Just Revenge

by Alan M. Dershowitz

  “You’ve got to win, Daddy. I can’t bear the thought of Max dying in prison after what he went through.”

  “I don’t know, sweetie. . . . There’s something missing from our case. It doesn’t have a sense of completeness. I’m worried.”

  “Is there anything I can do?”

  “Not that I can think of. It’s in the hands of fate—and my closing argument.”

  “Then you can do without me for the long weekend? I promised Jacob I would go to Amsterdam with him to meet his family. It’s his father’s seventieth birthday. He wants to introduce me to everybody. We were supposed to go a few months ago, but we put it off to do your research. This is our last chance before school begins.”

  “Go, sweetie. I’ll make do without you.”

  “I’ll only be gone five days. I’ll be back before closing arguments.”

  “Good. I’ll try mine out on you. Can I drive you to the airport?”

  “Jacob is coming by. We’ll go together. Go back to your preparation. You need the time.”

  “Thanks for the vote of confidence.”

  Chapter 45

  IN THE CELL

  “Well, how did we do? Will I be spending the rest of my life in these clothes?” Max asked as he ate a porridge of indeterminate flavor.

  “I have to be honest, Max. We’re losing. I can see it in the jurors’ eyes. Pullman says the same thing. There’s something missing.”

  “We have told the truth. That is all we can do,” Max replied.

  “We may not have told the jury the whole truth—because you may not know the whole truth. That’s certainly what the prosecutor is going to try to prove. He just told me he is calling one brief rebuttal witness this morning, a doctor named Woolfram Gutheil.”

  “I don’t know any such doctor.”

  “He’s a shrink. They’re probably going to ask him about confabulation.”

  “I did not make up what happened at Ponary Woods. How dare the prosecutor suggest I did! He reminds me of those terrible people who say there was no Holocaust.”

  “You mean the ones I said I would defend?”

  “What a world we live in. It’s getting a bit too complex for this tired old brain,” Max said, shaking his head.

  “Let’s get back to confabulation, Max. You’ve got to put this in context. Cox is no Holocaust denier. He’s just a lawyer doing his job. Confabulation is a fact of life. I’ve used it myself in cross-examining witnesses. The beauty of it, from the lawyer’s point of view, is that no matter how honest the witness is and how certain he is that he remembers, it is always possible that the memory is an unconscious confabulation. There is always a doubt.”

  “Unless there is an eyewitness.”

  “That’s right. Now don’t tell me you know about an eyewitness to Ponary Woods.”

  “I only wish there were one. The only other witnesses were Sarah Chava and the killers,” Max said sadly.

  “I’m sorry. I shouldn’t have said that,” Abe said as he finished his breakfast and straightened his tie for court. “Let’s see what Dr. Gutheil has to offer.”

  “Abe, I trust you. I just don’t understand you.”

  “Hardly anyone does,” he said, flashing a quick smile. “Ask Rendi and Emma.”

  “Thank you, Abe, regardless of how this ends up. Thank you for being a friend.”

  Chapter 46

  CONFABULATION

  The short, balding man with the white goatee took the witness stand and swore to tell the truth in his distinctive Viennese accent.

  “Are you an expert in memory loss?”

  “Yes. I have studied that subject for forty years.”

  “I am aware of Dr. Gutheil’s expertise, having used him as a witness on several occasions myself. I will stipulate to his expertise,” Abe said.

  “Have you studied Holocaust survivors?”

  “I have. I, too, am a survivor. Terezen,” Dr. Gutheil said, rolling up his jacket to show a number tattooed above his wrist.

  “Have you made a particular study of the memory of Holocaust survivors who were traumatized?”

  “Yes, I have.”

  “Would you tell the jury about your conclusions?”

  “I studied several different groups. The first consisted of survivors who did things of which they may later have been ashamed—for example, those who served as capos or who served the Nazis in other ways. And those who took food from weaker inmates or who abandoned their families. After they were liberated, some of these people honestly forgot what they had done and adopted the stories of others who had done praiseworthy things.”

  “Objection. There is no suggestion that Max Menuchen did anything of which he was ashamed. This testimony is irrelevant.”

  “I’ll tie it together, Your Honor. Give me a minute,” said Cox.

  “Fine. Tie it to this defendant or drop it.”

  “Is it true that most survivors felt shame just for surviving, while their family members perished—even if they did nothing shameful?”

  “Yes. Many believed they could have done more—that they survived because of selfishness.”

  “Even if that wasn’t true.”

  “Correct.”

  “Did you also study survivors who were seriously injured, such as by shooting?”

  “Yes. Many of them had retrograde amnesia with confabulation.”

  “Explain.”

  “They lost their actual memories for what occurred prior to their injury, and then reconstructed the events circumstantially.”

  “What do you mean?”

  “They filled in the blanks by assuming that certain events had occurred.”

  “Let me ask you a hypothetical question: Assume that an eighteen-year-old was shot in the head and rendered unconscious by the bullet. He then wakes up and sees members of his family dead. Is it likely that he would have retrograde amnesia for the events immediately preceding his injury?”

  “Quite likely.”

  “Is it likely that he would then confabulate what must have occurred?”

  “Yes.”

  “Would he realize that he was confabulating?”

  “Probably not. That is the tricky part of confabulation. Even when the patient honestly believes that he is actually remembering this real event, he may be remembering the confabulation. We can never know, without external evidence.”

  “So in my hypothetical, even if the patient ‘remembers’ that a particular individual shot him and his family, it is entirely possible that another individual may actually have done the shooting.”

  “That is entirely possible. Without another witness—an independent person who saw the same event and remembers it the same way—it is impossible to know.”

  “No further questions.”

  “Any cross?” Judge Tree asked Abe.

  “A few questions, Your Honor. Dr. Gutheil, if a person honestly believes that he saw a particular person murder his pregnant wife and baby, would his passion for justice be just as great regardless of whether it was an actual memory or a confabulation?”

  “I don’t know. I have never studied that question. It is an interesting one, but I’m afraid I can’t help you.”

  “Why don’t you try? Let’s consider this logically. In the mind of the victim, the person is the killer. Doesn’t it follow that his passion for justice would be identical?”

  “Logically, perhaps, if the mind were always logical. Passion is as much a function of the unconscious as of the conscious. If the unconscious ‘knows’ that the memory is confabulated, maybe the passion will not be as great.”

  “That is speculation, isn’t it?”

  “Yes, but so is its opposite.”

  “No further questions.”

  “The prosecution rests.”

  “Does the defense have any surrebuttal?”

  “May I have until Tuesday morning to decide, Your Honor? Dr. Gutheil was a surprise witness. I want to assess the impact of his testimony before I decide whether to re
st or call a surprise of my own.”

  “Okay. Tell me Tuesday by nine A.M. Have a happy Labor Day, everybody.”

  Abe was bluffing. He had no surprise witness in mind, and he wanted to spend the long weekend thinking about whether to try to find one.

  Chapter 47

  THE SURPRISE WITNESS

  The bus transporting prisoners was late on Tuesday morning. One of the prisoners had experienced a seizure on the way from the jail to the courthouse, and the bus had to take him to the prison hospital. The jurors were seated, and everyone was waiting for the defendant to arrive.

  There was no time for Abe to tell Max that he had no other witness to call. The case would go to the jury with Abe feeling a sense of incompleteness and with the prosecution having planted the seed of confabulation. Pullman was predicting a conviction on both counts.

  As soon as Max was brought into the courtroom, Judge Tree barked, “Call your next witness, Mr. Ringel, if you have one. The jury has been waiting long enough.”

  Abe remained uncharacteristically silent.

  “Do you have a surrebuttal expert, Mr. Ringel? Or are you going to rest?”

  Abe looked at Judge Tree in frustration. He had decided against another expert witness after conferring with several neuropsychologists and psychiatrists. No reputable expert would disagree with Dr. Gutheil. Abe could, of course, argue in his summation that it didn’t really matter whether Marcelus Prandus actually pulled the trigger as long as Max believed he had. Yet he was worried that some of the jurors might feel differently about what had been done if they weren’t certain that Prandus had actually pulled the trigger.

  How could he close this loop? As Abe was pondering this question, his daughter, Emma, burst through the courtroom door and ran up to Abe. She was huffing and puffing as she blurted out: “Recess, Daddy, ask for a recess.”

  “What ground?”

  “Make one up. It’s important. We’ve gotta talk. Don’t rest. I found someone.”

  “Your Honor, my daughter here tells me I need to request a recess before I decide whether to rest. And I have learned never to disagree with my daughter. May I ask the indulgence of the Court for a few moments?”

  “I have a daughter, too, Mr. Ringel. You have two minutes to confer with her and make up your mind whether to rest or call a witness. Two minutes.”

  Abe and Emma scurried over to a corner of the courtroom. “This had better be good,” Abe whispered. “What do you have? An eyewitness?”

  “Next best thing, Daddy. We found a letter that Sarah Chava wrote just before she died. She describes everything she saw in Ponary Woods. It matches what Max remembers. He wasn’t confabulating. He was right on. The letter proves it.”

  “How did you find the letter, sweetie? More important for now, how can we authenticate the fact that she wrote the letter? Judge Tree is not going to just take our word for it.”

  “We have a live witness. He’s outside with Jacob. I ran ahead. We found him late last night and flew him in. I tried to call you this morning, but I couldn’t reach you. I reached the clerk’s office. They told me the trial was resuming. I rushed over. You’ve got to call him as a witness. I’ve prepped him. Here are my notes.”

  As Emma handed her father the airline stationery on which she had scribbled her notes, Judge Tree banged his gavel. “Time’s up, Mr. Ringel. Call your witness or rest.”

  Abe announced, “I have one final witness,” and then turned to see a tall, blond man walk through the door at the rear of the courtroom. As he strode down the aisle, every eye focused on his face—his deep blue eyes, his high cheekbones, his wavy blond hair, his pale complexion. The surprise witness reached the front row of spectators and turned to his right. His eyes locked on the man who had spent the entire trial sitting in the row behind the prosecutor’s table. The two men stared at each other in shock. Everyone else in the courtroom began to murmur and whisper as the recognition set in that the man being called to the witness stand was no stranger. Peter Vovus was engaged in heated conversation with the old Lithuanian man in the wheelchair, who was gesturing wildly at the man being seated in the witness chair.

  Max Menuchen’s heart skipped a beat: to Max, the man’s features resembled those of the Lithuanian killers who had filled his nightmares, yet there was something about his eyes that was closer to home. Who was this man who stirred such a confusion of emotions in him?

  In a strong voice, Abe spoke: “I call as my final witness, Max Menuchen.” A shudder went through the courtroom, broken only by the prosecutor’s shrill objection. “That is not Max Menuchen!” Cox bellowed. “He’s making a mockery of this proceeding.”

  “Everything will become clear in a moment,” Abe assured the judge. “With the court’s permission, I would like to begin questioning the witness. My daughter tells me that he does not need a translator.”

  “Proceed,” ordered Judge Tree, as eager to solve the mystery as everyone else in the courtroom.

  “What is your name?” Abe asked the tall stranger.

  “My name is Max Menuchen,” the man replied with a thick Eastern European accent.

  “How did you get the name Max Menuchen?”

  “My mother gave me that name at my birth.”

  “Who was your mother?”

  “My mother was Sarah Chava Menuchen.”

  Even before the witness could complete his answer, the elder Max bolted out of his chair and ran toward the witness box, followed by a bailiff. “You are Sarah Chava’s son? Oh, gottenyu. Is she alive? Please tell me,” he implored.

  As Judge Tree banged his gavel and shouted for order, the witness replied in a sad voice, “No, my mother has been dead for more than fifty years. I was a child when she was killed.”

  “I think it’s time for a recess,” Judge Tree announced. “We’re not going to get anywhere until there is a brief reunion. Quarter of an hour, and then we reconvene.”

  Chapter 48

  REBIRTH

  The two Max Menuchens were escorted into the adjoining counsel room that had been reserved for Abe’s legal team and for interviewing defense witnesses.

  “You are really Sarah Chava’s son—my nephew?” the older man asked awkwardly, tears flowing from his eyes.

  “I am Sarah Chava Menuchen’s son. She wrote in her letter that her brother, Max, had been killed at Ponary Woods, along with the rest of her family. I have always believed—until last night—that I was the only living member of the Menuchen family.”

  “Your mother saw me shot at Ponary Woods. She had every reason to believe I had died along with the rest of the family. I managed to survive. I had no idea that Sarah Chava had lived long enough to have a child. Thank God. Thank God,” the older man exclaimed, moving toward his nephew. They embraced silently for a moment until the younger man began to cry.

  Max asked his nephew, “Do you have children?”

  “No, I do not,” the younger man answered.

  Abe, Emma, and Rendi stood back and watched as the two men looked deeply into each other’s eyes.

  The younger man finally broke the silence. “My mother named me after you. She loved you more than anything. She wrote in her letter that she wanted to keep your memory alive by naming me after you. I am honored.”

  “And I am honored to share my name with you,” the older Max said.

  “I’m afraid that we’re all going to have to learn the rest of the story from the witness stand,” Abe said. “Bailiff says we’ve got to get back into the courtroom.”

  The two men named Max Menuchen walked side by side back to the courtroom as the older man reminisced to his nephew about his beloved sister. He took the old photograph of Sarah Chava out of his pocket and showed it to her son. He had never seen a picture of her. He had only imagined how she looked. “She was even more beautiful than in my dreams,” the younger man said, gripping the photograph.

  Abe walked with Emma. “How did you find him?”

  “Some good investigative work and some great lu
ck,” Emma said, smiling.

  “You told me you were going to Amsterdam to meet Jacob’s parents.”

  “That’s where we went. We were having Shabbat dinner with Jacob’s parents, and I was talking about how Max had searched all over for Sarah Chava with no trace. Jacob’s mother asked me whether Max had looked in the convents around Auschwitz, since one of her friends had been saved from Auschwitz by the Carmelite nuns. Who would have ever thought to look there? Max was looking in all the wrong places: Vilna, Israel, the displaced persons camp. So we decided to look in the belly of the beast—in the convents surrounding Auschwitz itself. I have a college classmate—Donny, remember him, Daddy?—he’s been helping to build a Jewish center in Auschwitz. I called him—asked him to go to some of the local convents and ask some questions.”

  “And he found Max?”

  “Not right away. In the third convent he looked, they told him about a young girl who had been rescued from Auschwitz by the nuns and hidden in the convent until the liberation. She was pregnant. The Nazis would kill the women as soon as they became pregnant, since they didn’t want Jewish babies. The nuns sneaked her out in a coffin. She had to lie next to a nun who had died of typhus. She decided to stay in the convent. She had nowhere else to go. She was sixteen years old. The nuns helped deliver the baby. In gratitude she served the nuns. Cleaned for them. Cooked. Anything they wanted. When the war was over, she decided to leave the convent and try to make a life outside. She moved to a city not too far away from Auschwitz and stayed in touch with the nuns. After she died, the nuns took Max back, a little orphan. They took care of him until he was old enough to leave. He, too, kept in touch. The nuns knew where he lived in Krakow, and Donny found him last night. Donny pulled some strings, and early this morning Max got on a plane from Warsaw. Jacob and I flew in from Amsterdam. We met an hour ago at Logan. I interviewed him briefly in the cab from the airport and jotted down some notes. That’s the skinny. I’m sure you’ll get the fat from the witness.”

  “You’re great, sweetie. I can’t believe you actually pulled this off. Next time, please give me a little heads-up,” Abe said, giving his daughter a hug.