Just Revenge

by Alan M. Dershowitz

  Abe put his hand on Max’s shoulder. “Look, I know the cops told you that you have the right to remain silent. But that doesn’t mean to your own lawyer and friend. Talk to us, Max. You’re getting me nervous.”

  Max sat silently, looking at the ground. Still no response.

  Rendi tried again. “You know they make you wear those things to take away whatever shred of dignity remains after they’ve arrested you, cuffed you, searched you, fingerprinted you, and put you in a cell with a bunch of real criminals.”

  “I am a real criminal,” Max responded without raising his head.

  “No, you’re not, damn it!” Abe shouted. “You’re a law-abiding, decent person who was provoked beyond all endurance.”

  “I did it, Abe, and I should plead guilty with an explanation. That is the only decent thing to do. It would have been one thing if I had not been caught. They found me, and I cannot lie. I am guilty.”

  “Max, please get it into your head that you’re not guilty.”

  “But I did it,” Max repeated. “I did exactly what the indictment says I did. I kidnapped him, and I caused his death. That makes me a criminal.”

  “How many times do I have to tell you, ‘doing it’ is not a crime. For ‘it’ to be a crime, ‘it’ must have been done with a guilty mind and without a legally accepted justification or excuse.”

  “I make no excuses for what I did.”

  “You never would have done what you did to Marcelus Prandus if you had not been a victim of the Holocaust. As I’ve told you a dozen times, your alleged crime—and I emphasize ‘alleged’—is the direct product of ‘Holocaust survivors syndrome’—a recognized medical condition that eliminates your criminal responsibility.”

  “And as I have told you a dozen times, I most certainly am responsible. If not me, who?”

  “You’re refusing to understand my point. No one else is responsible. It’s just that you may not be legally responsible if we can prove that your crime was the product of a recognized mental condition. At least it will give the jury a legal hook on which to render a sympathy acquittal. It’s our best shot.”

  “It would never work. I am a responsible person.”

  “It worked with Lorena Bobbitt. Remember her? The woman who cut her husband’s penis off?”

  “She said her husband raped her.”

  “Even if he did, that would not have been a defense—if her act was mere revenge. She won because her lawyer argued that she was suffering from posttraumatic stress syndrome when she did the deed, and the jury found her not guilty by reason of insanity.”

  “Did they put her in a mental institution?”

  “Just for observation. A couple of weeks later, they found that there was nothing wrong with her. I guess the surgery cured her.”

  “She had surgery?”

  “No, she did surgery. On her husband.”

  “So you want me to say I was insane when I kidnapped Prandus and then I was cured when he died?”

  “Max. It’s true. You never had a decent night’s sleep while he was alive. When you found out that he was still alive and was about to die a happy death, your illness got worse. Then when you found out about Sarah Chava, you snapped.”

  “I cannot raise this so-called syndrome because it would be unfair to the thousands of other Holocaust survivors.”

  “Why?”

  “Because it would make it appear as if all Holocaust survivors lack self-control.”

  “There is medical literature!” Abe said. “Some Holocaust survivors did commit crimes in the years following their liberation, and the psychiatrists who examined them concluded that their experiences instilled in them a deep-seated distrust of government.”

  “The vast majority of survivors became law-abiding citizens, despite their understandable distrust of governments.”

  “Max, it’s you I’m interested in. You tried to obey the law. You tried to put your faith in governments—in formal justice. They failed you, and you snapped.”

  “If I were to invoke this Holocaust survivors syndrome, it would use the Holocaust as an excuse for criminality. That I cannot tolerate.”

  “I can’t say I agree with you, but it’s your call.”

  “Then it’s final. I am not going to plead insanity or invoke some other kind of mental excuse. I knew exactly what I was doing. I planned it carefully. I am guilty.”

  “Stop that, damn it. You’re not guilty. Don’t you believe that what you did was justified?”

  “Morally, yes. Legally, no. What I did was just, but it was not legal. I once read that Judge Oliver Wendell Holmes scolded a law clerk for saying a judicial decision was unjust. ‘We are not in the business of doing justice, young man, but rather in the business of applying the law,’ he said.”

  “Max, listen to yourself. You’re trying to play the lawyer. You’re even quoting Holmes. Did you go to law school?”

  “Everyone knows that taking someone and holding him against his will is kidnapping, and if he dies, it’s murder.”

  “Prandus poisoned himself. It was his voluntary act. We have the note.”

  “We wanted him to poison himself.”

  “He could have decided not to take the poison. That gives us something to work with on the murder charge.”

  “How can we get Danielle out of trouble? Can I plead guilty in exchange for her being set free?”

  “I think I have a better idea. It requires that you not plead guilty and that we put up a strong defense.”

  “I have no defense.”

  “Yes, you do. It is called justification. We will try to convince the jury that you were both morally and legally justified in doing what you did.”

  “Is this something you are allowed to argue?”

  “I hope so. The judge will decide.”

  “Would I get a lesser sentence if I plead?”

  “The lowest sentence you could possibly get—even on a plea—is ten years. That’s life imprisonment for a man of your age.”

  “So if there is no difference, why bother to fight the charges?”

  “Because you might win. It’s unlikely that we’ll get a complete acquittal on all charges, but it’s possible. Remember Elie Nessler—who shot the man who had molested her son? She shot him in cold blood, with premeditation, while he was handcuffed in a courtroom. It was an open-and-shut case of murder one, but the jury convicted her of manslaughter. Your case is much more compelling. Also, by pleading not guilty, you may be forcing the prosecutor to give Danielle immunity so that she could testify against you.”

  “She would never testify against me. She would go to jail first.”

  “Not if she knows, but the prosecution doesn’t, that her testimony won’t hurt you one bit.”

  “Now, I’m totally confused.”

  “Good. Let’s hope the prosecution is equally confused.”

  “I don’t like the fact that you are treating my trial as a game.”

  “I don’t like it, either, but that’s what trials have become. We’re gonna play by the rules. And we’re going to try to win. Now it’s time for you to dress up in your professor’s suit so the jury will be fooled into believing you were granted bail.”

  As Max changed out of his jumpsuit, he continued to complain. “I hate this charade. Can’t we just tell the truth?”

  “Which truth, Max? Our truth, or their truth?” Abe patted his arm. “See you in the courtroom. Look somber, but confident.”

  “I hate this.”

  Chapter 34

  TACTICS

  “It’s a bad tactic, Daddy,” Emma insisted as the Ringel family discussed Max’s case over a dinner of pasta and pesto sauce—the Ringel version of fast food. “It could alienate some women jurors and backfire against Max. Tell him I’m right, Rendi.”

  “I’m not so sure you’re right this time,” Rendi replied, gulping her tomato juice. “Why is Abe’s defense of justification for Max so different from ‘battered women’s syndrome’?”

  �
��C’mon. It’s so obvious. A battered woman is in actual fear when she kills her batterer. It’s classic self-defense. Max killed for revenge. And I’m personally glad he did. Face it, Daddy, his victim posed no current danger to him or anyone else.”

  “Yes, he did,” Abe joined in. “If Max had not done something to Prandus, Max would have done something to himself. It was Max or Prandus. Classic self-defense.”

  “I can’t believe that Max would ever have killed himself. He survived the Nazis. He’s strong. And in any event, it’s not self-defense when the person killed isn’t in the process of assaulting the person who kills him.”

  “Score one for the almost second-year law student,” Rendi said, patting her stepdaughter on the back. “I think she’s got you there, Abe.”

  “Pretty good. Who did you take criminal law from, Justice Scalia?” Abe smiled.

  “Can’t you ever stop joking, Daddy? This is serious. Max’s life is on the line. My professor taught us that the theory of justification doesn’t apply to killings that are not done in self-defense.”

  “That’s because she doesn’t teach the old case of the sailors who ate the cabin boy. You can tell your professor that not all cases are decided on theory. If I can get the judge to charge the jury with a justification defense, the sympathy factor may click in. Then it’s anybody’s guess.”

  “You’ll never get a judge to give a justification instruction in a case where the person killed didn’t pose a current threat.”

  “Maybe. There is a case in New Jersey where a woman had been abused repeatedly by her first husband, then her second husband threatened her and she killed him. The judge told the jury they could consider the abuse by the first husband in assessing her state of mind when she killed the second husband. You have to admit, there’s an analogy there, sweetie.”

  “We didn’t study that case, either. Where did you find it?”

  “On Geraldo.”

  The debate between Abe and Emma about the tactic to be employed in Max’s defense continued for an hour without resolution. Emma advocated a reasonable doubt defense: keep Max off the stand and argue that the circumstantial evidence didn’t prove beyond a reasonable doubt that Max had kidnapped and killed Prandus.

  “We’ll just wait and see,” Abe concluded. “After the prosecution puts on its case, we’ll have a better idea if we need to put Max on the stand. Max would make a great witness. One of the few who would tell the truth. The problem is that the truth could kill him in the minds of some jurors. In the meantime, Emma, I have a job for you. I really need you to do this.”

  “That’s the first time you’ve ever said you needed me to do something. It must be big.”

  “It is, sweetie. I need you to speak to Max in a way that I can’t. He loves talking to you. I need more information. Things he won’t tell me. Maybe he’ll open up to you. Talk to him, please.”

  “I’ll try, Daddy, but I don’t know whether it will help. He’s a stubborn old man.”

  “No one can resist your charm, sweetie.”

  Chapter 35

  DORI’S STORY

  “Uncle Max, Daddy believes that if you hadn’t done what you did to Marcelus Prandus, you would have killed yourself. Is he right?”

  “And hello to you, too, Emma. That is some way to start a conversation with a friend you have not seen in weeks. No ‘Hello.’ No ‘How has jail been treating you?’ No white lies about how good I look even in this prison uniform.”

  “I’m sorry. I’ve never been good at chitchat. I guess I have a lot to learn about bedside—or in this case jail cell—manners. How are you doing?” Emma asked, looking around the dreary surroundings of the jailhouse.

  “I am fine, considering the circumstances. And I understand how eager you are to do your job. So let us dispense with the, how do you call it, ‘chitchat’ and get right to your question. It is impossible to know what I would have done if Marcelus Prandus had died in his bed, surrounded by his adoring children and grandchildren. I would have been devastated, but I cannot speculate as to what I might or might not have done.”

  “I don’t think you would have hurt yourself. You’re strong. You survived the Nazis. You fought the Arabs. You’re a survivor, and survivors like you don’t kill themselves,” Emma emphasized in the tone of one giving a pep talk.

  As Emma said these words, she noticed Max looking off in the distance, as if he were thinking about something else. Suddenly tears filled his eyes.

  “I’m thinking of my friend Dori,” said Max.

  “You started to tell us about Dori at the seder. I wanted so much to ask you about him, but it was so late, and you were drained.”

  Max moved closer to Emma.

  “Please tell me about Dori. Maybe that will help answer Dad’s question.”

  “It is a sad and difficult story.”

  “I want to hear it.”

  “Dori became the replacement for my family. I found him in the displaced persons camp to which I had been sent, on the outskirts of Munich.”

  “What do you mean, you found him?” Emma asked.

  “He had been a neighbor in Vilna. I didn’t know him well, since his family was not religious. I recognized him. We immediately became inseparable.”

  “What did he look like?” Emma asked.

  “You would have liked him. He was handsome and strong. He looked like a poster for Zionism. Tan complexion, black curly hair, muscular—even after what he had been through. And tough! You’ve never met anyone as determined as Dori. Also very opinionated. He would have given you a run for your money, Emma. His family had been Zionists. They were among the first to be killed. Dori had joined the partisans very early on—before the Nazis took away his family.”

  “Did he know your sister?”

  “Only to say hello. I showed him the picture. He looked at it and said, ‘I remember her. She was very beautiful.’ ”

  “Was Dori part of the group that wanted to take revenge?” Emma asked.

  “Not in the beginning. He was devoted to Zionism, and he argued that revenge would distract the Jews from their primary task of creating a new state. ‘Channel your anger against the British and the Arabs,’ he would tell me. ‘Forget about the Nazis. They were in our past.’

  “He believed that the Nazis who had murdered our families were stupid, small people who would live guilt-ridden, miserable, obscure lives. They were not worth risking our lives over. He urged me not to allow revenge to stand in the way, because it would destroy us like it did Michael Kohlhaas.”

  “Michael who?”

  “It is a Prussian story about revenge which begins with a man who mistreated a pair of Kohlhaas’s horses and ends with Kohlhaas’s burning down several towns, killing the residents. It is a sad story of the destructive effect of revenge, which became an important symbol for both of us. Dori saw that I was in danger of becoming Michael Kohlhaas, since I could get joy only from seeing my enemies suffer.”

  “That doesn’t sound at all like you,” said Emma.

  “I remember one day as I was working on the camp newspaper, Dori walked in and saw me smiling. He said, ‘Aha, I caught you smiling.’ I explained that I was working on the article about the mass suicide of Joseph Goebbels’s entire family in the last days of the war.”

  “That made you happy? Why?” Emma interrupted.

  “Because that monster had to kill his own children—all six of them—before killing himself and his wife.”

  “Why his children?”

  “Because he believed that Jewish survivors would take revenge against his children and torture them.”

  “They never did,” Emma said.

  “The point is that he believed we would take revenge, and that drove him to killing his own children.”

  “And that made you happy?” Emma asked incredulously.

  “Yes, Emma, it did. It was appropriate revenge, because many Jewish parents felt it necessary to kill their own children in order to spare them the torture of the Nazis
. Well, Joseph Goebbels must have felt at least some of the pain of these parents.”

  “Didn’t you get any satisfaction from the Nuremberg trials?” Emma asked.

  “I obtained no pleasure from seeing a few Nazis hanged, or even from Hitler and Göring killing themselves. These people were not human. They were abstract figures in some distant drama. They had completed their mission of destroying European Jewry, but they had failed to Nazify the world, and for this failure they had to die—either by their own hand or by the hand of those who had conquered them. It had nothing to do with justice. It was some perverse form of destiny. I wanted to see Marcelus Prandus suffer.”

  “My dad tells a joke about people so obsessed with revenge that they would rather see their enemies suffer than themselves be rewarded,” said Emma. “I’m afraid you may be offended.”

  “Since I have been in jail, it is difficult to offend me.”

  “Okay. It’s about these two Jewish neighbors from Riga who had a long-standing feud. Moishe finds an old lamp out of which comes a genie who grants him three wishes, but with the condition that everything the genie gives Moishe, he will give double to his enemy Yakov.”

  “I think I see where this is going.”

  “Moishe asks for one hundred rubles. It materializes, but Yakov soon appears holding two hundred rubles. Moishe then asks for a beautiful woman. One materializes. Next morning, Yakov is bragging that two beautiful women appeared in his bedroom. Finally, in exasperation, Moishe asks the genie, ‘Would it hurt me very much if you removed one of my testicles?’ ”

  “That’s not very funny.”

  “It’s not funny to you because you would have willingly given up one of your testicles in exchange for Prandus losing both of his.”

  “You’re wrong. I would have given up both of my testicles in exchange for Prandus losing only one of his. That is how frustrated I was over not being able to secure any justice for my family. Dori made me understand that my own father would have wanted me to go to Palestine rather than to chase his killers.”