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Mark Osler: Ken Starr’s legacy is complicated one

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Ken Starr, here speaking to Tribune-Herald editors at 900 Franklin Ave. in 2017, could be strikingly smart, often kind and patient. But like many in and around Baylor University, one wishes he had done something different with his power and influence.

Like many people including hundreds or thousands in Waco, the death of Ken Starr last week meant something because I knew him. He was often a warm and gregarious man who made a point to meet and remember people of all kinds, which was a strength when he began his job as president of Baylor University in 2010.

His legacy is complicated. In part, that’s because of the sheer number of roles he played over the course of his 76 years: door-to-door Bible salesman, star student, husband, father, Supreme Court clerk, law firm stalwart, Reagan administration official, solicitor general of the United States, appellate judge, special prosecutor, potential Supreme Court justice, mentor to future judges and justices, law school dean, college president, cultural and political pariah, Fox News regular, lawyer working for Donald Trump and more.

Some of those roles went well. Others did not. It could well be that the brevity of so many of these jobs made real and deep expertise impossible.

I met him in 2003. I was asked to moderate a panel at Pepperdine University in Malibu that was to include both Starr, by then a former appellate judge and Whitewater independent counsel, and O.J. Simpson attorney Johnnie Cochran. For a new law professor, it was a daunting task, but once it began I encountered the very best of Starr: strikingly smart, often kind, patient.

We saw each other occasionally over the years. He settled in Waco just as I left Baylor. During that summer, I was asked to interview him for the Wacoan magazine. He insisted on coming over to my office (I had offered to come to his) and we talked for a few hours as the Brazos flowed by outside of my window. In those hours I found something else to like: that he had a characteristic rare in those who hold power, which is the ability to be chastened. When he talked about his own mistakes, he seemed genuinely sad.

Of course, for many, there was a lot not to like. I disagreed with him on nearly every issue and rolled my eyes at some of the things he said on Fox News. That’s the nature of politics, though, and not a moral flaw.

Closer to the bone was the tragedy at Baylor where it appeared that Starr and others ignored the pleas of young women, Baylor students, who had been sexually abused by athletes and others. There Is still much that isn’t publicly known about that mess — some of it will never be known — but at the very least it was a gross breach of the duty that leaders owe to the vulnerable and the victimized.

There was one moment, after I was gone, that I remembered when I heard of his death. In March 2014, a man named Carnell Petetan Jr. was facing a capital murder trial in Waco, defended by Russ Hunt and my former student, Michelle Simpson Tuegel. The jury pool included Baylor President Ken Starr, one of the most well-known ex-prosecutors in the country. He was struck from the jury — surprisingly, by the prosecutors. This is how longtime courthouse scribe Tommy Witherspoon described it in this paper:

One of the objections prosecutors had with Starr was his potential reluctance to convict someone based solely on the testimony of one eyewitness.

“I’d find it very difficult, even if I believe him or her to be honest,” he said. “I might believe him or her, but he might be wrong. I’ve seen too many people on death row who were factually innocent and were convicted on the basis of eyewitness testimony.”

It was a statement of truth and principle, in a quiet moment far from the national stage. And that, too, is part of the complication — because some of those cheering him on Fox News would probably recoil at this part of his intellect and system of belief.

Like many others, I wish that at (many) times Starr had done something different with his power and influence. I wish that he had listened to the reports of young women harmed by a sports-crazed culture. I wish that we had more of the Ken Starr who was struck from that jury in 2014.

But people are complicated. Ken Starr used his personal warmth and sharp intelligence to open many doors: the door to a judge’s chamber, to a law partner’s office, to a file-crammed special prosecutor’s lair, to many of your homes in Waco.

We all know that feeling, of opening a door, crossing a threshold and looking around. Like me, I suspect that sometimes when he opened those doors Ken Starr was not quite sure what to do when he got to the other side. That is the nature of being human in a complicated world.

And that, too, is a part of his legacy, which is now woven into the fabric of our history.

Former federal prosecutor Mark Osler, who taught at Baylor Law School from 2000 to 2010, holds the Robert and Marion Short Distinguished Chair in Law at the University of St. Thomas and the Ruthie Mattox Preaching Chair at First Covenant Church in Minneapolis. His work advocates for sentencing and clemency policies rooted in principles of human dignity. He is a member of the Tribune-Herald Board of Contributors.

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