Keep Your Mind As Open As The Air We Breathe

Monday, May 2, 2011 - 01:00

The Learned Hand Award is something I take tremendous pride in receiving. So, in the spirit of its namesake, tonight I would like to talk to you about a topic that Learned Hand himself embodied, "open-mindedness," and share with you a personal story.

When I was a young prosecutor, I maintained a mindset that, for every case I prosecuted, there was absolutely no doubt in my mind - about the defendant's guilt. Inherent in this mindset was a strong conviction that justice must be delivered - for my client - for the public.

With this position came a strong responsibility. Our overriding obligation was not to obtain a conviction but to insure that justice was done. One specific obligation was to turn over exculpatory evidence to the defense, even at the risk of acquittal. For me, then, I was always certain I had truth, justice and the American way on my side.

In 1992, the year the Innocence Project was created by Barry Scheck and Peter Neufeld, my certainty - that prosecutors had a monopoly on the truth - dissipated. The Innocence Project began to uncover, countless years after the fact, cases of inmates who had been sentenced to death row and were eventually exonerated as a result of what was then newly developed DNA technology.

For me, learning that dozens of cases existed where people - real people - somebody's father or mother or child - were wrongly imprisoned for crimes they did not commit was extremely painful. However, for me, what was even more painful, more emotional, and more shocking was that some people had already been wrongly executed.When I learned that, I cried.

This was a flashpoint in my life. This was when my youthful certainty turned to skeptical "open mindedness." To date, more than 200 death row inmates have been exonerated. Now, not personally knowing the prosecutors involved in these cases, I presume they possessed the same level of certainty that I once did.

I share this experience not to discuss the merits of the death penalty or the evolution of DNA technology, but for the simple reason that we live in a time when everyone seems so certain about their positions - so set in their comfortable corners. Whether it be a defendant's guilt or innocence, gay marriage, or pro-life or pro-choice, we all are certain about our positions on one topic or another. Anything less than absolute certainty today is somehow viewed as weakness.

Today, the topics fueled by certainty have ranged from whether a mosque should be built near Ground Zero, to whether public employees should retain generous benefits and union representation, to whether recent conflicts abroad are morally justified, to whether LeBron James should have left the Cleveland Cavaliers for the Miami Heat.

These aren't conversations where people are listening to anyone but themselves. These are exercises dominated by cross-talking, not understanding and certainly not open-mindedness. And, during these exercises, our problems persist - nothing gets resolved.

The challenges we face today are worthy of debate - spirited debate and discussion from both sides. After all, these are not simple issues we are grappling with. They're vastly complex and nuanced.

Now turning to Learned Hand, he was one of the greatest judges of the 20th Century. He's in a class with Oliver Wendell Holmes, Louis Brandeis, and Benjamin Cardozo. He produced over 4,000 opinions - opinions that were lucid, well-reasoned, balanced and respected.

Hand himself, according to people who knew him, was driven by self-doubt. But he didn't let self-doubt or his own lack of certainty paralyze him. Instead, he used his own intellectual muscle to question, analyze and scrutinize all sides of an issue - never prejudging.

He wasn't weak or indecisive. He was open minded. He listened more - talked less. In the words of Justice Ginsberg, "Hand was wary of absolutes - and critical of those who claimed a monopoly on the truth."

Judge Hand himself once declared, "The spirit of liberty is the spirit which is not too sure that it is right." In a time when everyone seems to have a monopoly on the truth, Judge Hand's ethos of moderation, open mindedness and lack of certainty are worthy of admiration, emulation and celebration.

So tonight, I ask you in the spirit and legacy of Learned Hand to listen more, question more, and keep your mind as open as the air we breathe.