Just Revenge

by Alan M. Dershowitz

  “So did you go to Palestine?” Emma asked.

  “Yes, on a rickety old boat that almost didn’t make it. We had to evade the British blockade.”

  “Sounds scary,” Emma replied.

  “It was, but the trip was wonderful. It was full of survivors going to a new place for a new life.”

  “What happened to Dori?” Emma asked.

  “We served in the same army unit. Dori became the commander, and he distinguished himself as a ferocious fighter willing to risk his life by leading the most dangerous assaults. His battle cry was ‘Acharai!’—the Hebrew word for ‘after me.’

  “After the war, Dori became a completely different person. His energy seemed to wane. The determined look on his face disappeared. He was living his dream, but it was not satisfying to him. Even his complexion began to turn pale. I worried about him. But I was so busy building my career that I did not listen to him. Then came the trip to Germany in 1956. By that time I was an established scholar teaching at Hebrew University.”

  “You followed in your father’s footsteps,” Emma noted.

  “Yes, and I was invited to Cologne for a conference on the Christian and Jewish interpretations of Ecclesiastes. Dori wanted to come with me to show the Germans they had failed.

  “When we arrived in Cologne, Dori looked around in amazement at its obvious affluence. The Marshall plan had turned Cologne—along with much of the rest of West Germany—into an economic boomtown.

  “When we arrived at our hotel, Dori could not control his anger. ‘They won the fucking war!’ he screamed.

  “I tried to calm him down, but he continued on like a madman. ‘Did you see what Cologne looks like? It’s a paradise populated by genocidal murderers. I can’t believe it. It’s so damn unjust to see killers rewarded.’

  “As we walked the streets, we passed hundreds of men in their thirties, forties, and fifties. Most of them must have served in the war, some of them in the SS and the Gestapo. We saw the faces of killers, and they were smiling.

  “Dori could not stand the thought that these murderers were walking free, with their wives, children, and parents.

  “He was inconsolable. I saw him cry for the first time since the war. We held each other until Dori suddenly broke away and, with a wild look on his face, exclaimed: ‘We must find a Nazi—just one Nazi murderer—and kill him.’

  “He insisted that it would send a powerful message: that no Nazi killer can live without watching his back at all times—that somewhere out there is an avenging angel who can strike at any time. Then he quoted Ivan Karamazov: ‘I must have retribution, or I will destroy myself.’ ”

  “What happened? Did Dori attack any former Nazis?”

  “He tried to pick fights with several German men, but they were invariably polite and friendly. Whenever he said he was an Israeli the response was always the same: ‘I have the greatest respect for the Israeli people.’

  “I could see Dori’s frustration turning to depression. Away from Israel, he lost his bearings. He felt adrift. Revenge is often a function of powerlessness and hopelessness, and Dori felt utterly impotent walking among the new Germans.

  “Then there was his guilt. Like so many other young men who survived, Dori had abandoned his parents, his younger brother and sister, and his grandparents. He was convincing himself that if he had remained in the ghetto, maybe he could have helped his family to escape. I tried to persuade him that it would have been impossible to save the very young and the very old, but Dori was not thinking rationally. Frustration, guilt, depression, loneliness, and a sense of purposelessness are a dangerous combination, especially in an alien place far from home.”

  Max stopped, sighed deeply, and continued. “While I was presenting a paper at the conference, Dori walked up the several hundred steps to the top of the Dom Church, sat on a bench, and wrote me a note.”

  “Oh, no,” Emma whispered.

  “It was a short note, and I remember every bitter word,” Max replied with tears in his eyes.

  Dear Max,

  Hitler promised the German people that if they killed the Jews, Germany would be better off. They killed the Jews, and Germany is better off. I cannot live in a world in which genocide is rewarded. Nor can I do what Michael Kohlhaas did. I am a Jew. I cannot kill the innocent, though every fiber in my body cries out for revenge. Were I to remain alive, and were my frustrations to mount, I could become a Kohlhaas. That must not happen, for the sake of my family name, for the sake of the Jewish people, and for the sake of my own soul. I know only one way to make sure it does not happen.

  I love you, and I know that you will figure out a better way.

  Shalom,

  Dori

  “You lost Dori, too,” Emma said, sobbing.

  “Yes. And his loss was in some ways the worst. Dori’s suicide was the last thing I expected. If I had been told that Dori was under arrest for killing a German, I would not have been shocked. But this! Why? Why is it the victims who suffer, while the killers go on with their lives?

  “The next days were among the worst in my life. I could not leave Germany without Dori’s body, but the German authorities insisted on conducting an autopsy. I would not go back to the conference. I did not want to see anybody, or be consoled by anybody, especially by Germans. I sought out the synagogue and found a young Lubavitch rabbi from America who took care of the ritual preparations of the body. ‘He fell,’ the rabbi insisted, not wanting to confront the difficult religious response to suicide.”

  “He didn’t fall. He jumped. Didn’t he?” Emma asked.

  “Of course he jumped. Yet who was I to make the rabbi’s job more difficult? So Dori, the man who survived the Nazis and the Arabs, fell to his death by accident. That is what the death certificate said. It spared the Germans the need to acknowledge their responsibility for yet another Jewish death.”

  “Did you get any comfort from the Jewish survivors in Cologne?”

  “No, for them suicide was an all too common phenomenon.”

  “That’s so sad. What did you do?”

  “I made a vow to myself. I would never allow Hitler to determine any decision in my life. Hitler was dead. I was alive. Up until now, Hitler made all the important decisions for me and my family—decisions about life and death. And it was Hitler who made the decision for Dori. During my visits to the Cologne synagogue, several congregants had told me that they were staying in Germany ‘to show Hitler that he failed in his goal of ridding Germany of all the Jews.’ Others had told me that they were planning to leave Germany because Hitler did not deserve to have Jews contribute to the building of the new Germany. Hitler was still making the decision for these survivors from his grave. Not for me, no more!”

  “Where was Dori buried?”

  “Dori’s body was buried with full military honors at a Jerusalem cemetery for veterans of the War of Independence. The rabbi in Israel acknowledged that the cause of death was suicide, but declared Dori a victim of the Holocaust. Jews who took their own lives during the Holocaust were not considered as having committed suicide, but rather as having been killed by the Nazis. Sometimes it just took a bit longer.”

  “Did Dori’s suicide increase your need for revenge?”

  “No. It convinced me that I had to get on with my life, if I was to avoid the despair that drove Dori to his death. I knew that I could never eliminate my need for revenge, but I believed that time cools passions and if I could postpone my need for revenge long enough, perhaps it would abate.”

  “Did it?”

  “Yes. Until the seder and finding Prandus. Then I felt like Dori. I had to do something. If I did nothing, knowing that Prandus was so close, I would become Dori.”

  “I was wrong, Uncle Max. I’m so sorry,” Emma said softly. “Thank you for telling me about Dori.”

  Max paused and then placed his hand on Emma’s arm. “I must thank you for listening to me. It has helped me greatly. I wish I had listened to Dori.”

  Chapter
36

  COX FOR THE PROSECUTION

  Erskine Cox pushed his wheelchair past the receptionist through the district attorney’s office. Even before it came to a stop in front of the large oak desk with the nameplate “Georgina Droney, District Attorney,” Cox was shouting: “I think I know why you picked me to prosecute this case, Mrs. Droney. And if I’m right, it stinks. I don’t want any part of it.”

  “Calm down, Erskine, and tell me why you think I picked you.”

  “Because I’m a cripple, and it takes a cripple to prosecute a cripple. I’m a physical cripple, and Menuchen is going to claim he’s an emotional cripple.”

  “Please take that giant chip off your shoulder, Erskine, and face the facts.”

  “What facts? That I need a wheelchair?”

  “No—that you’re my goddamned best prosecutor. When is the last time you lost?”

  “I’ve only been in the office two years.”

  “And you haven’t lost one yet.”

  “So far you’ve given me the easy ones.”

  “They were only easy because you prosecuted them. You’re good, damn it, but this case will determine how good. You’re prosecuting a victim, and that’s always tough.”

  “I don’t believe that victims have a license to break the law—to kill.”

  “I read your article in the Harvard Law Review.”

  Cox had written a brilliant attack on the recent use of victimization as a defense, focusing on cases such as the Menendez brothers, Lorena Bobbitt, and battered women’s syndrome. It was entitled “One Victim’s Wrongs Do Not Make It Right.”

  “Is that why you picked me?”

  “It was a plus.”

  “And was this a plus, too?” Cox asked, pointing to his wheelchair.

  “Look, Erskine. Face reality. You’re a great prosecutor. Great prosecutors use every advantage they have to beat sleazy defense lawyers who use every trick in the book.”

  “So we should be just like them?”

  “There’s one difference.”

  “Yeah, I know. We have the truth on our side. We prosecute only people we believe are guilty. They defend anyone who can pay a fee.”

  “That, and the fact that we play by a different set of rules.”

  “That’s my point, Mrs. Droney. I don’t feel comfortable using my wheelchair as a prop.”

  “I wish it were a prop, Erskine,” Mrs. Droney said softly.

  Cox had been a star athlete at Harvard—crew, squash, and diving. During an Olympic diving tryout, he had broken his back in a freak accident and would never walk again.

  “I can’t tolerate anyone feeling sorry for me, Mrs. Droney, and I’m not going to try to generate any sympathy for myself.”

  “I know that. I’ve watched you in court.”

  “Then what advantage do you think I will bring to the case with my wheelchair?”

  “Precisely what you just told me.”

  “What do you mean?”

  “You just told me that you refuse to generate sympathy for yourself on the basis of what you experienced.”

  “So?”

  “That’s the message I want your wheelchair to send. It will contrast sharply with the message I expect Ringel to try to send: namely, that the jury should show sympathy to this killer because of what he experienced.”

  “I can live with that,” Cox said as he wheeled himself out of his boss’s office.

  Chapter 37

  JUDGE TREE AND THE JURY—FOR JUSTICE

  AUGUST 1999

  “There will be no disruptions or demonstrations in my courtroom,” Judge Jackson Tree bellowed in his deep baritone voice. “This is one of the most serious and difficult cases I have ever tried, and it will be tried by the judge and jury—not by the crowds, not by the media, and not by any grandstanding lawyers. Do I make myself clear?”

  “Yes, Your Honor,” Abe Ringel and Erskine Cox responded like schoolchildren in unison.

  “Now you in the back,” Judge Tree said, pointing to a group of six men who wore swastika armbands on brown shirts emblazoned with “The Aryan Sons of Justice.” Three of them had demonstrated on the courthouse steps while the others saved seats for them in the courtroom.

  “You do have the right to demonstrate, but you will leave your signs outside of my courtroom.”

  “Thank you, Judge. They were scaring me,” said an old woman garbed in a concentration camp uniform.

  Judge Tree scowled at her and said, “Now, look, ma’am, in this courtroom you are no better than they are. Everyone is equal here, regardless of his or her views. I don’t want to hear a word from you, either.”

  Then, turning to Abe Ringel, he said, “I will not tolerate any plants, props, choreographed demonstrations, or the like. I just want to make that clear before we pick a jury. I don’t want a mistrial. And I want everyone in this courtroom to know who is in charge here.”

  Judge Jackson Tree was a take-charge person, an experienced former prosecutor known for his no-nonsense approach to trials.

  Jackson Tree was six feet four inches tall, thus giving rise to his inevitable nickname, “Oak.” He had played basketball for Harvard in the 1970s and had been a magna cum laude graduate of “the” law school, as he always called it. He was two years behind Abe Ringel, whom he had come to know during his years as a prosecutor. They were not friends, though they respected each other professionally.

  The prosecutor, Erskine Cox, was a Harvard classmate of Jackson Tree. They had belonged to the same moot court team, but they were not personal friends.

  “Okay, let’s pick a fair jury—a jury that neither side is completely happy with,” Judge Tree announced as the bailiff brought in the first panel of potential jurors.

  “All right, ladies and gentlemen of the jury venire. Is there anyone who believes they cannot serve on this jury, which will run about a week?”

  Judge Tree obviously enjoyed this part of the process. Massachusetts had just adopted a universal jury service system, under which no one was automatically excluded because of who they were or how important they thought their job was. Judge Tree had been instrumental in pushing for this system and was proud of it.

  A man in his early forties rose. “I run a small business—ten employees. I’m indispensable to its operation.”

  Judge Tree looked the businessman directly in the eye and said, “The cemeteries are full of indispensable people. If you were sick for a week, would your business go under?”

  The businessman hesitated, and before he could answer, Judge Tree continued. “Remember, you’re under oath, and this is a public record. If you answer in the affirmative, I intend to send your answer to your bank. We’ll see how they consider the fact that your business would go under if you were gone for a week. Let’s see what that does to your credit rating.”

  “I guess my business could survive without me for a week,” the businessman said sheepishly as he sat down.

  “And I bet it will make more money in your absence,” the judge said, unable to resist getting the last word. “All right, any more indispensable people in this jury pool?”

  One brave soul, a woman in her thirties, rose.

  “Your Honor, I’m a lawyer, and I have a civil trial scheduled starting on Friday.”

  “I have news for you, young lady. They probably don’t teach you this in law school, but jurors are more essential to our justice system than lawyers—or even judges. Get your priorities straight. I’ll talk to the judge and get your trial postponed, or another lawyer will take over.”

  “But Your Honor, I’ve been preparing for this trial—”

  The judge cut her off. “Does the name Justice Breyer mean anything to you?”

  “Yes, sir, he’s on the United States Supreme Court.”

  “Pretty important job, right?”

  “Right.”

  “More important than yours?”

  “Of course.”

  “Well, guess what happened when Justice Breyer was called to serve o
n one of my juries?”

  “He served?”

  “Damn right he did. He didn’t try to get out of it—unlike you. He served.”

  “Yes, sir.”

  “And do you know what I would have said if he had tried to get out of it?”

  “I think I can guess, Your Honor.”

  “Can you guess what I’m going to say to you, young lady?”

  “I think I can, and I withdraw my request to be excused.”

  “That’s the attitude I like to hear. Any more excuses?” Judge Tree asked rhetorically. Without pausing even a beat, he continued. “Okay, let’s see if any of the potential jurors are biased against either side.”

  Abe Ringel loved jury selection. “All we need is one,” he said to Henry Pullman, the jury expert. “Who do we love? Who do we hate?”

  Pullman had drawn up his usual list of desirable and undesirable characteristics. Leading the list of undesirable characteristics was “belief that the system always works.”

  “I don’t want any bankers, or other people from the top of the food chain.”

  Pullman showed Abe a cartoon he always carried around with him. It showed three fish. The biggest fish was eating the medium-size and saying, “Life is always just.” The medium-size fish was eating the tiny fish and saying, “Life is sometimes just.” The tiny fish was eating nothing and saying, “Life is never just.”

  “I want a jury of twelve tiny fish who believe that life is always unjust,” Pullman barked.

  The first potential juror to be questioned was a man in his early fifties named Jim Hamilton, who had worked in the front office of the Boston Celtics organization for twenty years, until Rick Pitino—the new Celtics coach—had cleaned house.

  “When you were with the Celtics, how did you respond when players made excuses for playing poorly?”

  “Red never tolerated excuses,” the man said, referring to the legendary Red Auerbach.

  “What about you?”

  “I agree with Red.”

  Abe’s questions were designed to give the prosecutor enough faith in Hamilton so that he would not use one of his six peremptory challenges on this potential juror, whom Pullman had rated a nine on his scale of ten.