An in-depth interview with Ben Scales, independent candidate for District Attorney, about priorities, the role of law enforcement and more.
District Attorney is arguably the most powerful single local elected position, overseeing prosecution and exercising a great deal of discretion over how the law is enforced. This Spring, a petition drive put Ben Scales, a local attorney active in the push for marijuana legalization, on the ballot as an independent. Scales faces Todd Williams, a defense attorney, who defeated long-time District Attorney Ron Moore in this year’s Democratic primary. The race has already seen some heated controversies, and early voting begins Oct. 23.
Due to the importance of the position, the Asheville Blade is running in-depth interviews with both candidates about their backgrounds, beliefs about how the District Attorney should carry out their duties, what changes they would make and more. This is the interview with Scales. Williams’ interview is here.
David Forbes, Asheville Blade: How did you get into law?
Ben Scales: I always wanted to be a lawyer and my father encouraged that — he was an engineer — as he was raising me. He came to believe that I should work for myself. He said “engineers never get to work for themselves. They always have a boss.” Lawyers often get to work for themselves. So I started thinking about law from that point on.
Then I read “To Kill a Mockingbird” and I really identified with Atticus Finch. I guess you’re supposed to when you read the book. The notion of being able to stand up for a cause in the face of antagonism within the community, stand up for causes that may be unpopular and having the bravery and courage to do that appealed to me. Being skinny and bookish that also appealed to me — that I could slay dragons, so to speak, with my pen.
How long have you been a lawyer and what’s been your experience so far?
I’ve been a lawyer since 1991, when I graduated from law school. I had a couple of summer clerkships while I was in school, most notably with a firm called Balch and Bingham. I believe it’s now the biggest firm in Alabama. Their main client is Alabama Power, their office is in the Alabama Power building. It was a prestigious type of summer job and I was on the law review at law school.
My first job upon graduation was a clerking for a federal judge on the Court of Federal Claims in Washington D.C. It’s a specialized court that handles claims against the United States government, a lot of government contracts, tort claims, stuff like that. I was in that job for a year, then for about four or five months I worked in private practice for a small firm in Lakeland, Fla. while I was waiting for my next job to begin, which was another federal clerkship, this time for the District Court for the Northern Mariana Islands, a federal court for the island of Saipan in the Western Pacific.
It was quite the experience. I had never really been out of the Southeast, other than my little foray in Washington D.C. I was born in Birmingham, Ala., went to school in Florida, went to Georgia Tech for undergrad, stayed in the Southeast and went back to Alabama for law school.
My clerkship was for two years and at the end of the clerkship I was ready to come back to the states, but the woman who moved out there with me became my wife and she really liked it out there. She had a really good job and I came to like it as well.
I was doing freelance legal work for a little while when an attorney called me up one day and asked me to do a research problem for him on a probate case that was going on at the time.
It was a very big probate case, one of the largest in the world. It was the probated estate of Larry Hillblom. He was the H in DHL, he founded the air courier mail business, he invented it basically flying documents around in his luggage. He had grown tired of the day-to-day business of running DHL and he got really tired of the IRS, so he moved to Saipan about 15 years before I did.
In 1995 he was flying his private plane and crashed. They never found any pieces of him at all. E left behind a very large estate, conservatively estimated at $1 billion, a bad will and a number of Asian bar girls who had a really good claim that he was the father of their children. This guy that hired me hired me to help him represent one of those children.
That began an odyssey that kind of continues to this day. I still occasionally get things to do on that case, and it’s been nearly 20 years. My client was two weeks old when I met her, now she’s 18. That case took me all around the world. We were chasing assets down in France, Greece, Hong Kong. We were litigating against DHL in all those forums. DHL was a closely-held corporation and they wanted to keep it that way. All of a sudden, because the way the will was drafted, it left out any mention of children born after the will.
In our system of laws we presume people will want to take care of their own children. The law in Saipan at the time was like the law in most of the rest of the country. If you have a child born after the will, that child takes as if there were no will, which in Larry’s case meant the children — a total of eight kids had claims, four tested out DNA-wise and were proven to be his heirs.
It sounds like an incredibly complex introduction to the law.
It was incredibly complex, sitting at a table with 15-20 other lawyers while $1 billion is carved up, the tax implications, the citizenship implications. We had to set up trusts for the mother and the daughter to make sure that when she grew up she wouldn’t be in an adversarial relationship with her mother.
It taught me a great deal about how much can happen in the backrooms. One of the things Larry’s friends at DHL did was that they convinced the legislature to change the inheritance law retroactively to try to disinherit these children. It was the judge telling them that he was going to rule that unconstitutional that eventually brought them to the table.
Because we couldn’t find his body they had gone into his house and poured muriatic acid down the drains they gathered up all his clothes, his toothbrushes, his personal effects and buried them in the yard with a backhoe. Larry’s live-in girlfriend at the time, once everything was settled, in exchange for immunity pointed out where it was and they dug it all up after we proved everything.
They didn’t want to have brown children sitting at the table at DHL. So what we did was we got all the children and their mothers to submit blood samples. We hired DNA experts — the same ones that the O.J. [Simpson] people used — and they determined that four of the children born in three different countries over a 13-year period all had the same father, who was a Caucasian. With that evidence and the judge saying he was going to throw out the change in the inheritance, we were able to get a settlement that got each child 15 percent of the estate. Our client ended up with about $100 million.
I was able to move here and didn’t have to worry about money, for a little while. I wasn’t so way up in the fee structure and we’ve spent all that money now. I’ve got a mortgage and debt like everybody else. It allowed my wife and I to spend the first few years of our children’s lives with them as full-time stay at home parents, which I wouldn’t trade for anything in the world.
Right after 2001 when my second child was born, my wife was saying “we can’t live here anymore.” She wanted to keep flying home to see her parents and things like that. Before that we would go to Bali, Nepal if we had a vacation. But after the children were born it made sense for us to move back home. The economy was starting to tank in Saipan, the Japanese economy had tanked. She lost her job at the hotel because the hotel had gone under.
So we started looking for places in the states. We had been to a bunch of folk festivals and at these festivals we kept meeting people like David Wilcox, Chuck Brodsky, Billy Jonas, Chris Rosser, all who lived here. With the exception of Chris, they’d all moved here from somewhere else. We thought we’d check it out.
My wife had gone to camp here when she was a kid, so she remembered the mountains. We thought we might settle here. We tried earlier in Austin, Texas, but we couldn’t afford anything. It was the early 2000s, late ’90s. The Dell people had come in and brought everything up. We had friends who lived there who were on a three-year waiting list for a contractor and that kind of thing.
So we found what we were looking for there here. We found a vibrant live music scene, a bohemian-type ethic. It was before the beer stuff really took off, but we went to the Swannanoa gathering and met people and I had my first gig playing at Karmasonics within a week.
We bought a house in Montford and closed in October 2002. We’ve been living there ever since.
From that experience, what led you to end up running for DA?
Let me follow up. The reason I went into such depth about that one case is that it helps inform my later decision-making. When you have a case like that that’s so all-consuming and the stakes are so high, it’s hard to just go back and open up a practice and go back to doing general work.
I had really fallen in love with the notion of an innocent client. When your client is an infant — she was two weeks old when she became our client — it’s very rare in the law. Most people that need lawyers have either done something wrong or they have something wrong in their life that makes them difficult to deal with in some way.
So I started thinking “where am I going to find innocent clients?” While I had been on Saipan, I had been approached by some local people to help try to change the marijuana laws there. The marijuana laws there were written by the Peace Corps, so they were very lax. It was part of their culture. A lot of people grew marijuana and it was all over the place.
But the police could still bust you whenever they wanted to and the police would fly over with helicopters. So these people said “what can we do to change the law?” So I started communicating with NORML in Washington and started learning about the plant and its many uses, way beyond as an inebriant. I’ve come to recognize that that’s a distraction, if you will, from the real issues of how we derive the benefit that I believe our creator intended for us to have with this plant.
So I started thinking about criminal law. I really liked, when I was clerking, doing work on criminal cases. I really liked certain elements of criminal law, I really liked 4th Amendment analysis and the relative powers of the people versus the police. So I thought that I really wanted to get into criminal law, but I didn’t want to represent real criminals, people that I thought had hurt other people.
People always ask lawyers “how do you represent someone you know is guilty?” Well I’m one of those lawyers that would have a really tough time representing someone that I knew had killed somebody.
But I really wanted to do criminal law. So I decided that if I represent people who are accused only of breaking the marijuana laws, they may not be totally innocent, they may have some other messed up things in their life, but at least what they’re asking me to help them with is something in line with my philosophy. I could win a suppression motion, get the charges dismissed and not feel like I’d released a menace to society.
So I decided to open a practice devoted to that. One of the first case I had was representing a fellow named Steve Marlowe. Steve and his wife, Jean, who’s now passed away and was a medical marijuana patient, used to hold these “freedom rallies” on the steps of the courthouse in Columbus, N.C. in the early ’90s, before it was legal for any purposes, anywhere.
They fought these battles and I got to know them. One day Steve called me up and said “you wouldn’t believe what happened. They came out with a search warrant and it was a bad search warrant.”
Every search warrant is a bad warrant in the eyes of the person it’s directed at, but this one really looked fishy. I got looking at it and the person who was the informant in the search warrant came to Steve and told him he had been coerced into lying. He consented to a video statement on that. We filed for suppression, got all the charges dismissed. This was down in Polk County. The judge ordered that all Steve’s grow equipment be returned to him.
It was refreshing to win the case, but it was also depressing that I’d been right, that there was this police malfeasance. It was the time when Chris Abril was sheriff down there. He eventually had to resign. He got a DUI and had some accusations of child sex charges. So there was kind of a leadership void there and some of his officers went rogue on him. I think that’s what happened in this case.
I started doing those cases and developed a reputation for having a “take no prisoners” attitude with those kind of cases.
Around 2007 I was contacted by some legislators in Raleigh, Rep. Earl Jones and Rep. Kelly Alexander. They asked me to help them write a medical marijuana bill, so I went to work on that.
By 2008 there were quite a few states that had medical marijuana legislation, so I took the best parts of those and talked to people all throughout the community about what they would like to see, totally from the perspective of “how do we protect the patients?” A lot of the time when those bills are drafted, it’s from “how do we make sure law enforcement can enforce this?” I wasn’t looking at it from that perspective and I wanted to make sure the right language was used.
For example, you’ll often hear people talk about “driving under the influence” because if it’s medicine and it’s working, you’re under the influence. So I changed it to “while impaired” which tracks more closely with the alcohol statute. I made sure there were protections in there that you wouldn’t lose your housing, you wouldn’t lose your kids, doctors couldn’t be sanctioned. The possession limits were generous enough to where it would allow someone that was eating cannabis, as it takes a whole lot more if you’re making oil and that kind of stuff.
I also made sure that the cultivation limits were measured by canopy size rather than plant numbers, because there are different sizes for different plant strains. The DEA has come up with this wonderful formula for predicting the yield of a garden and it has nothing to with plant numbers, it’s totally based on canopy space. So for possession I used the limits the federal government is shipping to the legal patients — it’s about six-and-a-half pounds per year — and I cut that in half.
We put this thing together and of course, it never even got out of committee. We got one hearing once in the health committee, not even a full hearing. Next time it was introduced it went straight to the rules committee and never went out. The third time the rules committee were so bombarded with constituents calling them on it that they held a hearing and issued an unfavorable ruling, which they never do, they usually bury it. But when they issue an unfavorable ruling, it can’t come back up again that session. When they had a voice vote it sounded like a draw to me, but the gavel came down and then the Republicans said “nope, we’re not going to deal with this.”
It was reintroduced in this short session as a constitutional amendment and didn’t get out of committee. So I had experience working with the legislators and we had several lobbying days when I worked closely with the bill drafting people to make sure that the references were right. Just about everybody along the way was supportive of it except the people voting on it. That’s Democrats and Republicans. The first time we introduced it the Democrats were in charge but they didn’t want to be tarred with that and every time since it’s been a Republican-held chamber.
Being a musician I got called in to help with an organization called the Folk Alliance. It’s an international organization of musicians nad music presenters and DJ. There was a move afoot to create a Southeast region of the folk alliance. The feeling was that the Southeast is the fountain from which all American music flows, so there definitely should be a region here. SO I worked with some folk music business professionals, including Jim McGill in Swannanoa and we founded the organization. I was the secretary-treasurer for the first four years. It’s still going on and they have their conference in Montreat every year.
So you’ve had these different experiences — working with the legislature, working with property cases, probate cases. This Spring, why did you decide to run for DA?
I’ve always tried to make a difference, wherever I am. I heard a lot of grumbling about the DA so I looked into when his term was up and thought that maybe I could run against him. I looked into how’d he done in the previous election and thought “wow, he’s vulnerable, an under-funded Republican almost took him out,” so maybe I could run against him.
At the same time I wanted to make sure I understood what I was getting myself into. I undertook an intense study of the position starting about mid-June of last year. I started talking with people like Jeff Welty at the School of Government in Raleigh, who teaches the course on District Attorneys, about DA’s discretion and authority. I thought “you know, I could do this job.” I’ve led before.
People say “well you’ve never been a prosecutor before” and I answer that by saying “well, there’s another thing I’ve never done, and that’s fail.” Once I learned about how the office is structured, about how the budget is, about how the power is, what the discretion is, I thought I can make a difference in my community doing that.
I thought “Why isn’t’ anyone else doing it? Why isn’t anyone else running against him?” The answer I came up with wasn’t very satisfying to me. A lot of the people who could have run, who had the popularity to win, it would’ve been too big a pay cut for them. It’s not going to be a pay cut for me. From two years ago it would be a huge increase — though from ten years ago a huge decrease — but I’m doing a lot better this year, due in no small part I’m sure because my name recognition is a lot higher and I’m getting a lot of phone calls now.
It’s not about money, it’s about service for me. I started going around and asking lawyers and other friends, begging them to talk me out of it, tell me why it was a bad idea, tell me why I can’t win. Nobody could, they said “oh no, you can win, the question is: do you want the job?”
I knew I wanted the job, but I tried to ask myself why I wouldn’t want it, what would be a reason I wouldn’t want to do it. Nothing came up.
The cases I reject now — I get calls all the time from people who want me to help them with a gun charge or a burglary and I just turn them away or give them to other attorneys who handle those cases — I would want to prosecute those.
Ever since I was a kid I wanted to be a cop. Lawyer, cop, somewhere involved in the law. I have a cousin who’s in law enforcement and we talk to each other all the time. I was jealous of him, what he was doing.
So I thought maybe it’s time for me to put this strong moral compass I have to good use. I know what’s right and I know what’s wrong and I think I can bring that to the office.
DA, obviously, is an incredibly powerful position. There’s a lot of laws to enforce, there’s also a lot of discretion. What is your take on the balance with a DA having to deal with laws that are just or unjust?
I think that one of the duties of a district attorney, and it’s annunciated in the American Bar Association standards for prosecutors, is to work to reform the administration of justice. It’s one of the duties. The overarching, paramount goal is public safety.
But there’s a constraint there of the budget. You have incredibly deep pockets. You can basically, if you want to prosecute a case and you’re short of money, just pick up the phone and you’ll get some resources, though I’m sure [current DA Ron Moore] would tell me it’s not that simple. It’s always going to be an issue of maximizing your resources to ensure public safety.
The $64,000 question is marijuana. I don’t run from my personal beliefs. It’s a topic I’m very knowledgeable about, about the pharmacology, the botany, about the uses of hemp and the plant as food, fuel, fiber, medicine. But it comes back to an allocation of resources. I read a law review article some years back about the use of prosecutorial discretion in medical marijuana cases and it talked about how a prosecutor can effectuate justice by exercising discretion when assured the conduct is for medical purposes, a necessity rather than a choice.
In Florida, the state attorney has an established policy for dealing with medical marijuana cases. There’s no law, there’s no legislature involved, they just said “this is what we’re going to do if presented with the facts in this situation, we’re going to decline to prosecute.” That can happen here.
You’ve mentioned in some previous appearances that you draw the line based on amount [of marijuana]. How would you make those distinctions with amount and which specific areas would you go after? If someone’s caught with a harder drug, how would you deal with that?
Amount is determinative of intent. On harder drugs, I’m interested in prosecuting those. The damage to society, the risk of harm to the individual as well as what people do when they’re addicted, you just don’t see that with marijuana.
I’ve had so many law enforcement officials come up to me since I’ve been doing this, off the record usually, saying “you’re absolutely right. I’ve never busted anyone for murder or rape or robbery or anything that they were high. I can’t say that about anything else, alcohol or any other drug.” But people don’t get high on pot and go break into some place or to get money to buy pot. There’s just not that connection between external crime and cannabis use that there is with other drugs. To me that’s a pretty bright line distinction.
What do you see as the differences in your administration, if you’re elected, with that of the current DA, Ron Moore?
It will look different from the outside. I think Ron was hesitant to ever show his compassionate side. He would often take young people who had gotten in trouble, bring them into his office, chew them out and give them a second chance, but nobody ever knew about that. All we ever saw of Ron was this cold, hard exterior.
I think it’s a personality style where he and I are different. I don’t find any problem with showing compassion and letting people know that this is what I’ve done and this is why I’ve done it. As long as the victim is protected, then I want to make sure that there aren’t future victims.
I’m going to carry on a lot of what Ron’s doing, especially in the area of therapeutic justice, with the drug treatment courts and this veterans court. He did some good things; he created the nuisance court here. I think I’d tweak it from the administrative standpoint. I’d like to say “well, your court date is this date, but your time is from 1:30 to 2. Right now everyone shows up at 9 and waits until 2. Or some of the attorneys don’t show up until then. It’s little details like that.
Ron and I are different people. We are going to relate to our staff in a different way. I’ve often started meetings with a song or go around the table and tell a joke. In this job, which is so serious and you deal with such serious issues of life and death and imprisonment, incarceration, punishment, victims who’ve had their lives decimated by crime. In order to keep everyone human, in order to keep the staff from wanting to bug out, that’s necessary.
In the “solutions” part of your website it refers to “ineffective and problematic leadership” and “a cloud of incompetence and corruption.” Who exactly is that directed at and what does it refer to?
The Innocence Commission things and the public’s perception, to be honest. What the innocence commission, the evidence audit and what led to that and the fallout from that. That’s the main thing, and the scuttlebutt and the rumors going around, that I’m learning were just that. When you have a District Attorney that’s been in office for as long as Mr. Moore’s been and you’ve put as many people in prison for as long as he has, there are going to be stories told that are going to be exaggerated, sensationalized.
Part of Ron’s persona, and I’m not sure it’s a good thing or a bad thing, is that many defendants and their families felt it was personal. I think that was counterproductive.
Moving to your opponent, the Democratic nominee Todd Williams, what do you see as your differences with him in how you’d run things?
I could talk for a long time about that. If there’s a way to preface this: I really want people to learn about Todd from someone other than me. It speaks, I think, to my political naivete, the fact that I’m a newbie. I didn’t go through the system, I don’t have people telling me what talking points to say. I do have a lot of people going “here’s what you should say, here’s how you can take him out” so I don’t want to say anything negative that just makes it look like I’m pointing my finger at him and saying nasty things.
I’ll say this: law enforcement that I’ve talked to — and I’ve talked to a lot of law enforcement officers — would much prefer me to him. He said some things during the primary, he went to a couple of meetings with police organizations that didn’t go well. At first they [police] were just treating me as the lesser of two evils and they told me that. But as the campaign has developed, and especially with Todd’s performance at the CIBO debate, they’ve swung around to be actual supporters. I’m working on a mail piece now to get endorsements. You have to use retired officers, current ones won’t do it.
There will be a much better relationship between law enforcement and the DA’s office if I’m DA.
Early in the campaign, after it was clear you had the signatures, there was a note in an Xpress article about positions to the right of Williams. What exactly did you mean by that?
At the time I was under the impression he would never seek the death penalty. I’m not willing to make that absolute statement. From what I think I heard him say at the League of Women Voters forum is that he would seek the death penalty, so that may be an area where I’m right or left of him.
I think it may be as much in level of support and where my support comes from. My mother’s a life-long Republican. My brother was just appointed to appellate bench in Florida by Gov. Rick Scott. I’ve got many, many close family friends that are Republican. I’ve never been a member of either party.
I felt like, especially coming from where Todd came, and where his support comes from, it would just make sense that I must be to the right of him, because he’s so far-left. I think I’m more in the middle, frankly, and that puts me to the right of him because he’s so far-left.
What do you mean when you say “far left?”
This whole thing about “I’m going to bring a defense attorney’s perspective to the office.” That, to me, looks dangerously close to allowing the defense bar to capture the office. Much like energy regulatory commissions are often captured by the utilities they’re supposed to be regulating, I think there needs to be a healthy adversarial relationship between the defense bar and the District Attorney’s office that I’m not sure would be there if Todd won.
One thing the DA’s office was criticized for was the handling of rape, domestic violence and child abuse cases. If you win the election, how would you change the approach on any of those crimes?
Part of the money I would save in not prosecuting simple possession cases I would want to allocate towards those crimes, if not all the money I would save would be put towards those cases.
Well, I won’t say “all” because I would also like to investigate and prosecute, if I’m able to, crimes against the environment. I’ve seen what happened down there with the CTS spill and it screams like something criminal happened. I believe that at the very least the public nuisance laws were broken.
Do you feel that the local minority community’s been fairly treated by the local justice system and the DA’s office and how would you change things?
I can tell you that the African-American community feels they haven’t been treated fairly. They feel that they’re automatically presumed guilty, they’re presumed to be the suspect. Their word is not taken as truth if it’s a white person speaking against them. They report to me that if a white man kills a black man the white man gets let go and they somehow find a way to charge the black man.
What I would plan to work on, and I’m really looking forward to this, I’ve been developing a wonderful dialogue with the African-American community and I believe I’m going to be able to count on their support. My brother told me not to focus on them because “they’re going to vote Democrat no matter what you do” but I’m getting the sense that that’s not the case.
I want to work with the African-American community on that perception issue and I think I’ll do well there. The community leaders with whom I’ve been speaking, many of whom supported Todd in the primary, feel disenchanted, if you will, ignored since the primary. Of course, now you’re going to print this and they’re going to go running out to him, but whatever. They get a sense, they’ve told me, they prefer me, and a lot of them are going to help me in much the same way they helped Todd in his run against Ron.
You mentioned on your website “preventing overreach” as far as balancing the branches of government. In your view, how does a local DA go about doing that?
Well, this has come up in some of my discussions with the Tea Party people. They would like to see the District Attorney refuse to enforce certain gun restrictions on constitutional grounds. I believe it would a usurpation of judicial authority to decline to prosecute for constitutional reasons. I don’t think a district attorney should do that. That’s a way that’s freshest in my mind. My answer to the Tea Party is: if you think a law’s unconstitutional, challenge it, but don’t put me into your ideological box.
I support 2nd Amendment rights, as defined by the Supreme Court, and that rubs some of them the wrong way. But as officers of the court, we’re bound to follow the decisions of the courts.
You mentioned some administrative changes earlier in noting your differences, and some tweaks you’d make. Are there any other administrative changes you’d make?
I haven’t had a chance — and I probably won’t until I take over — to really look at the nuts and bolts. But I’d like to see if there’s a way to hire another victims rights coordinator, someone to work specifically with victims and witnesses. I feel people are often reluctant to be witnesses, and that’s not good, obviously.
Until I can really look at the budget, I’m not really sure how I’d change the things they’re doing. I’ve looked at the general assignments each assistant district attorney has, and the way it’s working seems to be effective. People are in the areas they want to be and they’re good at it, they’re experts in the fields they’re assigned to. I’ve met individually with all but one assistant district attorney. They’ve all told me they would stay if I was the DA and at least half of them have told me they’ll leave if Todd wins, which I think is significant.
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