Interview. with. Malcolm Ray "Tye" Hunter. November 8, 1994 December 1, By Devon Sanders

Transcription

1 Interview with Malcolm Ray "Tye" Hunter November 8, 1994 December 1, 1994 By Devon Sanders Law School Oral History Project University of North Carolina at Chapel Hill Original transcript on deposit at The Southern Historical Collection Louis Round Wilson Library Copyright 1995 The University of North Carolina

2 INTERVIEWEE: INTERVIEWER: PLACE: MALCOLM RAY "TYE" HUNTER DEVON SANDERS RALEIGH, NORTH CAROLINA DATE: NOVEMBER 8, 1994 Tape 1, Side A DEVON SANDERS: We can start with a basic question. How did you get the nickname "Tye"? TYE HUNTER: Well, my father grew up [in the South]. His father was an oil distributor in South Carolina. Then the Depression came, and like a lot of people with small businesses and especially small businesses that operated on credit a lot - that is, people that you'd give them their oil, and then they pay you when their crops came in or something like that - his business was destroyed by the Depression. The only part of his business that really survived the Depression was the gas station. My father was an adolescent at the time that this happened, and so they were converted from being sort of certainly a part of the middle class to being like lots and lots of people in the country who were then pretty poor. When my father graduated from high school, he had no idea of going to college because there just wasn't any money, and, in fact, he was going to pump gas at his dad's gas station, was what he was planning on doing. But he had an uncle, his father's brother, whose name was Hyrum Tyrum Hunter, who was the first president of what's now Western Carolina University up in Cullowhee, North Carolina. My father's uncle came by one time and knew that my dad had graduated from high 1

3 school, and said, "Well, you know, you can come up and live with me, and I'll get you a job driving the activity bus or something. You can essentially go to college for nothing," and so my father did that and ended up going to Western Carolina for a couple of years. Then when World War II broke out, he went into the service, came back, finished his undergraduate studies in Chapel Hill, then went to dental school at Georgetown, and then went on and had a professional career. So he was very grateful to this uncle of his who had really made it possible for him to go to college. I was the third child in our family, but the first boy. So when I was born, my father had it pretty firmly in his mind that he wanted to name his first son after this uncle who had been so important in his life and whose name, as I said, was Hyrum Tyrum Hunter. My mother, on the other hand, thought that I should be named Malcolm Ray Hunter, Jr., after my dad, and as so often happens in these sorts of things, my mother got her way. But I was always nicknamed "Tye." So my real name's Malcolm Ray Hunter, Jr., but I've always been called "Tye" as the result of this struggle at the time of my birth. That was also the nickname of my great-uncle. My great-uncle was named Hyrum Tyrum because his father gave all of his children rhyming first and second names. That was just one of the little peculiarities of his father. So that's how I came to be called Tye. DS: What was your mother like as a person? TH: My mother was an only child and was very pretty. Actually, my dad met her at Western Carolina. They fell in love; they got married, and then he went 2

4 off to take part in the war. However, as she got older, she was ill. She has died now. She died about ten years ago. I have a stepmother, as a matter of fact, but my mother was ill for a lot of the time when I was a young boy, and I think that had a big impact on me. I think, in some ways, although I lived financially in very secure situations - upper middle class in Greensboro, North Carolina - because of my mom's illness, I think things weren't as settled in my house as if I'd had a mother who was sort of a strong presence. She sort of had all she could do to sort of take care of herself and so the kids sort of took care of themselves. And as I think back on it, I think that sort of gave me a sense of myself as an outsider in a way, even though I wasn't an outsider and even though, in a lot of ways, people would have thought I was very much sort of an insider compared to lots of people. But I had a sense of myself as not really being like other people in some ways, and as I think back on that, I think that it may have had to do with that. DS: Were there any other experiences that you had that kind of instilled principles or ideas that you have today? TH: Well, I had two very close friends when I was an adolescent who are both Methodist ministers, both of whom had an enormous impact on sort of my ethical thinking. They're both dead now, sadly. They both died relatively young. The first one was a guy named D'Armon Hunter, who was not a relative of mine but was a minister of youth and education at a church I attended in Greensboro and who was very interested in, among other things, the civil rights movement. He was really the first person I ever talked to who could sort of 3

5 explain to me about the civil rights movement and made me see what was right about that. He had an ethic that was based basically on the Gospel that I found very attractive, and so he was a big influence on, I think, my ethical development over the years. And then as a little older teenager, I became good friends with another Methodist minister who was actually a professor at Greensboro College, which is a Methodist college in Greensboro. And he also combined sort of an ethic based on the Gospel and what I would call a liberal political outlook, and so I think both of these guys, in their way, were very, very important in me growing up and sort of looking at things the way I do. I consider myself now sort of a liberal politically, and a Christian and someone who thinks that one of the main things we ought to do is try and live by the Golden Rule and do unto others as we'd like them to do to us. So that's had a big influence on my life. DS: You mentioned the civil rights movement. Are there any other events of controversy that you remember that may have affected your outlook on life at the time? TH: Well, I remember very well being a high school student in Greensboro at the time there were so-called riots at North Carolina A&T College, which is the predominantly black college in Greensboro, and the National Guard bivouacked at my high school my senior year. They were in their tents, bivouacked on the campus of Grimsley Senior High School, and basically used that as their base of 4

6 operations to go down and patrol and keep order or whatever they were doing at North Carolina A&T. And, of course, Greensboro was the place where there was the first sit-in at the Woolworth's, so there was lots and lots of talk about civil rights in my home, in my school, and in the community as I was growing up. And although the sort of thing you'd read from the local newspaper and the sort of thing I heard from my parents was basically sort of conservative, I feel like I got another look at it from these two ministers who I knew from church. Although the church I attended was a very conservative church, I don't think these two men were typical of the church at all, but they just sort of quietly had their own opinions which had a big influence on me. DS: How does your family feel about the direction your life has taken? TH: Well, some people talk about their parents being uncomfortable with career choices, particularly if it involves values that really aren't the parents' values. I think of my dad as someone who, because he went through the Depression, I think security's a very important issue for him. And I think, in some ways, the notion of pursuing a career, not for the financial remuneration, but for some other reason, because you think it's the right thing to do, is a little hard for him to understand. At the time he was making decisions like that, he was completely - in a way, he didn't have the luxury of that sort of decision. And I think that's really typical of his generation, and typical of a lot of people in other generations. I think the sort of thinking I've done about my career is, in a lot of 5

7 ways, typical of people who haven't really had to worry about money in their life, and so I've always assumed wrongly that that would work out, and so that's always been a secondary concern for me. I think that's been a little hard for him to understand, but on the other hand, I think he basically is proud of me and likes the fact that I'm an attorney. I went and argued a case in the U.S. Supreme Court a few years ago, and he came up and watched me argue that case, and I think he liked that. So I would say that he feels good about it, but he's probably a little puzzled that I haven't moved on to something that makes more money. DS: For college, you chose Carolina, both undergraduate and for law school. What was your Carolina experience like and why did you choose to go to that university? TH: Well, the reason I went to UNC to undergraduate is basically two reasons: one, I had always been a UNC athletic fan. So from the time I was a little boy - my dad had attended UNC after the war, and so he was a UNC fan. As a matter of fact, he had been at UNC during the time of Charlie Justice, which is really the heyday of UNC's football exploits, and he had been back in North Carolina as a dentist when the UNC basketball team won the national championship in I was just a little boy when that happened, but both of those things really captured my dad's imagination, so he was a big college athletics, and just specifically UNC athletics, fan all the time I was a little boy. I came down to lots and lots of basketball games and football games. So I was 6

8 very much inclined to go to UNC just because of that association, going to lots of basketball games and football games. And the other thing was that UNC had a very short application form at the time, didn't require an essay, and so that was very attractive to me; so I ended up only applying to UNC. It was the only place I applied to. So I came down. DS: What did you major in at UNC? TH: Political science. DS: Did you have any experiences at UNC that kind of turned life for you or made you think about things? TH: Well, there were lots of things. UNC, back in the late '60s and the early '70s, was really a very, very different place from the way at least I see UNC now. There was lots and lots of questioning of authority and questioning of our parents' attitudes about things, and particularly parents' attitudes about how the most important thing about college was to use that as a way to get a good job and maybe find yourself a way into the middle class. So during the period I was there, I would say, for lack of a better word, the hippie movement was very much in sway in Chapel Hill, so that I think a working majority of the campus considered themselves on the left politically - anti-war, anti-vietnam War, anti-racist, antitheir parents, and sort of rejecting a lot of their parents' values as corrupt and empty. There was also a great deal of - the drug culture was pretty strong during that period as well. There were always visiting people coming through and giving speeches, and there were demonstrations and moratoriums concerning the war. 7

9 There had been a big strike concerning the food workers at UNC, which in many ways, is similar to the activities of the housekeeping people now, in the '90s. That was really the year before I came. That was in 1968, but there were still reverberations from that going on, and so the whole idea of student activism and of the university as a place not just where you sort of prepare yourself for your professional life, but as a place where you explore ideas and try and have an impact on changing society, that was very much the way people thought about college at the time I was in UNC. I live in Chapel Hill now, and it seems to me that the student body is a lot closer to their parents in terms of their outlook on things and a lot more conservative and a lot more content with the status quo. It looks to me like just a lot more concerned with basically, "What's in it for me?" I don't mean to insinuate that... I don't think people have basically changed, but I do think that fashions have changed dramatically, and that part of the fashion is that it is more fashionable and more acceptable now to basically worry about yourself and not worry about people who are less fortunate, which I think is too bad. I think there are enough things that drive us in that direction and that it is good, especially for young people, to spend some time thinking about other people and issues bigger than themselves and issues that aren't directly connected to their own personal glorification. That was a very powerful influence on me, and I really enjoyed it. The politics were, again, well to the left, or at least the majority of politics, and sort of reenforced me in the way that I look at the world. 8

10 DS: What caused your decision to attend law school? TH: Well, I think several things. I had also thought about going to medical school at one time, and in some ways, being a medical doctor was more appealing to me than being a lawyer, but I thought... I didn't know what I wanted to do really, and I thought that being a lawyer just gave me a lot more opportunity for ~ I had a lot broader opportunities. You can go into government; you can go into business; you can go into all the various kinds of practicing law. So I ended up concentrating on things that I thought would help me to go to law school, basically, as a way to keep my options open, although I had always had an interest in criminal justice issues. In fact, [I] did some independent studies on police and the effects of integration and higher education in the Greensboro Police Department. I went back and did a little survey with the police department in Greensboro to try to examine - this was a period where really just over the ten years prior to 1970, the police department in Greensboro had been significantly racially integrated, and also, there were significant numbers of people coming into the police department who had some college or even college degrees, and that was really unheard of prior to the '60s. So I did a little work - I put together a little survey to sort of study what impact that might be having on the Greensboro Police Department, and also surveyed what other people were saying about similar questions. And, in fact, [I] thought at one time about being a police officer as a way to sort of have a positive impact on society. 9

11 While I was an undergraduate, I worked, first as an intern for a summer and then later in some other capacities, for the Department of Corrections, and worked at the old Central Prison in Raleigh before it was rebuilt, the old nineteenth-century prison, which again was a very interesting experience; and in some ways, [that experience] again confirmed a lot of my beliefs about how prison is basically a place for people who don't have political clout, don't have money, and there's nobody out there who really cares about them, and a place where not much, if any, rehabilitation was going on. So I would say those experiences in criminal justice also gave me the idea that I would like going to law school or at least like being a lawyer. DS: What was your law school experience like at Carolina? TH: I would say I mostly did not like law school. As most law students, I've found out that most of the classes I was taking were things that I really wasn't very interested in. I mean, I took lots of tax courses; I took business association courses; I took property law courses. Typically, I might have one course out of four or five each semester that I was really interested in. Again, I didn't know exactly what I wanted to do, but I had a vague idea that I was interested in criminal law and that is an area that's just one of ten or fifteen specialties as far as the law school is concerned. Law school really provides you for a much broader, I would say, business-oriented, civil law-oriented practice, which I don't think is necessarily wrong, but I never could convince myself that it had very much to do with what I was going to be doing, and that turned out to be 10

12 true. So I found law school not all that interesting and a lot less interesting than what I'd been doing in undergraduate school, although I certainly found things that I really enjoyed. I took a course with Barry Nakell where I got to argue a case in the Fourth Circuit, which is my first appeal case, on behalf of some prisoners. He had a prisoners' rights course where we would pick a couple of cases that the Fourth Circuit had appointed us to do in prison litigation, and we got to write briefs and then go up and argue the case, and that was a great experience. I enjoyed that quite a bit. But for the most part, I just saw it [law school] as something I had to go through to get my ticket to be a lawyer and to do what I wanted to do as a lawyer. DS: Did it ever affect your performance at all? Were you involved in extracurricular activities? TH: No, as a matter of fact, I got married while I was still an undergraduate. I would go and sort of do law school and go home and just sort of have a home life, and so I did not get involved really in the culture of sort of law students who hung around the law school all the time. In a lot of ways, I did not - it's sort of like being a day student at a college. Rather than living in the dorm, I was living at home, and I was, in some ways, not as involved in the law school generally as I might have been. DS: Were there any professors or figures at law school that really influenced you? 11

13 TH: Well, I would say Nakell, as I think back on it, was somebody who influenced me and who encouraged and who I still have a friendship with, as a matter of fact, of the people who were there. Since I've left the law school as a student, I have relationships with a lot more professors than I had actually when I was there, and there are lots and lots of law professors who were there who are important influences on me and friends of mine and people who I look to for guidance and support. Rich Rosen, Jack Boger, Lou Bilionis, Barry Nakell, Ken Broun are all people that I consider friends and who I admire and I think are very good lawyers. DS: How would you compare the quality of lawyers you deal with today to those at bar when you were beginning your career? TH: Well, in the area where I work, which is in criminal law, I would say that the quality is improved from when I first got started. There are still some major problems with the practice of law I see in the criminal law area. But in general, I would say the very best lawyers, the very best practitioners out there in criminal law are better than the very best lawyers were twenty years ago; I would say the middle group is better than the middle group was twenty years ago; and the group at the worst - the worst practitioners - are probably the same as they were twenty years ago. They aren't any worse, but probably aren't any better, either. DS: Why? What factors lead you to believe that? TH: About- 12

14 DS: The quality. TH: Well, I can go back and look at the sort of thing that I used to do and that other people who I consider to be excellent lawyers did fifteen or twenty years ago, and I can go back and look at that stuff now, and we're just doing a lot more sophisticated - a lot better practice. I don't think we're any smarter than we were, but I think there has been an effort at continuing legal education and at raising the practice of criminal law, which to some extent, has succeeded in North Carolina so that in a way, most of the boats have risen with the tide. In the late '70s, the legislature passed Chapter 15(A), which for the first time, really codified criminal procedure in North Carolina, and I think that has slowly had a big impact. It has gotten [rid of] the idea of going and trying criminal cases by the seat of your pants without filing motions, without really knowing what the law is, but just [using] your opinion on your ability to sway the jury. I think that it has cut into that tendency, although it certainly hasn't eliminated it, and there are a number of people who have shown that you can be a successful criminal defense practitioner just by being very good and working very hard and applying the same kind of skills that make people successful civil practitioners, and so that has been a good development. But there have always been - there were when I started in practice, and there are now a significant group of people who I refer to as bottom feeders, who basically hang around and take appointed cases and don't know very much law, don't try to do very much of a job, but just because that's some work that you can pick up without too much struggle, and 13

15 the clients you represent really aren't in much of a position to complain about you or aren't in much of a position for anyone to listen if they do complain. There are a lot of people that just end up doing that work because it's easy. Representing an appointed client in a criminal case is like being a public school teacher. If you don't give a damn about what you're doing, it's a very easy job. If you do care about what you're doing, it's a very difficult job, and lots of people don't care very much, so it's an easy way to make a buck. DS: What were your concerns as a young lawyer starting out? TH: Oh, I think bowel control was a big concern. I was like everybody else. I didn't want to make a big monkey of myself in the courtroom, which I think I probably did make a monkey of myself a few times in the courtroom. You graduate from law school, you don't know anything about the legal culture of the courthouse. So a lot of that, you just pick up from watching other people. I was lucky enough I went down and worked in the Fayetteville Public Defender's Office after I graduated from law school, and so I had colleagues in the Public Defender's Office who could sort of show me around and tell me what was going on and let me know what judges were easy to work with and what judges were difficult to work with, what you could do to sort of learn how to really operate in the courtroom and deal with the district attorneys and deal with the judges and deal with the detectives and that whole crew. So that was a whole new education, but it was one that I understood was very relevant to what I wanted to be doing. I was more interested in that education than I had been in a more general one at 14

16 law school. I enjoyed - I was down in Fayetteville in the Public Defender's Office for about three years which I thoroughly enjoyed, and I might still be there today, but my wife, who was not a lawyer and was not a part of this culture, did not like Fayetteville and so we moved back up to the Triangle basically because she wanted to move back up here, and she went back to graduate school. DS: Was this right after your graduated from law school? TH: Well, I went down to Fayetteville right after I graduated from law school and stayed down there for three years, and then came back up here to practice, basically so that my wife could go back to graduate school. DS: Who were the lawyers who were your mentors during this period? Do you remember any of them? TH: Oh, sure. Mary Ann Tally, who is now the head lobbyist for the North Carolina Academy of Trial Lawyers, was the head public defender in Fayetteville for about fifteen years, and she is the person who hired me and was really my first mentor in the law. She was an excellent - still is - an excellent lawyer and a very vigorous advocate. One of the things that she did that really made a big impression on me was her position was if judges or district attorneys or anybody came and complained about you to her, she always backed you up. She said that she only became concerned when those people stopped complaining about you. She figured it was your job to have those people upset and complaining, so she was a great role model and has remained a good friend of mine since then. 15

17 When I came back up to the Triangle, shortly after I got back up here, the Appellate Defender's Office was just getting started, and Adam Stein, who at that time was a lawyer in Chapel Hill but who had had a practice in Charlotte and then moved to Chapel Hill; [he] was a well-known criminal defense lawyer and civil plaintiff's lawyer and civil rights lawyer back during the heyday of civil rights. He had been Julius Chambers' first partner in what was then Chambers & Stein. He left Chambers & Stein to start the Appellate Defender's Office in Raleigh, which I doubt if I would have gone with that program if it had not been that someone of Adam's stature had taken charge of that. Adam was the appellate defender for five years, and I learned a tremendous amount from him. He's a very smart, very careful, very ethical, and hardworking lawyer, and I thought he really was a very important influence on me. And we're still friends, and [I] still see him as a very important figure in my development as an attorney. I would really say that Mary Ann and Adam are really the two lawyers who I would say have had the biggest positive influence on my practice, [on] who I am today professionally. DS: What fuels a defender, appellate or public? Where does that energy come from - the drive come from to make you a top-rung lawyer, when it could be easier? You could stay on that bottom rung, like you were talking about earlier. What drives you? TH: Well, Professor Ogletree, from Harvard Law School now but who used to be a public defender in the Washington, D.C. Defender Service (which is generally considered the best, or one of the best, public defender offices in the 16

18 country), recently wrote a law review article about what keeps public defenders going, and he said two things that I thought really rang true for me. He said that the two things for him and that he thought worked for public defenders who stayed in it were the idea of the hero and the idea of empathy. And the idea of the hero was the idea that you are defending somebody that nobody else cared about, who was really relatively powerless as compared to the power of the government, and who may be despised in the community because of what they're accused of doing or what they in fact have done or have been convicted of doing, and that you are sort of the only person between that person and the mob. So this idea of behaving heroically, of putting yourself in harm's way to save somebody else or help somebody else, he said it was very powerful for him. And I would say that is powerful for me, too. It certainly fits well with my notion about our instructions from Jesus, which, you know, are to love your God with all your might and to love your neighbor as yourself, and so that's been a very powerful motivator for me. The other notion was the notion of empathy, which was being able to sort of see yourself in people who commit terrible crimes and to see them, not as people who are entirely different from you or from me, but people who but for a couple of things that happened in their lives could be me. [INTERRUPTION IN TAPE] The other thing that Professor Ogletree talked about in his article was empathy, and that is seeing yourself - not sympathy (that is, the ability to feel 17

19 sorry for somebody who's gotten themselves in trouble), but empathy, in really being able to see yourself in human beings who made terrible choices and who do terrible things and get themselves in terrible trouble. I think that I can do that, although most of the people I see don't have an upbringing anything like my upbringing. I can see some of me in them and some of them in me, and so I think that's been very important in making this sort of work worthwhile and rewarding, which I have felt very good about. I mean, I enjoy coming to work every day, and I look forward to it, feel good about it, and although there's lots of tragedy and sadness in it, I still enjoy it, and I feel very lucky. I have lots and lots and lots of friends who have jobs that they don't really like that much, and that is just the way for them to be able to take nice vacations or do whatever they do on the weekend and have a nice house. All of those things are fine, but I don't think they're a substitute for having a career that you really care about. That's a real luxury in a capitalist society. That's why I feel very fortunate. DS: What values do you believe are most important for a lawyer to possess? TH: I would say the thing that I see that is the most lacking is for lawyers to really be willing to extend themselves on behalf of their clients. I see lots of lawyers that are willing to extend themselves when they can see a direct benefit to themselves if their clients do well, but other than that, I think there is a problem - and I don't think this is a new problem. It's an age-old problem of lawyers being 18

20 able to separate what's in their personal best interest from what's in their client's personal best interest. For example, when you decide what time you go home and stop working on something, or deciding when you're ready and have done all the work you need to do to prepare for some big legal case or some big argument, or do you make an argument that may be unpopular with the court or make the court angry with you personally, but it's something that's in your client's best interest for you to do? I think those sorts of ethical dilemmas are constantly presented to attorneys, particularly criminal attorneys who operate in serious cases; and it is very difficult to do the right thing in those situations. It's so tempting to do the thing that you know is going to make it so the DA's not mad at you and the judge isn't mad at you. Most people won't be able to tell that you sort of sold your client a little short on that day, and I think that happens hundreds of times every day, and it's a big problem. And again, it's the problem of not valuing other people as much as you value yourself. DS: What are bad or undesirable traits you have observed in lawyers you have dealt with in your career? TH: Well, I would say the worst one is selfishness, that is, caring more about other things than their clients. DS: Such as? TH: Well, such as just not willing to really put yourself out on your client's behalf, not willing to risk yourself on your client's behalf, but always worrying 19

21 about your career or worrying about your income, whatever that is, rather than them worrying about who you're supposed to be representing. I mean, the law, as it should be practiced, I think, is a thing where you, as it says when you get sworn into the bar, you demean yourself, you put yourself second for the people you represent. I don't think very many people take that seriously. No one does it perfectly or does it all the time, but lots of people don't even try ever, and I find that very disheartening. There are also lawyers who try to lie or try to trick people and all that sort of thing, although I frankly see that as less of a problem than lawyers that really don't give a damn. I mean, that's the lawyers that really bother me more than the lawyers who are slick or try to have sharp practices. DS: Are any of these concerns valid? I mean, to some extent, do you think lawyers do have a responsibility towards self-preservation? TH: Yes, they do. I mean, I think it's always a balancing act, and that's why I say it was a dilemma. It's always hard to figure out. That's one of the things, of course, that makes it interesting to do, what we do. I think the balance is too much on the side of what's good for the lawyer and not enough on the side of what's good for everybody else. I have the same complaint about courthouses that I have about hospitals. Hospitals are basically run for the convenience of the doctors and not for the patients, and I think courthouses are run for the convenience of the judges and the lawyers and not for the people who are out there seeking justice. Maybe that's just inevitable. That's the way of the world, but I don't think that's good. 20

22 DS: Do you know any personal instances that you've encountered where these have been detrimental to the representation of a client? TH: Oh, sure. I mean, I read about, I see every day sorry representation of people who are in terrible trouble, people whose lives are literally at stake, and lawyers just do not make the effort that they ought to make. And I don't mean, by that, all lawyers. Some people perform heroically and wonderfully, and many more at least try and really care about trying, but there is a substantial minority that just, day in and day out, are just doing enough sort of to get by, and there's really nobody out there who cares. The judge doesn't care. The prosecutor certainly doesn't care, and the client's cares don't mean anything to anybody. He's the least powerful person in the courthouse, contrary to what some people would have you believe, and so it's a bad situation. Although I would say, as I said a while ago, that I think, in general, things have improved in the last twenty years, and people in general get better representation than they used to. But there is still too much bad representation, and it's just as bad as it's always been, in my view. DS: How does one combat or deal with this apathy in the lawyers, particularly in dealing with these serious situations? TH: Well, I think probably one thing that happens is that lawyers are apathetic or don't try their hardest because they're afraid of failure, and they think, "If I really try, I'm not going to succeed, so why try?" I think the same thing is true of some kids who don't succeed in school. In a way, they're sort of 21

23 afraid to give it their best effort because if they give it their best effort and then they still fail, it's like they've learned something about themselves that they don't want to know. So in a way, you sort of pull back if you're in a situation where you're not sure you can succeed, and say, "I'm not going to try that." I think that's what happens with a lot of lawyers is they don't really want to get out there and be in earnest because then they would learn something about themselves. They would learn what their measure is as a lawyer, and people don't want to know that about themselves, I don't think. So they pull back, and they sort of feign some sort of a pose, and [it] varies from place to place what the pose is, or sort of bemusement, or... Tape 1, Side B TH: -is to empower lawyers and to encourage them and to give them the tools and give them support so that they feel confident enough to try their best. So I think some things that have happened that have been good is mandatory continuing legal education and offices like the Resource Center, which Henderson Hill runs here in North Carolina, which offers support to lawyers in capital cases to encourage them to raise the level of their practice in these cases. I think that's been a very positive development. DS: What fears do you have, what fears have you had - have you dealt with these dilemmas yourself? TH: Oh, yeah, I deal with them all the time. And I think what you've always got to worry about is are you getting settled in what you're doing? Is this 22

24 becoming a routine for you? Are you not willing to make the sacrifices that you need to make in order to do a superior job? And it's a constant struggle for me, and I think for most lawyers. You have to keep questioning yourself and stay on yourself. There are times when I have done things, and I know, looking back on it, the truth is I didn't do my best. And sometimes that's been in cases that were of the utmost seriousness. The worst thing about it is I don't really pay the penalty; somebody else pays the penalty. Now, it's somebody else who I didn't have a hand in getting them into the trouble they got in in the first place, but it's somebody who really I've been entrusted to represent. So it's a constant struggle, and it's like being a Christian. It's not something you get saved one day, and then the rest of your life you're a Christian. That's not my view of being a Christian. I think it's every day you struggle to do the right thing, and lots of times you don't. Lots of times you make little compromises and don't do exactly the right thing, but you keep trying. And you try not to lie to yourself about why you've done this or done that. So yeah, it's a big problem for me. DS: Could you tell me about your stint with the police department? TH: Yeah, well, when I first came up to Chapel Hill from being in the Public Defender's Office, before the Appellate Defender's Office had started, I took a job as the assistant town attorney in Chapel Hill. Emery Denny, who had been the longtime town attorney - was still the town attorney there, although he was ailing and would die in a few years, hired me as the assistant town attorney. One of my principal responsibilities was to advise the police department, which was very 23

25 interesting to me and which I really enjoyed, for the most part. It got me back to the sort of stuff that I had been interested in as an undergraduate: in what the culture of a police department could be or ought to be; and what kind of different personality types were attracted to that work; and how you could make it more open and less of a place where people were likely to misbehave as police. And so it was great for me. I only did it for about a year, but it was great for me to be sort of an insider and sort of see what the police department was like, and I made lots of friends doing that [who] are still good friends of mine. Lindy Pendergrass, who is the sheriff of Orange County, was the captain of detectives in the Chapel Hill Police Department when I worked there, and he and I got to be friends, and we're still good friends. He's a neighbor of mine. Ralph Pendergraph, who was a lieutenant in the Chapel Hill Police Department when I was there, is now the chief of police of the Chapel Hill Police Department, and he was a friend of mine then, and he's a friend of mine now. He married another friend of mine and goes to my church with me. Ben Callahan, who was a young administrator in the police department then, is now the chief of police in Carrboro, who was somebody who I knew and liked and got to know something about. Herman Stone, who is dead now, but who was the police chief then, was somebody who I spent a great deal of time with and who I really liked and admired. He was really one of the gentlest men I ever knew, which is amazing, and I think he was too gentle. 24

26 One problem with police work is, just like judges, sometimes people are attracted to that for exactly the wrong reasons, and some people get to be police who that's the last thing they should ever be. The same thing is true for judges. People get attracted to it because of the power and you can kick people around, and you don't have to engage in fair fights. You can sort of step all over people, and then they can't really talk back to you. Well, the same is true with police, in that there are people who like the idea of being able to sort of kick people around a little bit. There is a certain amount of that in every police department, and so figuring out how to deal with that and also how to deal with - there are lots and lots of other people that are just regular, good people who are trying to do an honest job and who - again, it's like being a lawyer. You get put in all of these positions where it is so easy to do the wrong thing, even if you're a good person, to do the wrong thing. It's a very difficult job. People have given you hell all day, basically, and it's very hard to keep holding yourself back all the time. So, I really enjoyed the time I spent working for the police department. There were some things about it that were uncomfortable for me. I was quite a bit to the left politically of most of the people who were there, but I really came away from it really liking and admiring a lot of the people and certainly with a better insight - I mean, I think it's made me better at criminal defense work to have done that, and so that was interesting. 25

27 DS: What do you think the play is between the public defender and a police officer? I mean, is that oil and water? It had to give you an interesting perspective on being a PD? TH: Well, I mean, I suppose it is oil and water in a lot of respects, but in a real basic way, both of them are public service. Both of them are jobs where you're really trying to do something; you're not like a salesperson whose job is basically to sell as much of this product because the more that's sold, the more money you make. You've been given a responsibility to look out for the public interest. And there's a public interest in making sure the people who are accused of crimes have good representation so that people don't get convicted of anything that they shouldn't be convicted of; and there is also a public interest, of course, in trying to protect people from crime and to catch people who have committed crimes. So they have, in a real fundamental way, lots and lots in common, but as you get more particular, it's quite different. There still is a significant class difference, in general, from people who are police officers and people who are lawyers, although lots of people like to underestimate how smart police are. I've found the police department to have the same spread of IQ's that I see in the bar. There are some people who are real smart and there are other people who are real dumb, and I've found that to be true for lawyers, too. But there is a big class difference. A typical lawyer has a background like mine, which is a relatively privileged economic background, 26

28 whereas police officers, a lot of times, are from working-class families. And this [police work] is really a step off the farm maybe, or a step from factory work. Those issues are still very much alive in police work, and where police, I think more than ever, feel sort of like they don't get respect. They don't get respect from the better-educated, wealthier people who they are supposedly protecting. They don't get respect from poor people who perceive the police as oppressive, sometimes quite accurately perceive them that way; so it's a bad job, I think. It's a very difficult job. I've got no interest in being a police officer any more. Once I'd seen how tough that was, it cured me of it, and yet I think it's a very important job. I think we probably underpay police, but I also think that we probably take some people as police officers that we shouldn't, [those whom] police refer to as cowboys, that do not belong. I mean, I think the kind of people who ought to be police officers are people who use force as a last resort. And there are lots of people who, the idea of being able to carry a gun is like the main reason they want to be a policeman. That's a bad situation. DS: There are some people that say the same things about public defenders. What kind of comments do you have on that? They also say public defenders are underpaid and [it] is a very stressful job, and some people would say, "I couldn't be a public defender." How do you feel about that? TH: Well, I think it is difficult, and it certainly can be stressful. I think you have to - if you don't have an overarching ethic where this makes sense as part of your life, you're not going to do it for very long. Most people who become 27

29 public defenders don't do it for very long, three or four or five years, and then they're into private practice and doing something else. And so I think it is difficult, and it is stressful, and to a large extent, it's sort of a young person's thing. But I think the people who stay the course and who do it longer, by and large, are people who are at least successful. Now, there are some people who stay at the same job because they can't get another job or it's easy to stay here and you don't have to go out there and face having to go out there and get someone to buy your services. So there are definitely some people like that who stay in public defender stuff. But I think to stay and be effective, it really has to be something that makes sense for you as part of your life, like what Professor Ogletree talked about. I think that's been true for me. That's been the thing, although I guess I can't make a promise that I'll still be doing this five years from now. I mean, I'm surprised in some respects that I'm doing it now. It feels right for me now, but it also is very - I wake up in the middle of the night sometimes with anxiety attacks and worrying about things that I need to do and sort of always have more to do than I- DS: Why? TH: Oh, just because I have lots and lots of responsibilities, and almost inevitably, more things to do than there is time to do them, and so there's things that get undone or that are not done until the last minute, and so that's stressful. There are some costs, but I think I'm dealing with it pretty well. 28

30 DS: Of all the cases you've argued or participated in, which ones stand out in your mind as most important? TH: Well, there are several. When I was a brand-new public defender down in Fayetteville, of course, they always start you off with sort of the least important cases first, and- [INTERRUPTION IN TAPE] -so you get less important cases as you start out, and one of the first cases I had was a soliciting prostitution case. Somebody had come in over the weekend. Fayetteville's a big Army town, and so there's lots and lots of prostitution there, and a certain number of people who don't live there but will come in on payday weekends, just sort of, as a second job maybe, be prostitutes. So one of the first jobs I got was some young woman who had been arrested for soliciting prostitution up on Hay Street in Fayetteville on payday weekend, who was from somewhere else - didn't have a record or anything - and [she] assured me that she didn't have anything to do with any of this stuff, which I basically believed, although all of my colleagues laughed at me and said it was naive and I didn't know anything. And so I went to court to represent her and really with not much of an idea of how to effectively represent her, and I knew that if this got heard in front of district court judge, the police officer was going to say, "She asked me if I wanted to have a little fun or whatever and said it was going to cost twenty bucks," and she would say, "Well, that's not what happened," and she'd get convicted. So I 29

31 wasn't really looking forward to this trial in district court very much, but the DA in there - the case sort of sat around all day, sat around all day, and nothing ever happened, so I'm just there sort of dreading it. Then at the end of the day, the assistant district attorney says, "Come here, Junior" - he called me Junior - and I walked over, and he turned the shuck over and wrote "VD" on it, which meant voluntary dismissal. He says, "We're just going to throw this thing away. Welcome to Fayetteville." And I have no idea to this day - maybe the police officer didn't show up or maybe they had some doubts about the case or maybe he was just doing this to be nice to me, but I'll never forget that. And then, of course, then I marched out there and got my client, and I think her boyfriend was there with her, and we went out in the hall, and I said, "It's all been taken care of." So that was a big case for me and one of the first and one that I really remember. I also remember the first guy who I represented who was on death row, whose name was Jerome Hamlet, who had killed a drug dealer that had beat him up in Wilmington. And he was on death row. I argued his case, and it came down four-to-three and said that there wasn't enough evidence for the aggravating factor they had relied on, and so his sentence was reduced to life. And so I had, of course, met with him several times at Central Prison before, but I remember when we got that opinion and I went over and told him what had happened, he 30

32 cried, and I cried, and it was really a very important experience for me that it had mattered to him. You know, a lot of people over in prison, one of the reasons they get themselves in prison is they really don't give a damn about what happens to them. They don't care about themselves, so naturally, they don't care about you or anybody they hurt or anything else. They just don't care. But this guy, even though he had killed this guy, he did care about what happened to him, and so it really made a powerful impact on me, and I felt very heroic that day and very happy and thankful that I could be involved in that. Then I guess the third case would be the case I went up and argued in the U.S. Supreme Court in the fall of 1989, about five years ago, McCoy v. North Carolina, which was a major capital punishment case for North Carolina, probably the major case in capital punishment in North Carolina in the last fifteen years, which was one of those things where it was the most important legal thing that I had ever done, and I was the best-prepared for it of anything I had ever done, which was great. So when I went up and argued, although I was nervous as hell, I had spent so much time preparing and practicing, that in a way, it didn't matter that I was nervous because I knew what to say. So that was a very good experience. The arguing was very good, and then we won the case, which was a very exciting and gratifying, and so I would say that would be the third case that I think has been very important. DS: Were there any cases that were difficult or frustrating to you? 31

33 TH: Oh, there have been millions of cases that have been difficult and frustrating. I represented a guy named Bobby Ray Brown in a capital case, and I got Ken Broun, from the law school, and Lou Bilionis - this is before Lou went to [teach at] the law school - interested in the case. Bobby Ray Brown had been put on death row and convicted of first degree murder. It was a witness elimination. The guy who was getting ready to testify in a federal drug prosecution - and Bobby Ray Brown was a local hoodlum up in the Reidsville area. A friend of his - he had taken up with this fifteen-year-old kid, and the fifteen-year-old kid eventually - they never got any leads in the case or never got enough to charge anybody - but a couple of years after the murder, they finally arrested Bobby Ray Brown, and it turned out that they had relied on a kid in the case named Ricky Hopper. And Ricky Hopper had said, "I killed this guy, and Bobby Ray Brown and I did it together, and this is how we did it," blah, blah, blah. There was literally no other evidence that Bobby Ray Brown had anything to do with this case except what this kid said. There was no gun, there was no - nothing else that connected Bobby Ray Brown to this case except for this kid. And he got convicted. I started out representing him on appeal, and we got Ken Broun, and Lou and I ended up working on it, and Andy Penry, a third lawyer, who's running for the House of Representatives from Raleigh now. We worked on that case, and Ricky Hopper, at sometime during the pendency of the appeal, contacted me, or had someone contact me, and so I ended up going to visit Ricky in prison. He had received a probationary sentence for second degree murder in his case, so he 32