The Watch | Opinion
September 5, 2017 at 5:52 PM
Longtime criminal defense attorney Sam Dalton died this morning. He likely knew more about Louisiana’s criminal-justice system than anyone alive. He was a walking institution, a wry philosopher and a titan of justice.
Dalton practiced criminal law in the state for more than 60 years. He represented the indigent, the outcast and the condemned. He was also an outspoken supporter of the civil rights movement and championed criminal-justice reform for decades before it was popular. Toward the end of his life, he led an effort to rein in the state’s rampant prosecutorial misconduct.
I interviewed Dalton back in 2013. He was charming, graceful and, to my delight, could unleash a pretty wicked sense of humor. (The “welcome mat” outside his office read: Come Back With a Warrant.)
His answer to this question is a good example:
Where do you come down in the debate between electing judges and appointing them?
I’m against electing judges. I’m also against appointing them.
He then elaborated:
I think every judge should handle both civil and criminal cases. When you split up cases like that, you immediately start to see fighting over budgets. But more importantly, there’s something important and necessary about having judges handle a wide variety of cases. It gives them some worldliness, some context and perspective. Criminal courts judges can often become hardened to the misfortunes of people. They can lose their sense of empathy.
You have to remember that nearly all judges are former prosecutors. There’s an undercurrent of alliance between judges and prosecutors, so there’s a certain collegiality there. They run in the same social circles. They attend the same Christmas parties.
I then asked Dalton to name the most urgent problem in the criminal-justice system today. He answered, “A true appreciation of what’s at stake. To take someone’s freedom — that’s the ultimate deprivation a government can inflict on a citizen, short of taking his life. Everyone in the criminal-justice system — judges, prosecutors, police, criminal defense lawyers — can get lost in the day-to-day and lose sight of what’s really going on in these courtrooms.” He added, “But that’s only one side of the problem. The criminal-justice system today also fails to do what it’s designed to do, which is to protect us from dangerous people.”
I asked if he was referring to the fact that every time an innocent person is convicted, a guilty person goes free. He wasn’t. He was referring to something much more profound.
We focus too much on retribution, and too little on protecting society from harm.
Let me give you an example. Two men commit an armed robbery on the same night. The first man is a father of four. His family is about to be evicted. Or if you want to make him less sympathetic, let’s say he’s a drug addict who needs money to buy his next fix. He’s nervous, he’s sweaty. He’s desperate, and he’s panicky. He approaches his victim and roughly accosts him. He puts his gun to the victim’s head. He’s screaming profanities. He screams out for his victim’s wallet, then screams louder and threatens the victim for moving too slowly. He takes his money and runs off. His victim is terribly frightened.
In the second scenario, our mugger is calm, cool, and methodical. He approaches his victim from the front, puts a light hand on the victim’s back, and slowly and unemotionally explains that he has a gun in his coat pocket. He tells his victim that if he hands over his wallet, no one will get hurt, and they can both be on their way. The victim hands it over. The mugger walks off. The victim is angry at just having been robbed, but he isn’t terrified. And he was never in real fear for his life.
Which of the two armed robbers is likely to get the longer sentence? Almost certainly the first one. Which of the two is the bigger threat to society? Unquestionably the second one. In fact, the second one is not only a likely career criminal, he’s more likely to actually kill someone. The first one is scared because he knows he’s doing something wrong. He feels some empathy for his victim. He’s committing a crime of necessity. That isn’t to say it excuses him. But his aggression comes from fear. The second mugger is incapable of empathy, or has learned to turn it off. He’s cold-blooded.
So you see we impose punishment based on fear and a desire for retribution, not based on rational evaluations of what crimes and criminals are most dangerous.
That’s an incredibly insightful observation. Retributive justice isn’t just cruel and inhumane to offenders; our desire for vengeance also makes for a more dangerous society.
As you might expect, Dalton was immensely skeptical of power. I asked him how conscientious prosecutors and judges can guard against power’s corrupting nature. His answer was fascinating.
I think that instead of collecting the little day-to-day accoutrements of power as you ascend in office, you should lose them. The most powerful man in the building should have the worst parking space. The district attorney should have the longest walk to the office. Twice a day, at least, he’d be reminded of his humanity.
There’s also the distribution of chairs — powerful people have the soft, cushy chairs. The chairs get harder and less comfortable as you go down the ladder. Whenever a new regime takes office, there’s always a rearranging of the chairs. If you want to be a conscientious leader, give yourself the hardest chair.
These are little things, I know. But don’t underestimate them. Powerful people insulate themselves from humility — not just in terms of official accountability, but in their immediate surroundings. But they’re the ones most in need of it. Reminding yourself that you’re human and capable of mistakes is important in any line of work. But it’s especially important when you hold lives in your hands . . .
[But] we keep getting back to the fundamental problem, which is that the ideal person for a powerful position is someone whose character makes them very reluctant to wield power. And those people are obviously uninterested in seeking powerful positions. I don’t know how you change that.
He also had some advice for other criminal defense attorneys.
What does it take to be a good criminal defense attorney?
Commitment. I haven’t been on time for supper in 50 years. My wife should have divorced me years ago.
It seems like the job would also require a high threshold for disappointment. Aren’t most criminal defense attorneys pretty cynical?
Oh, no. I think just the opposite. I always go back to the joke about the 11-year-old-twins. One of the twins was an eternal optimist. He only saw the good in everything, which made his parents fear that he’d be easily manipulated. His brother was an eternal pessimist. Only saw the bad in people, which his parents feared would make him sad and lonely. So they took the boys to a psychiatrist, who proposed an experiment. Per the psychiatrist’s advice, the following Christmas the parents bought the pessimistic boy every toy he could possibly want. The optimistic boy woke up Christmas morning to several piles of horse manure. A week later, they took the boys back to the psychiatrist. He asked the pessimistic boy if had a good Christmas.
“It was terrible,” he said. “I got all of these brand new toys, but I can’t play with any of them because I’m afraid I’ll break them.”
The psychiatrist then posted the same question to the optimistic boy. “It was great!” he exclaimed. “I got a pony! I just haven’t found him yet!”
Criminal defense attorneys deal with a lot of horse—-. I think the thing that keeps us going — or at least the thing that has kept me going — is knowing that with all that s—, sooner or later you’re going to find a pony.
So what are the ponies? Discovering wrongful convictions? Freeing an innocent person from death row?
Those are all important, yes. But those are rare. There are smaller, more attainable ponies. Getting evidence suppressed because you convinced a judge that a cop broke the rules. Getting a conviction overturned after you’ve shown that a prosecutor withheld evidence. Even in cases where the charges are relatively minor, there’s great satisfaction in knowing that you forced the state to play by the rules, that you successfully held a powerful person to account.
Most of the people most criminal defense attorneys represent are guilty. And most of their cases will end with convictions. Does that ever weigh on you — knowing that you’ll fail far more than you’ll succeed?
I think it’s a mistake for a defense attorney to define success by how many acquittals he wins. I define it by whether I’ve forced the state to do its job, and to do it fairly and in compliance with the Constitution.
But let me say something about convictions. Convictions are important. And it’s important for attorneys to represent even clearly guilty people. There’s the obvious reason — that everyone deserves a fair trial.
But here’s a less obvious reason: Ask yourself, what contribution do convictions make to criminal case law? The answer is that they’re responsible for almost all of it. When you’re acquitted, you don’t appeal. Only convictions are appealed. And it’s on appeal that you argue that your client’s rights were violated. Appeals are where the appellate courts enforce the Constitution. At least where they’re supposed to. It’s only because someone was convicted that we have the rules in place today that protect the accused. There’s a kind of beautiful symmetry to that. It’s because of convictions that we have the rules that protect the innocent.
According to stereotype, the typical criminal defense attorney is amoral, cruel and opportunistic — when a killer gets off on a technicality (which almost never happens, by the way), it’s a defense attorney who argued the technicality. Criminal defense attorneys are rudderless, willing to defend the worst among us just to feed their own egos. Pop culture feeds the cliche. The typical defense attorney in a TV procedural isn’t Perry Mason, dramatically freeing the innocent from false charges with a last-minute revelation. He (and on TV, it’s usually a he) is more typically a disheveled mess, a little sleazy, probably divorced, probably an alcoholic. Cops hate these lawyers. Prosecutors hate them. Sometimes even defendants hate them, seeing them less as advocates and more as just cogs in the machine.
In truth, the typical criminal defense attorney is neither Perry Mason nor what you more commonly see on TV today. Most of his or her clients are guilty — though most of the time, not of the crimes for which they’ve been charged. Most will never win a dramatic exoneration in a murder case. It’s more about tiny victories. You get a client out from charges that may have been accurate, but for which the punishment would have been wholly disproportionate and life-altering. Or maybe you just get the charges reduced to what your client actually did. Every now and then, maybe you expose a bad cop or get charges thrown out entirely. Day to day, it’s less about conquest in the courtroom than about negotiating with the enemy — fewer than 10 percent of felony cases go to trial. The rest are hashed out in plea bargaining.
Mostly, it’s a tedious and thankless job. Most criminal defense attorneys are overworked and underpaid. Most didn’t go to elite law schools but know the ins and outs of their particular jurisdiction better than anyone who did. The old joke is that everyone hates criminal defense attorneys until they need one. We ought to get beyond that. They’re an indispensable part of the criminal-justice system.
Supreme Court Justice Hugo Black wrote that every criminal defendant has the “absolute, unqualified right to compel the State to investigate its own case, find its own witnesses, prove its own facts, and convince the jury through its own resources. Throughout the process, the defendant has a fundamental right to remain silent, in effect challenging the State at every point to ‘Prove it!’ ” Defense attorneys are the people who mount those challenges. They’re the people who force the government to do its job. Without them, we’d have no rights. It would be far too easy to put people in prison.
Sam Dalton was by all accounts one of the best. He knew the system, knew its flaws, knew those flaws were probably unfixable, yet still operated within that system anyway — and still tried to fix it. There was no other option.
Perhaps most importantly, Dalton served as counsel to the condemned. It’s hard to imagine a job in the legal profession more difficult than defending someone in a death-penalty case. The judge will likely be a former prosecutor. The prosecutor may have withheld evidence that could help your client, but you likely won’t find out until it’s too late, and the prosecutor will not be held accountable for it. The state will outspend you, and it won’t even be close. The jury will be death-qualified, which means it will be composed of people who aren’t morally opposed to the death penalty. Of course, to remove those who oppose the death penalty from a jury also removes the jurors more likely to be skeptical of cops, prosecutors and the system in general. It means the jury will be less skeptical, more deferential to power . . . and more likely to dislike defense attorneys.
The emotional toll must be exhausting. And that’s merely for the cases where the defendant is likely guilty. The stress of defending someone you believe is innocent is too hard to comprehend. (For every three people Louisiana has executed since 1976, one person sentenced to die was later exonerated.) We need attorneys willing to defend people accused of murder. Without them, the system wouldn’t function. Those who take such cases deserve admiration, not scorn. It’s a hell of a sacrifice.
Over the course of his career, Dalton defended took more than 300 death-penalty cases. He spared 16 people from execution. He took on the burden of those cases not because he thought they were winnable, but because justice demanded that the fight be waged. Justice demanded there be a fight.
“We have to do everything we can to make it harder for the government to convict the guilty,” he told me in a followup interview in 2014. “We have to do it so it’s never easy to convict the innocent.”
Last June, Louisiana passed the first criminal-justice reform package in — well, possibly ever. It was modest. At best, it will bring the state from the top in incarceration in the country . . . to second in incarcerations. But in that it nudged the pendulum in the opposite direction — no matter how slightly — it was historic. It’s nice that Sam Dalton lived to see it.
I learned of Dalton’s death from Ben Cohen, an Ohio-based attorney who has both tried numerous cases in Louisiana and worked with Dalton to reform prosecutorial misconduct in the state.
In an email, Cohen summed up Dalton’s death rather succintly: “The world will miss his fierceness.”