 Good morning everybody. Aloha. My name is Mark Shklav. I am the host of Law Across the Sea. And today our program is going to be a little different from prior programs. We're going to focus on criminal law and defense. My guest is Ken Lawson, who is a professor at William S. Richardson School of Law, University of Hawaii. And he teaches criminal law and procedure, professional responsibility, evidence. He's the co-director of the Innocence Project. He recently traveled to Hong Kong where he spoke to Chinese criminal defense attorneys about effective representation in death penalty cases and how to save a life. We will discuss criminal law today and sentencing and maybe a little bit about how he got involved in criminal law and what has changed since then, what he discovered in Hong Kong. Ken, welcome. Good to see you. Good to see you, Mark. Thanks for having me, brother. I appreciate it. Our pleasure. Our pleasure. I'd like to ask you a little bit about your background. What drew you to criminal law? We were talking earlier about how I used to get appointed to do some cases. I didn't really choose to do those cases. I got appointed and I liked doing them. I enjoyed doing them. Although they were very stressful, some criminal cases. Some days they used to appoint lawyers to represent defendants in criminal cases. But how did you get involved in it? Did you choose it or did it choose you? I always wanted to be a criminal defense attorney. I think there has to be, in order for people to be good at criminal defense, there has to be some rebel involved. At least that was for me. There was a rebel in me that hated bullies. There was always something in me that pulled me to try to help those who couldn't help themselves, the weaker person. So I was never a guy that beat up on somebody weaker than me. In fact, that incensed me when I seen another person beating up on someone who couldn't defend themselves. That was an attraction from childhood on up. But I started out doing corporate law. I worked for the largest law firm in the city of Cincinnati. Time, Sustainance and Hollister. And back then, my whole thought was, you know what, if I just make a lot of money, then I'll be happy. Because somehow happiness was equated with having a bunch of money, right? Having nice things. And so I kept thinking, well, you know, everybody kept saying, do corporate law. That's where the money is. Why would you want to go to law school and do criminal law? You don't make a lot of money. So I'm like, well, I'll try to do corporate law. And if I make a lot of money, at least I'll be happy doing it. So I did that for four years. As I tell my students, after four years, I had the house, the cars, the money, everything. And I still felt empty inside. You know, I wasn't doing what I truly loved to do. And I think Mark Twain said it best, the two most important days in your life are the day you're born, the day you find out why. Right? Why are you here? What are you here on earth to do, right? And so I can't explain it to anybody else. I just knew, even though I had not tried a case in criminal law, that I was going to be a good criminal defense lawyer. So I left the law firm. I only had like $2,000 in the bank. And so I'm starting my own practice, right? I got a good mentor. Within a year, I had a big murder case. It was on court TV back then. They don't have court TV anymore, right? So that kind of put me in, you know, got me out of there with some free advertising. Put you in the limelight. And then I ended up representing people like Dionne Sanders, Peter Frampton. A lot of, you know, I became very good at it. And so, you know, I didn't, I don't know how far you want me to go on it. But anyway, I ended up getting addicted to painkillers, becoming a drug addict, right? At the height of my career. And then came crashing down after 10 years of addiction to drugs and alcohol, right? And that's been a federal penitentiary since the 24 months in the federal penitentiary. I already lost everything, right, in my mind. And so in 2000, this all happened in 2007. My sobriety dates February 2nd, 2007. I've been sober since then. No mood, alcohol, drink, or a drug. And so I started doing alcoholics anonymous and I joined the lawyer's assistance program in Ohio. And then my wife found a position out here because we had lost everything, right? And so she found a job out here at Y9 Comp. And so I still had a criminal case pending in Ohio. So I would fly out here for a few weeks and I'd fly back for my criminal case in Cincinnati, never knowing when I came, when I left here if I was coming back or going to prison. And when I came out here, the judges and lawyer's assistance program, I had to go to meetings, right, according to the Bar Association in Ohio. So I would go to meetings and get my sheets on. So I went to the meeting down there and I told my story to the director of the program there. And then he said, hey, do you want to go tell your story to the law students at UH? And I said, no, I don't want to go tell my story to you, right? It's one thing, you know, if you go to an AA meeting, right, you tell your story and people look at you like, oh man, is that all you did? Let me tell you what I did, right? You go tell your story to other people that haven't had an addiction to alcoholism. They're like, are you out of your mind? So I was like, no, I don't want to go tell you. And so I called my sponsor from alcoholics anonymous back in Ohio. I said, man, they want me to go up here and talk to these people, these law students. I don't, you know, I'm afraid to go tell them my story. And he said, look, what did I tell you, right? When you got sober, that your job is to be a service to God and His children. God's job is to run your life. Why don't you go up there and see if you can help somebody, give them without expecting nothing in return. So I went and talked to Professor Randall Ross at this class. And then I went to prison in the next month, I was sent to 24 months. And I remember the judge asking me, and they quoted this in the newspaper. She said, you want to talk about whether or not I should give you probation or prison? And I said, you know what, at this point I was two years sober, right? And I didn't have to no longer find out what was taking the fill of that hole in my soul that I was trying to fill with all those material things. And I told her, I said, whatever you're going to tell me, it's going to be the best thing that ever happened to me. You tell me probation is going to be the best thing. You tell me prison is going to be the best thing. I'm waiting on you to tell me. I'm not a religious person, but I was really trusting God at this point. Because some of the best things that happened to me helped get me into penitentiary. Some of the things that I thought had been the worst things that happened in my life, looking back, it turned out to be the best things that could ever happen. And so I've come to learn, I'm the worst at judging what's good and bad in my life. Because when I'm going through it, it may seem like it's bad. But not until I get to the other side and I start connecting them dots, I'm like, oh my God, that was the best thing that ever happened. You don't see the connection until you have to stand back and look. And so there's certain things that I have to go through in order to get to where I need to be. And I always took the path of least resistance. See, I want to get through life without feeling no pain. I want to get through life without no commotion. And that's not what life is. It's more of a journey, not a destination. Let me go back a little bit. So when you started practicing law, you got some publicity. You got some cases. What type of cases, generally, were you doing? No, I did civil rights cases. Also, police misconduct cases, personal injury cases. Maybe 20% of my practice. The majority of it was criminal defense work. So I did everything from death penalty cases on down to disorderly conduct speeding tickets also. Wow, everything. Yeah, that's interesting. And when you get these cases, I mean, when you get a murder case, okay, now you're talking about hindsight too. But in those days, what did you ask your murder defendant client? I wanted to know the truth. See, people always ask that question. Hey, man, let me ask you this question as a lawyer. Do you ask your client to tell you the truth? And some lawyers really do say, no, I don't want to know. I wanted to know. Like, I would tell my client and most smart criminal defendants who had been in and out of the system, they would tell their lawyer the truth. Because if I know what the truth is, and I know when everybody else on that witness stand is lying, but if you lying to me and they lying, it's hard for me to cross-examine. But if you sitting there telling me, look, man, I did it this way, but it ain't what she's saying, or it's not what he's saying. Here's what really happened, and I can cross-examine on that. So I wanted to know. Now, I cannot ethically put you on the stand after you said that you committed the crime and have you say you did it. So I would always take the case with an eye on winning through cross-examination. Very seldom did I put witnesses on the stand. Very seldom did I present a defense. My whole thing was I should be able to win with your case by raising reasonable doubt. So you were defending a lot of people for various crimes. You were doing well. Now, what led you down that path? What led you down that path? I think that path started way before I started doing well. I think that path started from childhood, and I can't remember when it started, but my whole thought, like I said, when I was younger, it's not so much what happened to me that I turned out the way I did it in life, but it's where I reacted to life. And at some point when I was young, I really did think, you know what happens is something that's going to come when I get here, when I get there. So it's never enjoyed the journey. It's never been in a moment, right? Life was. There's two things here. There's the end game, and then there's the, when you're in it, is what I hear you're telling me about. Is that right? Well, it's almost like, you know what? I'll be happy once I get this new car. Man, when I get this job, I'll get this promotion, and I'll be happy. Man, if my wife straightens up, then I'll be happy. If these kids would just act the way I... I needed everybody else around me to act a certain way in order for me to be okay in here, right? And that's just the backwards way of living, but I don't see it like that. I really do see, you know, that I need an education. I need a lot of money and all that, and when I get this, I'll be happy. And as I tell others when I speak, if money and having material things was the end of all that happiness, I wouldn't have to watch Whitney Houston dying of a cocaine overdose in a bathtub in Vegas, or read about Prince dying in his home elevator with Percocess in his pocket, right? Or Michael Jackson paying the doctor to stand next to him pumping stuff in his van so he can sleep at night. So if money was the end of it, so it can't be money. Can't be money. Right? And there's nothing wrong with having a lot of money before a man like me, I thought it was going to fix me. Right. Money's good. I mean, we all like money, okay? Right. Let's be clear. I don't have anything against money, but I hear what you're saying. I mean, you have clients who, all the money in the world did them no good. Right. You have a successful career. All the money means nothing. Right. And so the more that I got or those things that I thought was going to make me happy, the more the sicker I got spiritually and mentally. Right. Because I'm thinking, I thought if I got this house, I'd be happy. And I got everything that I wanted and there's still this hole in my soul. You know? And so when I heard my shoulder lifting weights, and you see the epidemic with heroin now, right? And painkillers. So I tore my rotator cuff and the doctor gave me Percocess. And then it started from there and I became addicted to painkillers, oxycontin, fentanyl, all that stuff that you read about, right? And it was horrible, man. I'm telling you to be struggling like that. And I got to a point where I didn't want to live and I didn't want to die. Well, let me ask you, we're going to take a break in a minute, but I want to ask you a little bit about what you learned in Hong Kong and whether there was any similarities or anything you can tell us about, I mean, we're all humans. And maybe just being in Hong Kong doesn't make too much of a difference. I mean, you came across the sea from Cincinnati to Hawaii. Right. And now you've gone across the sea to Hong Kong. I want to ask you after our break, what did you learn? What are the differences? That's a good question. All right, thank you. We'll be right back. Clean Energy Advocate and Community Outreach Specialist. And on Power Up Hawaii, we come together to talk about how can Hawaii walk towards a clean, renewable and just energy future? To do that, we talk to stakeholders all over the spectrum, from clean energy technology folks to community groups to politicians to regulators to the utility. So please join us Tuesdays at one o'clock for Power Up Hawaii. I just walked by and I said, what's happening, guys? We're making music. All right. We are back with Ken Lawson, a professor at law school at the University of Hawaii. And we are talking about, a lot about being a lawyer and practicing law. And it doesn't just apply to criminal lawyers, I think it applies to all attorneys. And Ken, when we left, we talked a lot about your background and also you went across the sea to Hong Kong. Hawaii. And you gave a talk about the death penalty, I think. And the actual innocence and how to defend. And I want to know, what did you learn? Are we all the same? That's the amazing thing. It's not just in Hong Kong. We have a diverse population here in Hawaii. Most of my students come from all over the world. When I was in Cincinnati ten years ago, it was more or less black and whites, with a few Hispanics in the population. That was it. Coming to such a diverse university, and teaching what I've come to learn, getting to the heart of your question, is that all people are the same. There's a certain language of the heart when it talks about justice. So when I went to Hong Kong, I had no idea what the Chinese system was like. So I'm trying to read a book on the plane going over there, about the actual innocence and some of the projects they've done over there with respect to actual innocence and justice. One, it made me more grateful about our system. Even though I have a lot of complaints about our legal system, after hearing what these defense lawyers from China had to come to Hong Kong in order to avoid persecution, they couldn't sit at a seminar like that in China without some threat of getting locked up themselves or being in violation of some law. So that's why we had it in Hong Kong. But to hear their stories, and we sat in their mark, we sat in a room at Hong Kong University so that they had interpreters and I had these headphones on. So the other Chinese defense lawyers were talking about their cases and I was only supposed to be there for a few hours. I stayed the whole two days and it was just amazing. But again, when we talk about justice, right, that's not something that we can teach you're an attorney. You can't teach justice to anybody. It's something that you feel inside where it's like, you know what, this don't feel fair. Something about this situation is unfair and that language crosses the borders, man. So what did you hear from the Chinese lawyers? What are some examples of what they were talking about that affected you or made you think? How the death penalty can be applied to... Like here, it has to be proportional. Right? And so back in the 70s when a person had raped someone and they were, you know, the death, the Supreme Court came back and that's not proportional. There, if you're stealing and stuff like that, you can maybe subject it to the death penalty. I'm like, oh, yeah. Now, how did the Chinese feel about that? Were they saying, well, yeah. I mean, that's okay. Or were they saying, wait a minute, that's too harsh. They were saying it's too harsh. They were all defense lawyers. They were saying it was too harsh because we know now through DNA that many people who were sent to death weren't actually and factually innocent. And there's a big difference between being wrongfully convicted and actually innocent. You can be wrongfully convicted and guilty as hell, right? But if you're actually innocent, and DNA has shown us, right, that there have been many people sent to death. Were the Chinese attorneys... I mean, did they focus on that, too? And were they saying that this is a social feeling generally throughout China that this is a little harsh? Or was it a social feeling? It's changing. Yeah, it's changing. My understanding is, again, I'm not an expert on China, but from my limited experience with these defense lawyers in Hong Kong was that it has been changing over the last several years. Socially and legally. But the government is different from the legal process. Yeah, very different. I mean, I feel kind of bad from one good thing that they are doing is they're now recording the interrogation that the police conduct because you had a lot... the way that they would get confessions. You know, I mean, beating confessions out of suspects, you know what I mean, torture, etc. And that has, at least because of the death penalty and people being sent that are actually innocent has led China to now at least require that the interrogations be recorded. So that's a positive step. We need it here. Okay, so tell me a little bit. Tell me what you like about our system compared to China and what you like about China compared to us. The only thing I like about the China system is the fact that they're recording interrogations other than that. They don't do that now? They don't do that here? Some states are starting to do that or some departments are starting to do that. But no. Generally speaking. Generally speaking, no. DNA has shown us that 20% of people who confessed were actually innocent. And most people say, well, you know, why would you confess to committing a murder? I would never confess to committing a murder that I never did. But you look at the Central Park Five, right? They all confessed. And one thing DNA has shown is 20% of those confessions are false confessions. So what happens, right? Anyway. So on that side, on the China side they're required or it appears to be that the keeping track of what happens in the interrogations good. You'd rather be a defendant in America, right? Almost definitely. That's some scary stuff. Man, with no trial by jury, the jury trial here to me is so important. And we still need work. And I'm not talking about the grand jury and just the jury trials that we allow our citizens to get here that the Constitution guarantees are vital. And in those countries that don't have that what stops the government with all of its power and all of its might from descending on that poor citizen, right? And our juries can do that. Our juries are a buffer between the might and power of the state and that citizen that may be sitting there helpless. And the only thing between justice and injustice is you and that jury. You being a defense lawyer. Now, let's go past the jury for a minute. Let's talk about sentencing. You talked about sentencing earlier. You accepted a sentence. There's been a lot of talk, especially in the press about certain people getting sentenced to light sentences and others being more harsh. For example, a young man was sentenced for four years for harassing an endangered seal. Another young man got 45 days for killing endangered birds. You know? And if you're a citizen out there in the jury pool maybe you're wondering how does that happen? What are your thoughts on that? I mean, why are and then somebody gets in a car accident under drugs convicted of manslaughter, gets a year and a half. Somebody else gets four years for something that doesn't seem comparable to the death of a human being. What are we talking about? It's a mystery. The sentencing, it seems to us. A lot of the lay people out there. What's going on? Judges have discretion in sentencing. Back when the Obama administration was in as far as the federal sentencing is concerned a lot of the clemency that he granted was based on unfair sentencing, right? And so the federal government tried to come up with a point system to bring truth and sentencing and it really didn't bring any truth to sentencing. You still had the same type of comparisons between crack cocaine and powder cocaine, etc. Getting back to this it's human, right? It's human nature. It's all kind of biases. I may see a student from Punahoe or he's got a great future. I don't want to ruin his future. I'll give him 45 days. I had no idea what the defendants background was with the seal. But if I don't see those two people as equal human beings in other words, if I implicitly maybe not consciously, but just implicitly see that you may be more savable than this person I may alter your sentence, right? It's unfair. It truly is unfair, right? What are the factors being placed in? And so the implicit bias and explicit bias, right? Studies show that minority defendants are being censored at a higher rate than non-minority. You had the case in California, the rape case where the kid got what, six months or something of that effect. So how does that happen? So your mind is still questioning that. You've told me that you think there's just inherent biases that Some of our implicit are explicit, right? But I mean, again, you got two species that are important to preserve for two awfully different sentences, right? Yeah, basically the same thing in a way. Very curious. Now, let's think about this. You've had experience in the criminal law system as a defense attorney and being involved in the system yourself. Why is there crime? How do we stop it? Is there anything that can be done? Or is it just human nature that we're always going to have it and just live with it? You're always going to have a crime. The question is, can we reform our system? Much like they did in the Netherlands and other countries, right? To where we're just not sending our people off to prison. I mean, here in Hawaii are our citizens who commit crimes who do wrong to Arizona. And how do we tell you that you're rehabilitatable if you can't see your family? Right? Because they can't afford to come out there and visit you. What hope are we giving you when we say you go out to another state and when you come back you better not mess up again? We're in other jurisdictions and countries what they're doing is saying, okay, listen, you committed a crime, it hurts you, it hurts your family and there were victims and you hurt society. So now we're going to do what's called there's a group doing restorative justice here, right? Some restorative justice so that you can make amends for what you did, so that people that you heard can talk to you, right? So that you can still understand that yes, you made this mistake, you got to pay for it, but there's still hope for you. And the crime rate goes down. So we got to think of a different way to punish people just like me, I had to accept the consequences for the wrong that I did, right? And make amends, financial amends and verbal amends to those people and not just that I'm sorry, but how can I make it right? And what that does is it allows me to become clean again. You know, we're going to have to come back and talk about sentencing and how it works but I want to give you an opportunity to give advice to a young lawyer just starting out in practice. What do you tell them? What do you tell one sentence, what's your best advice to a young lawyer looking out cars? That you are the best lawyer, the best lawyer in this state or whatever state you're practicing in, being okay with who you are, that once you can accept and I'm with all my faults, all my weaknesses, all my strengths, all my mistakes that I've made in my past, all these things make me who I am and I'm okay being me and I can be me in front of you in front of a judge when I go home. I don't have to open up that door when I go home and take a deep breath like I gotta home, my God, I'm glad I'm home. I gotta turn back into who I really am. I'm me no matter where I go because I'm okay with who I am. Your advice is good for young lawyers and old lawyers Ken, thank you very much. I appreciate it. Thank you for having me, brother. Thank you everybody. See program. Aloha.