The Loudest

David Baugh fights to preserve the Constitution—including the rights of Klansmen and al-Qaida terrorists

Published in 2007 Virginia Super Lawyers — July 2007

It’s the morning of my interview with David P. Baugh, the African-American lawyer who feels so passionate about the Constitution that he defended a Klansman’s right to burn a cross; the lawyer who saved one of the bombers of the U.S. Embassy in Kenya from the death penalty; the lawyer whom Harvard’s Alan Dershowitz described as deserving “a place of honor in the pantheon of free speech heroes.”

Unfortunately, I’m not expected. When I mention the scheduled interview, Baugh’s receptionist looks flustered, tries Baugh’s cell phone several times without luck and then lets me and my female assistant into his office to wait. And snoop.

Baugh’s office space fills the bottom floor of an old three-story brick building he owns. It sits in downtown Richmond, a stone’s throw from the 90-foot Confederate monument in Hollywood Cemetery. The hardwood floor in his office creaks as I poke around. He displays a few awards but not nearly as many as he has earned.

What does fill the wall and shelf spaces are light-hearted adornments. On his mantel sits a “Jerk Bowl”—a bowl filled with slips of paper telling the reader his or her faults. Beside his desk hangs a poster of a hippo preparing to dive from a platform into a pail of water, the words “No guts, No glory” emblazoned above. His desk is an explosion of paper, every inch of its broad surface covered. Organization, as I’m about to discover, isn’t his thing. 

 

Assistant Federal Public Defender Gerald Zerkin describes Baugh as someone who takes over any room he steps into. “There are those lawyers who have a very special presence in the courtroom,” Zerkin says, “and he’s one of them. … He’s aggressive outside the courtroom too. Maybe not intimidating, but certainly larger than life.”

Sure enough, when Baugh comes whirling into the office, the atmosphere becomes electric. His intense and energetic manner belies the fact that he will be 60 this year, though gray tendrils creep through his short beard and close-cropped hair, and his face is worn with weathered crags. He wears a crisp, black suit appropriate for a courtroom appearance and a hoop earring in his left lobe that signals a tendency to dance to his own beat—literally, I discover later, when he plays a Temptations CD, For Lovers Only, and serenades my assistant.

He apologizes for the delay and settles in. “I had a 9 o’clock in the city,” Baugh says, “and a 9:30 out in Goochland—didn’t get there until 10:30, but I called and told them I was going to be late, and when you’re a hot-shot lawyer, they let you do that. Walked in, late, arrogant, cloaked in my duty to defend the Constitution, and left the young prosecutor lying in the dust.” Baugh puckers and kisses the air. “I just love it.”

Opposing counselors aren’t the only ones intimidated by Baugh. When Manhattan lawyer Fred Cohn asked for Baugh’s help defending Mohamed Rashed Daoud al-’Owhali, one of the bombers of the U.S. Embassy in Kenya, he may have gotten more than he bargained for. “I scared the hell out of Fred,” says Baugh. “I said to the jury, ‘If you really think that killing this kid is going to make these people feel better, if you really think that they’re not going to listen to that song and start crying or they’re not going to notice that empty chair at Christmas and break down in tears, if you really think that killing him will make that go away, I’ll hold him down and we’ll kill him together.’” Though the tactic frightened his co-counsel, it may have convinced the jury. Al-’Owhali was spared the death penalty.

Part of Baugh’s presence comes from his use of theatrics. When he speaks, his voice rises thunderously or drops to a whisper. “The purpose of communication is to be understood, not to talk,” Baugh says. “Drama, tone, volume, inflection—all those things draw a line under what you say.”

When he explains how the Bill of Rights is like life to him, Baugh slaps the table for emphasis. “It’s the reason”—THUMP—“the essence. It is the procedure that makes us Americans. Justice is the process, not”—THUMP—“the result. … I have friends who are judges now, and I ask them, ‘What’s your job as a judge?’ ‘My job as a judge is to see the guilty are convicted and the innocent are set free.’ That’s when I know I’m in the presence of an idiot.”

Saying what’s on his mind is another Baugh trademark. He’ll pause and his lips will move as if he’s rehearsing, then a rush of concise words will spill out. Other times, he’ll let something fly uncensored, frequently getting himself in trouble. Over the years, Baugh has been expelled from college, cited for contempt of court and arrested. Numerous times.

“You look for opportunities to show your mettle,” says Baugh. “It’s gonna get you killed, but still … everybody can be a hero. Even if being a hero is that four or five of your friends are doing something stupid, something oppressive, and you are the one who tells them, ‘This is wrong. We shouldn’t do it.’ Even if nobody knows about it. That is a rare opportunity, and I was taught to look for those opportunities.”

 

Baugh was born into a family that cherished education. His mother was a schoolteacher and his father was one of the famous Tuskegee Airmen who earned the Distinguished Flying Cross, the French Legion of Honor and most recently the Congressional Medal of Freedom. “I remember in fourth grade,” Baugh says, “we had to line up for the bus in California, and they came around the corner, [my father] and a bunch of his pilots, and they had their flight suits on and their helmets and picked me up that day. And I remember thinking about the other kids: Your daddy is not a fighter pilot, you poor schmucks.”

Baugh’s parents encouraged him to read anything he could get his hands on. When Baugh was 7 years old, he saved up his allowance to buy a copy of Robin Hood. His father found out and told him to never do that again, that it was his job to feed, clothe and educate him. He told him: For the rest of your life, if you ever need a book, just ask me for it.

“My father would buy me books,” says Baugh, “and my mother taught me to talk. It was a match made in heaven.”

He grew up on military bases, where rank determines status more than race. When the family moved to Tennessee, he received an up-close look at the ugliness of racial hatred. He was arrested, and received nine stitches in the head, for participating in the 1960 Nashville sit-ins.

“To be around all those other young people who were willing to risk their lives was character-building,” Baugh says. “There was an innocence and a strength about it that probably did a lot for me and brought a lot of the things that my parents taught me to fruition. As my mother used to say, ‘A principle isn’t really yours until it’s tested.’”

At Virginia State College, Baugh continued to test principles and challenge authority. In his senior year, he helped lead a campus demonstration to protest the breakup of historically black colleges throughout Virginia. “I wasn’t leading,” Baugh says. “I was loudest, but I wasn’t leading. Yes, I was expelled. Probably the best thing that ever happened to me. That and going to law school.”

Baugh fought his expulsion, with ACLU attorney Arthur Samuels representing him. “I remember sitting in court in Richmond watching him defend me and I thought, ‘God, this looks like such fun and it’s so meaningful.’ He was just wonderful.”

From then on, Baugh knew he would be a lawyer. He wasn’t a scholar as an undergrad, but he breezed through law school at Texas Southern University. “It was easy,” he says. “Ever since I realized that law is philosophy—that’s all it is! It has nothing to do with right, nothing to do with wrong, nothing to do with justice, nothing to do with injustice. It has to do with the law. And when you put those other considerations down and you look at it for what it is, damn, it’s so clear.”

Baugh became a Texas prosecutor—not a great fit for someone prone to bucking the system. In his third year as an assistant U.S. Attorney (AUSA), Baugh argued with a judge in court. “The judge told my boss that he wasn’t taking criminal cases from Beaumont, Texas, anymore as long as that Baugh boy was there.”

He moved to Virginia in 1981 to take another AUSA position. This time his tenure lasted two years when an episode in court led to Baugh’s “permission to resign.”

“I said, ‘You know, Judge, there are a lot of misconceptions about sentencing,’” he explains. “‘A lot of people say white-collar criminals get less time and all that, but I’ve researched a lot of the cases in my office and I have found that the color of the collar doesn’t seem to be the defining factor.’ And he said, ‘Mr. Baugh, are you telling me that I consider race in sentencing?’ And I said, ‘Well, yes I am.’ As they say in Texas, you could’ve heard a fly piss on cotton. It got real quiet in that courtroom. After that, I was no longer a Fed.”

 

With criminal defense, Baugh finally found a profession that fits his personality, one where challenging authority is expected, and a firebrand is welcomed.

“In addition to being a great trial lawyer, a great strategist, a great believer in the common sense of juries,” says Zerkin, “he has a great skill of getting to the weaknesses in someone’s testimony. He is an exceptional cross-examiner of professional witnesses, especially law enforcement witnesses. His time as a U.S. Attorney has helped him greatly in that regard.”

Charlottesville attorney Steven Rosenfield describes Baugh as a mentor and hero to countless criminal defenders. “He is consulted regularly by lawyers from around the state,” Rosenfield says. “I’ve eaten lunch with him and lawyers have come over and asked him questions. On more than one occasion outside the courthouse I’ve heard one lawyer say to another, ‘I’ll get in touch with David Baugh and see what his thoughts are.’”

“David is a civil libertarian because he can’t help it,” says Kent Willis, executive director of the ACLU of Virginia. “He doesn’t know how else to do anything.”

Since the early ’80s, Baugh has served as lead attorney for many ACLU pro bono cases, and in 2006 the Virginia State Bar honored him with the prestigious Lewis F. Powell Jr. Pro Bono Award. Willis will also refer people to Baugh if they contact the ACLU with a case outside its purview. “I can’t remember David turning me down anytime I called him to help,” Willis says, “even though he is not going to get paid and it’s not going to be a case where there’ll be any press.”

“I have the opportunity and the obligation to make it better for other people,” says Baugh. “I’m an American, and Americans do not like injustice. So, I do it … pro bono doesn’t just mean free. Pro bono also means for the public good. My earlier secretary used to tell me I did it so I could go to heaven, because I’m such a rat bastard most times. Sometimes I’d do a big case and she’d come in here and say, ‘You can go bitch-slap a beggar today and still get in!’”

Perhaps the most remarkable action of David Baugh’s career is that he didn’t hesitate to represent Klansman Barry Black. “Mr. Black tried to hire 12 lawyers and couldn’t get one,” Baugh says, “and I could understand why. A white lawyer, people would say, ‘Now you know how ol’ Charlie feels about the Klan.’ No one, I didn’t think, was ever going to accuse me of being a closet Klansman. So the issue has now been sanitized. This is now a straight First Amendment issue.”

Baugh argued with the wording of the Virginia statute that said it was illegal to burn a cross in Virginia with the intent to intimidate. “If you take two burning sticks like this,” Baugh explains, holding two pens straight up in the air, “it’s legal; you put them like that [he crosses them] it’s illegal. You can’t regulate content under the First Amendment, so it was a no-brainer.”

Baugh argued the original trial, and University of Richmond law professor Rod Smolla handled the appeal, which went to the U.S. Supreme Court. The Court upheld a state’s right to ban acts of intimidation, but they agreed with Baugh’s position that burning a cross did not by itself equate to intimidation. Black’s conviction was overturned.

“Every time the government loses,” Baugh says, “the Constitution gets a little stronger. Even if the guy is guilty. Every time you make the government adhere to the rules, the rules get a little bit stronger. It’s a whole lot more important that we protect the rules than we protect order. … When I had that Klansman’s case, he was on the same side I was on. There are only two sides: the government and everybody else.

“To show you how things come full circle, when I took the Klan case, I was sitting here working and when my mail comes in there’s a card, and I opened it and it was from Arthur Samuels and it said, ‘Thanks for the payback.’”

 

If he could do it all over again, Baugh admits, “There are a lot of things I would’ve done differently, but I don’t think any of them are things where I will lie on my deathbed and say, ‘I wish I had …’ Except maybe not spending enough time with the kids, spending more time traveling and working when I should’ve been at home.”

Baugh also wishes he would’ve taken better care of himself. He’s a smoker, and cancer has had a couple of rounds with him. Doctors found a benign tumor on his spine years ago and last summer they discovered another one. This time it was in his brain.

“You know something’s wrong when you go in to do an MRI and the MRI operator comes out and tells everybody else, ‘You mind giving us some privacy?’ So he and another doctor did 11 1/2 hours de-bulking it and I went home four days later [with the cancer removed]. I was very fortunate. I remember sitting there thinking, ‘You could die.’ But this has been a great life so far. I could go out now pretty good.”

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