David Rudolf interview

David Rudolf: Could your organisation exist in the United States? Even with your mission?

Torrin Wilkins: Oh, that is fascinating – I feel like we have already started the interview! We will include this section because it is a really interesting question. I do have friends in the United States, and I think the answer they often say would be yes, but would it get any support? I could start up the website.

David Rudolf: Oh, sure, you could.

Torrin Wilkins: You could do that, but it would be very tricky. In the UK, if you make the arguments about Norway, especially, then they are not that far away. So you can make that argument, and you can say that we are similar to them. If you want to, you can get on a plane and easily go over to Norway and see what their justice system is like, or speak to people who have been involved in the justice system in the UK.

I think it makes it a lot more real compared to living in the United States, especially when you are trying to call for a big reform – where are you basing it on? Somewhere over in Europe, which is, in comparison to the United States, absolutely tiny. I mean, you have to go down to the state level. I think it would be incredibly difficult to make it. Kudos to anyone who tries to make that argument, but I think it is incredibly difficult.

First of all, thank you, David Rudolf, for coming on In Conversation. You were the defence lawyer for Michael Peterson, and you appeared in the Netflix series The Staircase. You were portrayed in the recent HBO series with the same name, and you started your law firm. Thank you so much for coming on.

David Rudolf: It is my pleasure.

Torrin Wilkins: One of the things I wanted to start with was actually about uncertainty in legal cases. Because, if there is anything I think that keeps the whole case with Michael and Kathleen Peterson coming back, it is this idea that, even watching the series, you never know what is going to happen next. Whether it is the blow poke, or whether it is afterwards? Or even when the owl theory came out, this idea that an owl attacked Kathleen outside the house and then she fell down the stairs indoors – any of those kinds of things. 

So, how do you think that the justice system should deal with doubt? Also, why do you think it is important that we do not lock up innocent people? I think one of the examples you gave was that you could lock up 100 guilty people; however, if you lock up that one person who is actually innocent, then the fundamental idea of justice will be lost.

David Rudolf: Well, a couple of things. First of all, if you lock up an innocent person, then the actual perpetrator remains free to commit other crimes. So, although it is sometimes portrayed as a liberal versus conservative dichotomy on the importance of avoiding wrongful convictions, the reality is that everybody should be aiming to avoid wrongful convictions. This may be for different reasons, but it is not good for your law-and-order crowd to convict an innocent person and let the guilty person go free. Likewise, it is not good for the victims of crime to have an innocent person convicted and have the guilty person go free. It is certainly not in the interest of the defendant or their family to have that. So everybody should be on the same page about avoiding wrongful convictions. That is number one.

Number two, in terms of the role of doubt, I think Scotland has it right. Scotland has three verdicts: guilty, not guilty, and not proven. I think that every country should have two verdicts: proven or not proven. I do not think any country ought to be limited to this binary “guilt or innocence” or “not guilty/guilty.” This is because when a jury says not guilty, there is an implicit conclusion that the person is innocent, but that is not what the verdict is saying – the verdict is not proven. You did not prove it beyond a reasonable doubt.

Now, we could have debates about whether “beyond a reasonable doubt” is the right standard – I happen to think it is. Others might think it should be a greater weight of the evidence or something in between those two, clear and convincing. But once you settle on what the standard should be, then it seems to me it should either be: that standard has been proven for the jury, or the standard has not been proven for the jury. I think that would make the system much more transparent to everybody. Because when a jury comes back and says “not proven,” it is pretty clear that what they are saying is, you just came up short. We are not saying this person is innocent. We are just saying you did not meet your burden of proof. So that is why I think doubt and uncertainty are really important in the criminal justice system, to avoid letting actual perpetrators go free and convicting innocent people.

Torrin Wilkins: I also want to ask about the not-proven verdicts they have in Scotland. What do you think about them having a guilty, not guilty and not proven all at the same time? At the moment, the Scottish Government is running a consultation which seems to have been spurred in quite a large part by Alex Salmond. He was a former First Minister, and his case, which centred around sexual assault claims, means there is a possibility that the verdict will be “not proven” rather than guilty or not guilty. What do you think about the review, but also having three whole verdicts all at once?

David Rudolf: I do not understand the purpose of the three verdicts. I could understand it if you had a verdict that said innocent, where a jury was going to affirmatively decide that someone was innocent. Although you might not have to prove that to escape from the consequences of the criminal justice system. So I do not understand the rationale.

When I was over there, I was interested in this. I think what happened was that they originally had the guilty and not guilty verdict, and then the not proven was added at some point later on. I am not quite sure what the impetus was for that.

When I was over there in 2018, there was a fairly infamous case, a sexual assault, where the person was found not guilty. But then there was a civil proceeding where the person was held responsible. And so there was an uproar by the victim and their supporter,s saying, “Why was he not found guilty if he was found responsible on the civil side?” I think that is what led to a re-examination.

But for me, that was faulty logic – there is a different burden of proof. So it makes perfect sense to me that somebody could be found responsible by a greater weight of the evidence, which is the standard for civil liability, but found not proven beyond a reasonable doubt. I do not see any conflict between those two. And I think that was the gravamen of the complaint, that somehow those verdicts were inconsistent with each other. I do not think that is true.

So my hope is that they are not thinking about changing “not proven.” I would prefer them to change the entire thing to “proven” or “not proven.” I think that would make infinitely more sense. Basically, that is the question: has the prosecution proven the case beyond a reasonable doubt? Either they have proven it, or they have not proven it.

Torrin Wilkins: Well, I think you have just come up with a good new policy proposal there. 

David Rudolf: Why do you not push that? 

Torrin Wilkins: I was going to say, it is a very good one.

Looking at the Michael Peterson trial, one of the big things was cameras being allowed into the courtroom. The documentary, as we now know it, would not exist without the cameras being allowed in the courtroom. However, in the UK, it is a very different situation. We have courtroom sketch artists as a result of the fact that you are not always actually allowed in court, even when verdicts are being read.

Do you think that, overall, the move towards cameras being in courtrooms was a positive step? Or was it something that risks creating a media circus, similar to what we saw with the Amber Heard and Johnny Depp trial recently?

David Rudolf: I am not particularly in favour of cameras in the courtroom. Now let me just say this: if what you are going to do is what Court TV in the United States set out to do 20 or 30 years ago, where they were going to cover trials gavel to gavel and people could tune in at any time to watch as much or as little of it as they wanted, I could see there being some benefit in terms of educating the public about how the system works.

That, I think, would have some marginal usefulness in much the same way that I think The Staircase educated the public in ways that no other documentary has about how the system works in real life. That has some value.

Does it have any value to allow cameras in the courtroom so that on the evening news, you can play a two-minute or 90-second clip of a particularly dramatic moment? I do not think that does anything to educate the public or to really give them any real insight into the case at all. It is just a moment in time – it is like a snapshot.

And I do think having cameras in the courtroom, to the extent it leads to those kinds of snapshots, on TV at night or in social media, is a negative. People think they are getting the actual taste of what is going on, but they are not.

It is a reporter who is in the courtroom all day long and is listening to both sides, and assuming that the reporter is conscientious and fair and can summarise a full day of testimony, then there is some value to that. You get a much better feel. But not for the 90-second clip. I just do not think that serves any purpose.

On the other hand, I will say that I do not think having a camera in the courtroom affects any of the participants. It may affect the jury, because they know that other people are watching, which may make them either more conscientious or more sceptical or something. But I do not think it really affects the lawyers, and I do not think it really affects the judge, and I do not think it really affects the witnesses.

I think the Amber Heard and Johnny Depp trial would have been a farce without the cameras there. It just seemed to me that everybody was taking a role. I am not talking about the lawyers, I am talking about the witnesses and the parties – everybody was playing a role. And maybe that was inevitable given the fact that they are all Hollywood actors. I did not feel that about the lawyers, particularly, but I think that would have been the same whether there were cameras there or not.

Torrin Wilkins: Do you think that in the Netflix series and on The Staircase, you helped to change the image of defence lawyers? And was that one of the positives that came out of it?

David Rudolf: That was my goal. I agreed to do it, but Michael had his own goals, which were different from mine. My goal was that I was sick and tired of how criminal defence lawyers were being portrayed in the popular media, whether it was on TV in shows such as Law & Order, or in movies. We were always portrayed as unethical, trying to trick the judge, the prosecutor or the jury and not caring about our clients.

There was just a whole series of stereotypes that had grown up over the last 30 years, which I had not been subjected to when I was growing up. When I was growing up, it was Perry Mason who was a good guy! He was looking for the truth, and he was clearing people of crimes that they did not commit.

So that was my goal: let us show people what we do, both in preparing for trial and in the courtroom itself. And I am gonna open the kimono, so to speak, and let everybody see, and that is what we did. There were no second takes. There were no “Gee, can you do that again, David?” There was none of that. It was just that they filmed what was going on.

I have had probably hundreds, maybe thousands, of people texting me or leaving comments on my website, basically to the effect of, “Whether Michael Peterson is guilty or innocent, some think he is guilty, some think he is innocent, regardless of that, you made me understand a lot better what criminal defence lawyers do. I have a whole new appreciation of what your role is in the system.”

And so I got lots and lots of positive feedback about the role of criminal defence lawyers. I know from talking with other criminal defence lawyers in the United States that they have felt that as well, that The Staircase did improve our standing, if you will, with the general public. So that is what I am probably most proud of about The Staircase, and most grateful for.

Torrin Wilkins: The Norwegian prison system is a world away from either the US or the UK prison systems at the moment. Why do you think there is such resistance to moving towards that system? After all, the US system seems to be more and more about punishment and deterrence. The Norwegian system is more about rehabilitation and ensuring that prisoners learn skills in prison, so that they can fit into society afterwards, which in turn reduces reoffending rates. Why do you think it is such a difficult sell in the US and the UK right now?

David Rudolf: Well, I cannot necessarily speak to the UK. In the US, I think there is a Protestant ethic – that “eye for an eye” idea. And so there is a certain desire for revenge, retribution or punishment that I think is somehow wrapped up in religion. I am not quite sure how, but it just says, this whole concept of heaven and hell and good and evil. It just seems to me that there is a religious-based judgmentalism and desire to punish when somebody does something wrong, as opposed to a desire to understand and to, as you put it, rehabilitate and leave people in a better position coming out than when they went in. All of which is completely rational.

And it eliminates that whole notion of “we need to get our pound of flesh from this person.” Because that is really what it is about at the end of the day.  This person did this, and so he or she needs to pay for doing that,  and I get that to a certain extent. I mean, there has to be deterrence, and deterrence is fine.

But when I was going to law school, we often talked about the fact that the goals of punishment could be deterrence, retribution or rehabilitation. And back in the day, in the 70s, rehabilitation was something that people actually in the United States considered as a goal of incarceration. That died away long ago.

Crime increased as the drug problems increased, and as people got more scared about crime, we became much more vengeful, I guess would be the right word. So in my mind, it is not a rational reaction. I think the reaction in Norway is much more rational, much more productive in terms of the overall health of the society. I think you see that in the crime rates and the rates of recidivism. So the proof of the pudding is in the eating.

Torrin Wilkins: If you were going to try to convince people in America of a Norway-style system, would there be a place to start? Do you think it is almost too far gone now, that it would be almost impossible to propose a greater focus on rehabilitation, or do you just think it would be a very tough argument?

David Rudolf: Torrin, the atmosphere in the United States right now is that we cannot even agree that assault weapons ought not be easily available to 18 to 21-year-olds, to anyone. I mean, what is the purpose of an assault weapon other than to kill as many people as you can as quickly as you can?

So we cannot agree on that. We are certainly not going to even begin a conversation about the value of rehabilitation. We ought to begin rehabilitation with the rehabilitation of certain members of Congress, who need to be rehabilitated about their values!

Torrin Wilkins: For my final question, something you have said in the past is that you would like to encourage law students to represent those on lower incomes. One of the debates in the UK has been around legal aid, which goes to people who cannot afford to pay their legal costs.

Why do you think it is such an important part of the justice system to ensure that those people are represented and have a fair trial?

David Rudolf: Well, and I know this is a big issue right now because from what I read, your barristers are on strike over pay and working conditions, which is a pretty dramatic development. And this speaks to the very issue you are talking about right now.

The reality is that in order to have a fair trial, really fair I mean; if you were going to not have prosecutors, and instead have the victim, their family or someone the victimhas selected be the prosecutor, not a lawyer but some lay person to try the case for the prosecution, well then maybe you could do the same thing on the defence side and it would be a fair fight.

But you cannot have the Crown on one side of the courtroom and somebody with a sixth-grade education, completely untrained, unknowing of the rules of evidence or the rules of procedure, be able to mount a fair defence. The problem with that is that, if you cannot mount a defence, you are inviting error. You are inviting convictions that ought not occur.

Then the question becomes, what is the cost of that to a society? In the United States now, as you may know, I have devoted my career in the last 10 or 15 years to suing police officers and other law enforcement individuals who are responsible for wrongful convictions. We sue to secure monetary compensation, because that is the best we can do for the victims of that.

In a place like Chicago, where this was a rampant problem, the City of Chicago has paid out hundreds of millions of dollars in damages to people who were wrongfully convicted. Imagine if they had instead devoted those resources to public defenders, not just what they are paying the public defenders, but to managing caseloads, and providing the kinds of ancillary services, like experts, to help them represent people.

I am not sure it would have been a cost savings to have done that. So, I think it is short-sighted not to have public defenders. I think it is very short-sighted not to fund those people properly, not to pay them what you are paying prosecutors, and not to give them the resources and the time to do their job.

 You do not want to have prosecutors who are so overworked that they cannot properly present their case, and you do not want to have defence lawyers who are so overworked that they cannot properly defend their clients.

Torrin Wilkins: Well, thank you so much for coming on The Conversation. It has been fantastic to talk to you, David.

Note: This interview has been edited for grammar, clarity, and flow. The original recording is the final and definitive version.