represent poor people, no matter what they were facing, and he had a track record already even then, that he could talk about. And so that kind of inspiration and the early work Stevenson did as an intern — so the first thing he does is Bright sends him to go meet a client on death row. You know, kind of blows his mind what it's like to actually be able to jump through all the hoops to get into a prison to actually meet a client. And the client is very despondent, and, you know, why haven't you seen me and all this kind of stuff, and what's going on with my case, you know. So, he kind of is thrown into the deep end, but his eyes are open for the first time, he decides this is the kind of work he wants to do to help people in this situation. So, you know, in a way, my book, which has a little bit of this, but talks a lot about Bright’s career is a way of giving people who know something about Stevenson's incredible career, a little bit of a prequel, you know.
So, if you think about something we don't often think about, but absolutely necessary is the intergenerational aspect of, you know, social justice struggle. There has to be someone who's done this stuff before, you know, where do you learn?
AK: Whose shoulders do you stand on?
RT: Yeah, whose shoulders do you stand on? How do you learn what worked, how not to make the same mistakes that your predecessors made? And there's something that was intellectually exciting to me, when this opportunity arose to be able to write about Bright, to know that he mentored someone like Stevenson, but also that he had contact with and was able to mentor a whole generation of advocates, people he recruited to come to the South for a few years, to work for a pittance, to help people who are either under sentence of death. They also did other kinds of cases. They also had a part of the center that generally worked to improve the conditions in prisons and jails. And people come and do that kind of work. And people have moved on from their time at the center, whether as an intern or as a staff attorney, and founded their own organizations.
AK: Let's make sure that we name the center, the Southern Center for Human Rights, which is that organization that Steve Bright, kind of, activated, right, as a coalition of advocates and activists, how would you —?
RT: There's an organization called SPDC at the time, it was called the Southern Prisoners Defense Committee. And this organization, what we might call the precursor to the Southern Center for Human Rights, was initially founded by clergy who had fought racial segregation in the deep south. And then they became concerned after, you know, the first phase of that work was completed, they were worried about what they were seeing in prisons and jails. And so, the way I talked about this to people is they were worried about the places that the Civil Rights Movement had bypassed. So, in these other areas of life — schools, workplaces and stuff — you could start to see changes, but not in southern prisons and not in southern courtrooms. And so, these clergy got together, and they founded this organization that was supposed to do some of this work, representing prisoners who were oftentimes people of color in the deep south. And the problem is that that organization never really got off the ground and was literally on the verge of bankruptcy. You know, lawyers were leaving, they had almost no money. And so, someone got the bright idea to call up this guy, Steve Bright, who had just started handling death penalty cases, who was still living in Washington, DC at the time and see if they could convince him to come down, relocate and do this. And incredibly, he decides to like leave the place that he had been living for years where all of his adult friends were, at the time, pack his stuff. He had a few close friends who helped pack his U-Haul. And he actually convinced a couple of his friends to come down with him who were also lawyers. Now, they only agreed coming up for a limited period of time to kind of help him get the thing going. But that's what happened. He literally packed up a U haul, moved down to Atlanta, helped bring resources that were kind of scattered around in various places to Atlanta. And that was the beginning of really this period of SPDC, where they were able to hire people like Bryan Stevenson, and others.
AK: Wow. So, we're all standing on someone's shoulders organizationally.
RT: Indeed.
AK: And that was a bright idea to bring in Bright. I love that.
Your book is partitioned into four major Supreme Court cases that Bright argued. What do those four cases teach about the evolution of the death penalty, and strategies in cause lawyering?
RT: You're absolutely right. The spine of the book is comprised of the four cases he argued in the United States Supreme Court on behalf of a condemned person, person under death sentence. And the first case he argues in the late 80s that's about showcasing, reminding us, teaching us that the criminal justice system operates at a local level. On a lot of issues, we've gotten used to thinking that there are national problems that can always be solved by someone at the national level, or through the passage of a single law or a whisk of the president's pen or something. But this is rarely the case when it comes to criminal justice issues. The kinds of laws, the administration laws happen at the local level. And so that first case, involves a particular county in Georgia where some evidence is discovered that they have been systematically underrepresenting the number of women and Black people in jury pools. And they've been doing this intentionally.
So, why have they been doing that? One theory is they've been doing that, because then, at least in the criminal cases in that county, it's easier for prosecutors to manufacture all white juries. So, you already start with a low number, but it's not so low that that question can be litigated. And you could win under existing Supreme Court decisions. But it's low enough that once you get to an actual criminal case, it'd be easy to then for a prosecutor to bounce off the handful of black people who might show up in the jury pool. So, that case is about that piece of evidence. And whether that piece of evidence can even be considered at a late date when it shows up when it's discovered to save a man's life. And this goes all the way up to the Supreme Court of the United States.
The next two cases he argues in the Supreme Court also raised questions of racial equality, racial discrimination. They involve this practice that, you know, once the county has created jury pools, and those are the lists that they're used to call people in to serve, then you have jury selection. And so, anyone who's actually been to a trial knows that, you know, you got to sit through this, and you answer questions and so forth. You might be excused; you might be seated for a jury trial. Especially in criminal cases, this traditional practice of allowing each side to have a certain number of what's called peremptory strikes, where for no reason whatsoever, you could just eliminate a juror. The problem with that kind of discretion is, what if it's abused? What if it's abused by, for example, a prosecutor who wants to argue in front of an all-white jury? So, the prosecutor’s got a Black defendant thinks it'll be easier to win the case if he's got an all-white jury, especially if the victim was white.
Those next two cases involve that. The court, this is going to shock some people, but didn't always say that was a violation of the equal protection clause of the 14th Amendment. But eventually, in a case called Batson v. Kentucky said if this happens even to a single juror and single case, yeah, that's a problem. That's a violation of the Constitution.
The difficulty has always been improving it. How do you prove that someone who doesn't have to give a reason at all, right, bounce people out of the jury pool because of their race? Very challenging thing. So, these next two cases are about how tricky it really is. You know, what are the rules governing that process? If someone's defense lawyer jumps and says “Your Honor, I object. That's the third black juror that has been removed by the prosecutor.” You know, how is the judge supposed to rule there? What's the judge was to look at? We're told that if that objection is made, then the prosecutor, the other side, has to give a reason that isn't about race. Oh, the person looked fishy. The person looked unknowledgeable, couldn't pay attention. They’re supposed to give some reason that has nothing to do with their race. And then the judge is supposed to make a finding, like okay, it was because of the person's race or not because of the person’s race. Well, let's assume the judge says no, it's not because the person's race, but every time the prosecutor has removed someone, that person just happened to have been African American. That raises the questions, right, of when do you say the judge is wrong? Right? When can you overturn this finding at jury selection. And Bright’s next two cases involve those kinds of really complicated issues.
His last case, his fourth case, the one I finished with, but it's also how I start the book. I actually start the book by putting him at the podium arguing his fourth and final case, kind of toward the end of his legal career. And it's the most challenging case that he's ever argued. And part of that's because the Supreme Court itself has changed, become more conservative overtime. More hostile to the kinds of arguments he's and others have been making. But it's also because it deals with the issue of intellectual disability with lots of people have lots of problems with. You know, how disabled does someone have to be before it becomes unconstitutional, immoral to kill somebody. Those are not easy questions to answer. But that final case poses not just that question, but what do we owe someone who says or whose lawyer says, because often they can say it, I need help.
That case unfolded this way. The judge is about to sentence this individual who had been convicted of a death-eligible crime. And then at the last minute, a report shows up from the state's actual expert who has examined him. And it looks like he's got some kind of brain damage, organic brain damage. And the defense lawyer, the defendant’s lawyer says, I don't fully understand this report. I don’t know how extensive the brain damage is, what he understands, doesn't understand, how much he can control his body and so forth. I could use some help. I need an expert. And the judge says, “It's too late for that. Mr. McWilliams, please stand up.” And then he sentences him to death right there. So, that's the issue in this final case, which is, what do we owe a person who might have evidence of brain damage, is not given access to an expert to help probe the extent of the damage and maybe even explain the damage to someone who would be deciding what kind of punishment he deserves? And I think those are some of the hardest questions that a community can wrestle it.
AK: Our final question is, as a flavor or taste of the efforts made the double down efforts made by this group of advocates, led by Bright, can you tell us about the ironic effects and unintended consequences that the McCleskey ruling had in mobilizing that powerhouse group?
RT: It's super interesting to me. I hope it's inspiring for those who read this article, who read this part of the book. You know, really what it has to do is how do we react to these moments of deep political or legal demoralization? And, you know, you look at the Supreme Court, they issue a decision, for example, they don't they say we're not going to develop partisan gerrymandering, or they reverse a case like Roe v. Wade. This is deeply demoralizing to a sector of the American public who has come to depend on courts to some extent, depend on rights being existence. To order lives and so forth, and you have a similar dynamic playing out in the late 80s with this case McCleskey v. Camp, as well as with some of these other cases where the court with its changing complexion is narrowing the legal pathways for dealing with the inequities in the criminal justice system. But what's really fascinating to me, and I think also hopefully inspirational to others is, while a lot of a lot of other people sort of give up making the big structural racism arguments, because it's just become now exponentially more difficult to do it. After McCleskey, you know, bright, and some of his staff, attorneys and volunteers, they don't give that up. And what they try to do is they try to make those arguments on a smaller scale. So, the Supreme Court says, “We can't just come up with one study and show these disparities across the entire state of Georgia, and that they'll somehow shut down the death penalty.” Fine. They're going to make us go jurisdiction by jurisdiction. And we're going to do that. We're going to go into the jurisdictions where we think that prosecutors are the most aggressive, maybe have abused their discretion, bouncing black people off juries, not wanting competent lawyers appointed for them because it's just easier and faster to get them to death row. We're going to show creatively and aggressively that there is in fact systemic racism in these places. So, “A” we're not going to give up, “B” we're going to double down on the approach, even though someone like Justice Powell may have expected that the response would be, you know, once you make it harder, legally, you know, you stop making these kinds of arguments.
AK: You go away.
RT: Right, you know, go away. Go represent your client in this one case, and don't worry about anybody else's clients.
AK: But instead, they went there, they embrace the things that other people might have avoided.
RT: Yeah, and not only that. They went after prosecutors, aggressively. They went after them, they tried to show that they were racist over a series of cases, maybe even over the course of an entire career. They argued that, if that was happening in one prosecutor’s cases, it might have been because they were trained that way. And so other cases and other prosecutors’ case files may have been tainted. They try to bounce at times the whole prosecutor's office from cases. They try to bounce judges from cases if judges were too tolerant — they let the prosecutor do whatever the prosecutor wanted in death cases. In all these areas, I tried to show that these advocates didn't give up on racism claims. They didn't give up on structural racism claims, they just did it on a smaller scale. And then when they succeeded in showing this was happening, then they showed everybody in the world. And they repeated it over and over and they said, “if it's happening over here, this can't be the only place it's happening. It's got to be happening elsewhere, too.” And that's how I think they start to change the way that average people are thinking about the criminal justice system.
AK: Wow, I'm just thinking about our Professor Mary fan, when she was moderating the colloquium, she quoted what they would sometimes say, to the judge or to prosecutor, like “You're out of line!”
RT: There are many moments. I spent a lot of time reading transcripts because I think this aspect of my work is legal history. And so, it matters to me a great deal that I'm capturing things correctly. So, I spent a lot of time reading over these dusty trial transcripts, if I can get my hands on them. And some of these cases, people couldn't remember the case names, but they remember that Bright did something incredibly swashbuckling, like, had a prosecutor under oath and was accusing him of racism in all these cases, but like, nobody could remember the name of the case. And so, I finally found some of these cases where this was happening. And I was able to take what I found and try to recreate it for the readers here. And you know, stuff like this, you know, just to give you a taste of it is like, “Mr. Briley,” one of the prosecutors on the other side of somebody's case, “Isn't it true that in this case you used 18 of 18 jury strikes against black people?” And then prosecutor would say something like, “Well, I don't remember.” And then he was like, “Isn't it true that in this other case you had you used 17 of 17 jury strikes?” It was almost something out of like Law & order as I'm reading this transcript, or some other kind of legal thriller.
And so, I tried to recreate faithfully, I think at least, a little bit of what was happening in these cases, but it's pretty mind blowing, and obviously, very aggressive lawyering. And also, very creative in the kinds of ways that they found this evidence because there's no study that they could just like dig up. Someone had to go into all these old case files of these prosecutors, go into the county, find the case files. They had to figure out the names of jurors who were excused. Not easy to do. And find the races and sex of the jurors who were excused and those who were kept on, and then to see if there were any kind of patterns that looked very suspicious. All that took incredible amount of legwork.
AK: That's a good kind of relentless.
RT: Yeah, absolutely. Maybe a John Grisham kind of story. But yeah, it's the closest thing that I've experienced in, you know, any research I've done that made me think that this could be something that could be dramatized that way.
AK: Well, we'll be watching to see the outcome of this book here that could be the next legal thriller that the listener would read. If anyone's interested in criminal justice reform, you might want to check this out.
Robert Tsai, Professor of Law at Boston University, his book Demand the Impossible is out March 12. You can preorder it on Amazon, Barnes & Noble, Bam! and IndieBound.
Thanks, Robert, for being here.
RT: Thanks for having me back.
