Taking the Stand

by Alan Dershowitz

  How much more exculpatory evidence may be hidden in some government file—or may have been destroyed or lost—we will probably never know. For example, a fragment of human skin was found under one of Colette MacDonald’s fingernails. Yet, unbelievable as it sounds, the government claims that it lost this singularly important item of evidence.90 Prosecutors in several other cases in which I’ve been involved have mysteriously “lost” evidence that could have proved innocence.91 If that skin fragment were available, it could prove conclusively—through DNA matching—whether or not Jeffrey MacDonald was the killer.

  If the government suppressed these highly relevant lab notes, a new trial should certainly be granted. But several problems remain: First, most Americans who have read the book or seen the TV movie of Fatal Vision already “know” that Jeffrey MacDonald is guilty, because the Jeffrey MacDonald portrayed in those one-sided presentations was guilty. The evidence shown to the audience—like the evidence presented to the jury—did not include the physical evidence that corroborates the Stoeckley confessions. Nor did it include the evidence that the prosecutor pressured Stoeckley to lie about her memory.

  The second problem is that current law makes it nearly impossible to reopen a closed case on a second or third writ of habeas corpus, since the “great writ” has been severely restricted by Congress, and even compelling evidence of innocence does not guarantee a new trial.92 In fact, when I argued an appeal from the denial of a second petition for habeas corpus in the MacDonald case93—my only courtroom involvement to date in this long case—one of the judges warned me not to bring any further petitions.94 I told him I would be obliged to bring a further petition if the evidence warranted it.

  Such new evidence has now been found, and the court of appeals recently ordered the district court to consider all the new “evidence as a whole.”95 This includes testimony by a lawyer appointed to represent Stoeckley at the trial confirming the fact that Stoeckley remembered being in the MacDonald home on the night of the killing, and that she was pressured by prosecutors to “forget” the truth. Moreover, a new book has been written by a highly credible investigator, Errol Morris, which supports MacDonald’s claims of innocence and the unfairness of his trial.96 So the case is far from over. I continue to confer on it with Harvey Silverglate, who was my cocounsel in the earlier habeas corpus appeal.

  Whatever happens, I believe that Jeffrey MacDonald has not yet received a fair trial. I believe he deserves one—and the American people deserve to know the full story, not the abbreviated one presented at the trial or the biased one presented in the book and the TV movie. One of the appellate judges who heard argument on the MacDonald case has publicly stated that “the case provokes a strong uneasiness in me.”97 As well it should, in light of the repeated efforts of prosecutors to suppress the truth and hide exculpatory evidence.

  More important, I believe that courtrooms should never be closed to new credible evidence of innocence and that the “great writ,” which goes back to the Magna Carta, should not become a barrier to truth, as it often does under current law, but should remain an open door to justice.

  HOW SCIENCE HAS CHANGED HOMICIDE CASES OVER THE PAST HALF CENTURY

  There are two discernible trends in regard to the use of science to solve homicide cases—and they point in opposite directions. Science is helping to solve cases that previously remained unsolved (cold cases) or that produced erroneous results. Innocent people who were wrongly convicted of murder have been exonerated by the new science of DNA, and some guilty murderers who had never been suspected have been successfully prosecuted.98 There have been some cases in which the DNA of the killer has been found and analyzed but could not be matched—yet—with a specific person. In at least one case, an indictment has been issued against the unnamed person who matches the “guilty” DNA.99 If the person who matches the sample is ever found, he could presumably be prosecuted under the indictment, even if the statute of limitations has expired. Recently, DNA evidence was used to establish the identity of the notorious “Boston Strangler,” a case on which I had consulted nearly half a century ago.

  Such is the progress of science, and it will play an even larger role in the future. I teach about these developments in the classroom. I write about them. And I try to bring my academic knowledge—whether it involves chemistry, psychiatry, politics, or any other discipline—into the courtroom.

  At the same time that science is offering progress in criminal law, the law itself is regressing. It is becoming increasingly difficult to reopen “closed cases,” even homicide cases that carry long prison sentences or the possibility of execution.

  Over the past several decades, an increasingly conservative Supreme Court and a Congress that doesn’t seem to care about wrongly accused defendants have shut the courtroom door to new evidence, including new scientific evidence, that might change the outcome of a case. Some judges and justices even believe that it is not unconstitutional for an innocent person to be executed or to remain in prison if his conviction was “otherwise” constitutional. The idea that a process resulting in the conviction of an innocent defendant could be “otherwise” constitutional reminds me of the apocryphal question put to Mary Todd Lincoln after Abraham Lincoln’s assassination in Ford Theater: “Other than that, Mrs. Lincoln, how did you like the play?” If a defendant is factually innocent, there is no “other than that.”

  Here is Justice Antonin Scalia on this subject:

  This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.100

  Let me be clear what this means. If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife, whose body was never found, and then came to the Supreme Court with his very much alive wife at his side and sought a new trial based on newly discovered evidence that his wife was alive, Justice Scalia, along with several other justices, would tell him, in effect: “Look, your wife may be alive as a matter of science, but as a matter of constitutional law, she’s dead. And as for you, Mr. Innocent Defendant, you’re dead too, since there is no constitutional right not to be executed merely because you’re innocent.” The same would be true if DNA evidence proved another person guilty of a murder for which an innocent person was about to be executed. According to Scalia’s view of the Constitution, there would be nothing unconstitutional about executing the innocent man—and then trying, convicting, and executing the guilty man too. Such is the regress of law, and it may get worse if more justices with Scalia’s anachronistic views are appointed to the courts.101

  At the moment, the Supreme Court remains closely divided on the issue of innocence in the context of habeas corpus. On May 28, 2013, a 5 in 4 majority—with Scalia in dissent—ruled in a case called McQuiggin v. Perkins that “actual innocence, if proved,” serves as “a gateway” through which a defendant may obtain relief even if he filed his petition beyond the allowable time. The majority cautioned, however, that “tenable actual gateway pleas are rare,” because the defendant has to prove to a judge that “in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Under this daunting standard, the husband who produces his living wife would win, but MacDonald might not, because some reasonable juror somewhere might still find him guilty. Moreover, the court didn’t adequately address the “chicken-egg” problem: How does a confined inmate with no money, no lawyer, and no investigator, “prove” his innocence before receiving a hearing with subpoena power.

  Even with this new ruling, it is possible for actually innocent defendants to be imprisoned or executed because they can’t meet the high threshold set by the Supreme Court to prove their innocence.

  M
y Love-Hate Relationship with the Scalias

  My first encounter with the Scalia family took place when I was president of the student government at Brooklyn College and Professor Eugene Scalia—Justice Antonin Scalia’s father—was a professor of romance languages. It was the tail end of the McCarthy era and Brooklyn College had fired a colleague of Professor Scalia’s named Harry Slochower, on the grounds that he had refused to testify in front of a congressional committee about his alleged Communist affiliations years earlier. I supported Professor Slochower’s right to continue to teach, while Professor Scalia opposed it.

  Years later, Professor Scalia’s only child became a justice of the Supreme Court. Shortly after his appointment, the phone rang in my office. I picked it up and the voice on the other end said, “Hey Alan, it’s Nino. I accept.” I said, “Nino who?” He responded, “Justice Scalia, and I accept your challenge.” I asked, “What challenge?” He said, “Oh, they didn’t tell you?” “Who didn’t tell me?” I asked. “Your first-year criminal law students.”

  Justice Scalia then explained that several students in my class had called him and said that I was critical of his opinions and asked if he would come to class and debate me about his legal philosophy. He was calling to accept the students’ invitation, and I immediately accepted it as well. Several weeks later, he appeared in my class and a feisty debate ensued. I’m told a tape of our encounter exists in the Harvard archives but is not accessible to the public. I wish it were.

  Our next encounter occurred after he granted a stay of the Florida recount, effectively ending the 2000 election, and handing it over to the candidate he voted for—George W. Bush. I wrote a book called Supreme Injustice, in which I singled out Justice Scalia for harsh criticism. Shortly thereafter, he came to Harvard to speak and I was invited to a lunch with him. He opened the floor to questions and I asked the first one. “Many people, including many sitting in this room, believe that if the shoe were on the other foot—that if Bush were seeking the recount—you would have voted for Bush. If that is true, haven’t you violated your oath of office which requires that you will administer justice without respect to persons?” He responded angrily, “I don’t like being accused of violating my oath of office.” I quickly responded, “Then you shouldn’t have violated it.” He turned away angrily. He then answered several other questions and no other hands went up, so I raised my hand again. Dean Elena Kagan, now Justice Scalia’s colleague on the Supreme Court, pretended not to see me, obviously trying to avoid further unpleasantries. But to his credit, Justice Scalia said, “I see Dershowitz’s hand. I’m not afraid of him. What is your question?” I persisted in my line of aggressive questions and he persisted in his aggressive answers.

  Shortly thereafter we met again when we were both visiting Israel and giving lectures. A similar confrontation occurred. Although many observers were unnerved by our aggressive back and forth, neither Justice Scalia nor I took it personally. This became evident when he wrote me a “Dear Alan” letter dated July 19, 2005.

  He began by discussing his father, describing him correctly as “a man of unbending principle.” He then went on to discuss my criticism of his role in Bush v. Gore:

  If my joining the equal-protection opinion was a mistake, I will be delighted if it is the worst one I make in this job. After all, it determined neither my vote (I would have come out the same way on the other ground, which I preferred) nor the judgment of the Court (there were six votes for equal protection anyway). I have frankly not revisited the issue, or read the extensive commentary (mostly critical, I gather) concerning it. At the time, however, I thought that ground correct. Even if you think that was wrong, considering the severe time constraints, the pressure to come out with a near-unanimous opinion, and the fact that it did not determine my vote in the case, you should cut me some slack. As for the stay: I think I can persuade you it was proper. We will talk about it sometime—as you say, before senility.

  He ended his letter with a backhanded compliment:

  You are not as nasty a guy as my right-wing friends believe. Warm regards.

  Sincerely,

  Nino

  This is not to suggest that innocent people are being routinely executed in the United States. There are other checks and balances, such as gubernatorial commutation.102 (Though in some states, they are rarely, if ever, granted.) Moreover, the courts, even the Supreme Court, sometimes find other ways to free the obviously innocent.

  The real problem is how to prove one’s innocence when the courts deny possibly innocent defendants the tools necessary to prove the certainty of their innocence. The Jeffrey MacDonald case is a prime example of this problem.103 The courts repeatedly shut the door on his serious claims that he could establish his innocence if he were to be given an opportunity to subpoena evidence and witnesses. In his case several crucial witnesses have died. These include Helena Stoeckley and her boyfriend, who may have been the actual killers, and Jim Britt, the deputy marshal who would have testified that the prosecutor improperly pressured Stoeckley to “forget” what she had seen—that is, to lie about her memory.

  In the MacDonald case, justice delayed by the courts may actually result in justice being denied to an innocent man.

  Nor is MacDonald alone in having the courthouse door shut on new scientific evidence that could acquit the innocent and convict the guilty. It is possible that several innocent people have been executed because the courts refused to consider the scientific evidence that could have proved that others committed the murders.104

  One such case came to my attention too late for me to do anything to prevent a possible miscarriage of justice. A letter arrived at my office on a Monday. I opened it and read a poignant request from a condemned man to review his case. I receive many such requests, but this one was different. It began by informing me that by the time I read this letter, the writer might already have been executed. I checked, and sure enough, he had been executed a few days earlier. Nevertheless, he asked me to help clear his name posthumously, so that his family would know he was innocent. He had asked to have the blood on a towel tested for DNA, but his request had been denied. He believed that the DNA test would show that the killer was someone else. I immediately sought to have the blood tested at my own expense, but the authorities told me that the evidence had been destroyed as soon as the defendant was executed.

  In other words it is entirely possible that an innocent man was executed while the guilty man remains at liberty, because the courtroom doors were shut to gathering and testing new scientific evidence that could have proved both innocence and guilt.

  The prime lesson of the important scientific developments over the past half century is that the courthouse must always remain open to new evidence, even if such openness denies legal finality in criminal cases in which there is no scientific finality.

  The current Supreme Court has expressly rejected this important lesson. The mind-set of the majority justices can be gleaned from a 2009 case105 in which I was not involved. Justice Stevens, in dissent, aptly described the relatively simple issue before the court:

  The State of Alaska possesses physical evidence that, if tested, will conclusively establish whether respondent William Osborne committed rape and attempted murder. If he did, justice has been served by his conviction and sentence. If not, Osborne has needlessly spent decades behind bars while the true culprit has not been brought to justice. The DNA test Osborne seeks is a simple one, its cost modest, and its results uniquely precise. Yet for reasons the State has been unable or unwilling to articulate, it refuses to allow Osborne to test the evidence at his own expense and to thereby ascertain the truth once and for all.106

  Osborne claimed a substantive due process right, among others, to test the evidence, pointing out that not only was his right to liberty at stake, but also that “in more than one third of all exonerations DNA testing identified the actual offender,” who may still be at large.

  The majority rejected Osborne’s claim on the
ground that “there is no long history of [any] right” to “apply new DNA testing technology that might prove his innocence.” They quoted an earlier case that had ruled that the “mere novelty of such a claim is reason enough to doubt that ‘substantive due process’ sustains it.”107 In other words, the newness of the science itself is “reason enough” for the courtroom door to be slammed shut on it, even if that means an innocent person will remain behind bars.

  This absurd legal rejection of “new” science was authoritatively answered by Oliver Wendell Holmes in 1897:

  It is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists through blind imitation of the past.108

  So it is with the anachronistic rules of finality that shut the courtroom doors to new scientific developments that can both free the wrongly convicted and apprehend the guilty who remain at large.

  16

  DEATH, POLITICS, RELIGION, AND INTERNATIONAL INTRIGUE

  Sharansky, Kennedy, and the Former President of the Ukraine

  While most of my death cases have involved science, others have concerned politics, religion, diplomacy, and international intrigue. Some prosecutions involving death have political implications. Defendants are targeted and falsely charged with capital crimes because of their political activities. Some prosecutions grow out of politically controversial activities, such as unpopular wars. Some politically popular defendants may benefit from a double standard, while other, less popular defendants may suffer from differential treatment. Some defendants try to raise political defenses to homicide charges, while others claim that the courts before which they are to be charged are themselves “political,” rather than “judicial.” I have been asked to become involved in many such cases, some of which I have accepted and others I have rejected. Here are their stories.