Defending the Guilty
The Best Defense.
by Alan M. Dershowitz.
Random House. 425 pp. $16.95.
For years I vaguely disapproved of Alan Dershowitz, although I was hardly acquainted with him. He seemed to be always in the newspapers and on radio and TV, defending objectionable radicals. He wrote rhapsodical reviews of left-wing tracts that I had found irrational and dishonest. In short, I thought of Dershowitz, who is a professor of law at Harvard, as a sort of academic William Kunstler.
The Best Defense has changed my mind. Dershowitz is no mere left-wing ideologue (though he has a left-wing ideologue’s belief that the brave and honorable Jim, in Huckleberry Finn, is an “offensive racial stereotype”), and he does not resemble William Kunstler. He also seems a very able trial lawyer—which is more than can be said for most professors of criminal law or, indeed, of any other kind of law. He is probably a better practitioner than legal theorist, but Harvard (like Yale) has too few of the former and a surfeit of the latter. I have heard, and see no reason to doubt, that he is an excellent and popular teacher.
The book is not (nor is it intended to be) a piece of heavyweight legal scholarship, although there are many shrewd and generally sound observations about criminal justice, particularly the role of defense counsel. The Best Defense is a good example of the sort of book of reminiscences produced by successful trial lawyers like Louis Nizer. The very first chapter, “The Boro Park Connection,” exemplifies its virtues.
The case started with a peculiarly vicious bombing of the office of Sol Hurok, an impresario who had incurred the wrath of Meir Kahane’s Jewish Defense League by importing such Soviet artists as the Bolshoi ballet. Hurok, an old man, was almost killed, and a twenty-seven-year-old girl was actually killed. Three members of the JDL were indicted—all of them residents of Brooklyn’s Boro Park, a hardworking and law-abiding Jewish neighborhood where Dershowitz himself had grown up. The community was naturally shocked and outraged: the president of Boro Park’s board of rabbis prayed at the funeral that “there were no Jews involved. . . . This is not our way.”
Dershowitz was asked to represent one of the defendants, Sheldon Seigel, who had been an acquaintance of his (though not a friend) in Boro Park. Since he could not easily handle a trial in New York while teaching his classes in Cambridge, and since he had no use for the JDL, he undertook only to find a New York lawyer and to consult with that lawyer on any constitutional issues that might arise. But he soon discovered that all of the usual radical lawyers, who gladly represented Black Panthers, Weathermen, and the like, had some more or less plausible reason for refusing to defend right-wing terrorists. (Dershowitz does not name names, but anyone familiar with that section of the bar can make some educated guesses.) So our hero—for Dershowitz, like all good criminal lawyers, is not one to underrate his own achievements—agreed to assume the defense, not only out of a “commitment to civil liberties” but also from “religious loyalty [and] regional parochialism.”
He succeeded brilliantly. By ingenious reasoning he deduced that his client was a police informer. Confronted with this fact, the client admitted that he had been persuaded to give evidence against his co-defendants by threats (including threats of being murdered by the cops) and promises; he had thoughtfully taped (with a concealed recorder) his conversations with the detective in charge of the case. By a series of intricate procedural maneuvers, including a highly unusual rejection of the district attorney’s promise of immunity, accompanied by a motion that his client be tried for murder, Dershowitz managed not only to keep Seigel off the stand as a prosecution witness but to prevent his prosecution for any of the crimes of which the police knew him to be guilty. Without his testimony the court had to dismiss the charges against the other two bombers.
As Dershowitz recognizes, the exoneration of terrorists who were fairly clearly responsible for the murder of an innocent girl was not an occasion for celebration. Injustice had been done, and Dershowitz had played a role in it. About the only bright spot he can see is that the revulsion caused by the bombing led to a dramatic decline in support for the JDL among American Jews.
On the other side, Dershowitz also defended H. Bruce Franklin, a tenured professor of English literature at Stanford and one of the last surviving specimens of the American Stalinist (also, of course, a Maoist). This was not in a criminal proceeding but before a faculty board considering whether Franklin ought to be fired. The board found in essence that Franklin had “incited” students and others to violence and recommended his immediate sacking, advice which the president and the trustees were glad to follow. Dershowitz, although he shared the view of Franklin prevalent among Stanford’s faculty, nevertheless “criticized the decision for failing to draw the critical distinction between ‘advocacy,’ which is protected under the First Amendment, and ‘incitement,’ which may not be.”
I disagree. The fact is that Franklin did urge the students to wage a “people’s war” against Stanford, to disrupt classes and lectures by instructors whose ideas were not (as the old Puritans put it) “savory,” and to close down university facilities, such as the Computation Center, which were involved in research that might have some relation to the military. Violence duly occurred, and reasonable men could find, as the committee did, that the violence was caused at least in part by Franklin’s inflammatory speeches.
Nor do I agree with Dershowitz that firing Franklin was wrong for the same reasons that Stanford was wrong in refusing to allow William Shockley to offer graduate students an elective course on “Dysgenics: New Research Methodology on Human Behavorial Genetics and Racial Differences.” There is no close resemblance between the two cases. For one thing, Shockley, however disputed his theories may be, is not a mere slogan-shouter like Franklin, but a serious researcher. (I question Dershowitz’s assertion, which he does not support with examples, that Shockley’s “obnoxious conclusions were greeted with derision and refutation by most respected geneticists.” Few geneticists have supported those conclusions, but equally few have derided and refuted them. Many agree with Shockley’s basic premise that heredity is at least as important as environment in determining individual intelligence.) More to the point, Shockley has never advocated violence, and has been the cause of it only in the sense that radicals have frequently resorted to violence to prevent his exercise of his First Amendment rights.
There are other intriguing cases here, including those of Bernard Bergman, the nursing-home operator known as “the meanest man in New York,” and Frank Snepp, the former CIA agent who broke his promise not to publish accounts of CIA operations without the agency’s consent. I do not find either man as sympathetic as Dershowitz does. The media and assorted politicians undoubtedly painted Bergman much blacker than he was—there was no evidence that he was responsible for mistreatment and neglect of elderly patients in his nursing homes—but he was not lily-white. As for Snepp, he is a man who broke his word and made money by doing so. The government did not prefer criminal charges against him or seek to suppress his book: it sued him for breach of contract and recovered as damages his royalties on the book. I am less outraged than Dershowitz.
The basic dilemma presented by The Best Defense is the propriety of a lawyer’s using every legal device he can think of to get off a man whom he knows to be guilty—and Dershowitz states over and over what every criminal lawyer knows: “Almost all criminal defendants are, in fact, guilty.” There are a number of answers to the problem. One, best stated by Samuel Johnson, is that it is not for the lawyer, but for the judge and jury, to decide whether the defendant is guilty and, if he is, what his punishment should be. Another, which Dershowitz does not state plainly but which clearly worked on him in several of the cases he describes, is that the first person a good advocate convinces is himself, and what he convinces himself of is that his client may be a criminal but that he is not guilty of the crime with which he is charged, or at least that he is being treated unfairly.
But the best answer to the ethical problem of defending the guilty is the one Dershowitz finally offers: “Consider the alternative.” If the law says that the “guilty” are not entitled to a defense, and the determination of guilt is made by the government, then we have Soviet justice. Dershowitz has seen too much of that (he has been active in the Soviet Jewry Legal Defense Project) to think that the unjust acquittal of some criminals is too high a price to pay to avoid Communist justice. That still leaves us with the rather questionable spectacle of a professor of law bragging about his successes in frustrating justice, but for the sake of the principle we can live with that too.