Taking the Stand

by Alan Dershowitz

  After several more months of imprisonment, the doctor was finally released and allowed to join his family, who now live in Israel. I was invited to his birthday party and celebration of freedom in Israel as a guest of honor. I have remained close to him and his family ever since.

  MY MOST UNGRATEFUL HOMICIDE CLIENT: ANGELA DAVIS

  Another “political” defendant with whom I had a hard time identifying was Angela Davis, who was charged as an accessory to murder.

  Clients whose cases I have helped to win generally respond in one of two ways: some express great, sometimes excessive, gratitude. Claus von Bülow, for example, frequently writes me from London thanking me for saving his life. These clients offer to do anything in exchange for you having saved their lives. Others behave as if the case never happened and you don’t exist. Some, like O. J. Simpson, refuse to pay the fees they still owe. I have seen former clients purposely cross the street to avoid even “seeing” me. They don’t want to be reminded of the dark period in their lives during which they required a criminal lawyer. In only one case, though, did a former client show absolute ungratefulness for my role in helping her avoid a murder conviction.

  During the year that I was a visiting scholar at the Center for Advanced Study in Behavioral Science at Stanford, I was asked to consult on several aspects of the Angela Davis accessory to murder case. Davis, who was a leader of the American Communist Party, was accused in connection with a shoot-out at the Marin County Courthouse as part of an attempted escape of radical prisoners. Davis was accused of purchasing and providing the shotgun that was used. She was also suspected of having engineered the attempt to take hostages in order to barter them for the release of a prisoner she loved. Under legal principles similar to those at play in the Tison brothers case, Davis, if convicted, could expect to serve a very long prison term.

  I worked on jury selection as well as on some constitutional issues. Davis was claiming that she could not get a fair trial in any American court because she was black, female, and a Communist. Part of the reason I took the case was to help assure that she did get a fair trial. After several grueling months, she was acquitted and set free.12 I don’t know whether she now believes she received a fair trial. I do know that she was subsequently hired to become a professor at the University of California in Santa Cruz.

  Shortly thereafter, I learned that she was going to Moscow to receive the Lenin Peace Prize. She said that she was pleased to receive the prize and that she would spend the rest of her life helping to free political prisoners around the world. I called her office and gave them a list of prisoners of conscience in the Soviet Union—mostly Jews who had been imprisoned because they wanted to emigrate to Israel or to learn about their heritage. I asked if she would be willing to speak up on behalf of these political prisoners. Several days later, I received a call back from Ms. Davis’s secretary informing me that Davis had looked into the people on my list and none of them were political prisoners. “They are all Zionist fascist opponents of socialism.” Davis refused to speak up on behalf of the Soviet dissidents.13

  Recently, I ran into an older Angela Davis on the porch of the Chilmark Store on Martha’s Vineyard. She was wearing a bicycle outfit and was cycling around the island with some mutual friends, including her trial lawyer in the murder case, who had become a judge. It was a strange scene in this bastion of bourgeois affluence to see these former radicals enjoying the comforts of capitalism. I reminded Davis of my participation in her case, which she acknowledged. I also reminded her of her refusal to speak up on behalf of Soviet dissidents. In her mellow response, she said, “Well so many other people were speaking up for them that I didn’t think it was necessary for me to add my voice.” It’s interesting how time changes people’s memories. I did not press her as to whether she would today speak up on behalf of Cuban, Chinese, or Venezuelan dissidents, or other heroic people who stand up against what remains of Communist oppression.

  Angela Davis is the best proof that in America, as distinguished from the countries she so admires, it is possible for a dissident to receive a fair trial. The key, of course, is for the trial to have the kind of high visibility and media attention hers received. There are still far too many obscure defendants, of all races, who do not receive fair trials or fair sentences. The struggle to achieve universal fairness and equal treatment is an ongoing one.

  HARE KRISHNA MURDER

  The most bizarre murder case I ever litigated involved both politics and religion. My client was a politically unpopular Hare Krishna leader in West Virginia, who was charged with a wide assortment of crimes, ranging from murder—to copyright infringement! My client’s name was Keith Gordon Ham, but he had called himself Kirtanananda Swami when he founded a Krishna community in West Virginia, which he called New Vrindaban. He became the absolute ruler of this cultish community, whose members testified that he exercised total control over all aspects of community life. Vrindaban became a magnet for people who wanted to lose their identity beneath the saffron robes and changed names, including several with criminal records and violent backgrounds. The community expanded to three thousand acres, with five hundred “devotees” and profits from solicitations that reached $10 to $12 million. Much of this money was obtained by selling counterfeit copyrighted images of sports teams. Hence the copyright infringement charge.

  The events that precipitated the murder prosecution were described by the court as follows:

  The … incident involved the murder of devotee and community member Charles St. Denis on June 10, 1983. When community member Daniel Reid learned that St. Denis had raped Reid’s wife, Reid decided to kill St. Denis. Before attempting to murder St. Denis, Reid consulted Swami. Swami instructed Reid that the killing was acceptable under Krishna scriptures, but that such action violated secular laws and that Reid might be caught and punished. Swami then directed Reid to talk to Thomas A. Drescher, a fellow devotee. When Reid approached Drescher and told him what Swami had said, Drescher testified he felt duty bound to help Reid kill St. Denis. The two then enticed St. Denis to Reid’s house one night, shot and stabbed him several times, and then buried him in a pre-dug grave before he was dead.

  [Another] incident likewise involved the murder of a devotee. In 1985, Steven Bryant, a former New Vrindaban devotee, began publishing statements accusing Swami of engaging in homosexual activity and permitting sexual molestation of children in the community. Around April of 1986, members of the Krishna community in Los Angeles notified Drescher that Bryant was in Los Angeles. Drescher received $2,500 from the New Vrindaban community, authorized by Swami, and flew to Los Angeles. He located Bryant and shot him twice in the head.14

  Swami and several of his lieutenants were convicted and sentenced to long terms of imprisonment. My brother and I were asked to appeal Swami’s conviction. We read the transcript of the trial and found it to be filled with prejudicial evidence that was irrelevant to whether Swami was responsible for the crimes of his followers. I took this case not because I approved of anything about Swami, but because I believe that if the most reviled defendants are not afforded a fair trial, there is grave risk to all defendants. Greta Van Susteren, then a lawyer, now a TV commentator, was retained by one of the lieutenants.

  I argued that the prosecutors had deliberately “thrown a skunk into the jury box” when they introduced irrelevant evidence that Swami had engaged in a homosexual relationship with a follower. To a West Virginia jury back then, this could be massively prejudicial.

  In addition, the prosecution introduced evidence that teachers at the community school had molested children and that Swami was aware of this but did nothing. Finally, they introduced

  a videotape segment from [a] television program [that] showed a child of the New Vrindaban community stating that he prayed “to” Swami, a statement generally offensive to the religious sensitivities of typical jurors. More inflammatory was a statement by Swami comparing women to dogs and condoning lightly slapping one’s wife for disciplinary rea
sons.15

  In addition, the case raised the interesting question of whether a religious leader (even of a “cult”) could be held criminally responsible for the actions of followers who had sought and then accepted his advice and guidance.16

  I argued the appeal before a panel of the U.S. Court of Appeals for the Fourth Circuit consisting of three elderly conservative judges in Charleston, South Carolina. I could not imagine a group that would be less sympathetic to a Hare Krishna guru accused of the horrendous crimes of which my client stood convicted. I worried that they too might be prejudiced by the legally irrelevant evidence of his homosexuality, sexism, and bizarre religious views. But my wife’s older cousin, the late Morris Rosen, an experienced lawyer from Charleston, cautioned me not to give up. “These old-line southerners care about justice, and they don’t have ambitions beyond their current job. They’ll give your client a fair shake as long as you don’t overstate your case. Be straight with them and they’ll be straight with you.” He also suggested that their own somewhat narrow backgrounds might sensitize them to the prejudicial impact the government’s evidence might have had on the jury. He cautioned me to be subtle when making this point.

  My cousin, who was himself “a good ol’ boy,” was absolutely on target. He had taught me an important lesson. What Tip O’Neill had famously said about politics—“all politics is local”—was equally true of law. It was essential to understand the mores and traditions of the local bench and bar. I argued in a low-key manner, focusing on precedents from the court, and especially from the three judges. In their decision, they followed the law, concluding as follows:

  We accept without need of extensive argument that implications of child molestation, homosexuality, and abuse of women unfairly prejudice a defendant. Indeed, no evidence could be more inflammatory or more prejudicial than allegations of child molestation. When evidence of a defendant’s involvement in several of these activities is presented to the jury, the risk of unfair prejudice is compounded. In such a case, we fear that jurors will convict a defendant based on the jurors’ disdain or their belief that the defendant’s prior bad acts make guilt more likely. Furthermore, we are especially sensitive to prejudice in a trial where defendants are members of an unpopular religion.17

  The court reversed the convictions. The rule of law prevailed over the political and religious prejudices of men and women.

  Following the reversal of their convictions, the defendants entered into a plea bargain with the prosecutors and were sentenced to serve prison terms considerably shorter than those to which they had been sentenced previously.

  THE CASE I STILL CAN’T TALK ABOUT: CHAPPAQUIDDICK

  One homicide case tinged with politics in which some people believe the defendant was advantaged by his political popularity involved Senator Edward Kennedy. I am still not free to disclose everything I know about the case, even though all the principals are dead and the case is more than forty years old, because the lawyer-client privilege extends beyond the life of the client. I was one of the lawyers involved in the Chappaquiddick case—the investigation of Senator Edward Kennedy for driving his car off a bridge on the island of Chappaquiddick, resulting in the drowning death of Mary Jo Kopechne.

  It was an eventful summer in 1969. My family and I were on Fire Island anticipating watching a man walk on the moon. I had no idea how much more exciting the summer would become.

  I received a call from one of Senator Kennedy’s aides, telling me that the senator had been involved in a fatal automobile accident and asking me to make my way to Martha’s Vineyard—a place I had never visited. I was asked to become part of the legal team being assembled in anticipation of the upcoming criminal investigation. My primary job was to prepare a brief concerning the rights of the young women (they were referred to as the “boiler room girls” because they had worked on Kennedy campaigns from an office that had once served as a boiler room) who had been vacationing on Chappaquiddick along with Senator Kennedy and several of his friends. The women were being subpoenaed to testify at an “inquest” regarding the tragedy.

  There was very little law on the rights of witnesses at this sort of hybrid hearing, which is neither a trial nor a grand jury proceeding. One important issue was whether or when their testimony, which might require them to divulge personal matters, would be made available to the media, which was seeking every possible tidbit of information—or gossip—about the events surrounding the tragedy. I worked with my colleague Professor Charles Fried, and we produced a brief that succeeded in keeping the testimony of the women confidential during the course of the criminal investigation.

  I also consulted with, and did legal research for, the lawyers responsible for trying to prevent Senator Kennedy from being charged with vehicular homicide or some other serious crime. We succeeded, and the senator ultimately pleaded guilty to a relatively minor offense.

  Although I am not free to disclose what I know, I am comfortable saying that if the full truth were ever to be disclosed, it would not tarnish the senator’s well-deserved reputation as one of the great political figures of the last half century. Chappaquiddick was my first personal encounter with Senator Kennedy. We became much closer over the years. I remained close to the senator until his death. During his unsuccessful run for the Democratic presidential nomination against Jimmy Carter in 1980, I acted as a surrogate speaker for him and accompanied him to various events in California and other states. We worked especially closely on helping Soviet refuseniks emigrate to the United States. I vividly recall driving to Logan Airport with Senator Kennedy to greet a family that included a sick child whom he had helped bring to Boston. I consulted with him on numerous projects involving criminal law, constitutional law, judicial appointments, and human rights.

  Ken Feinberg, who served as his chief of staff and in many other capacities, recently told me that before anything involving these issues left his office, Senator Kennedy would tell his staff members, “Check it with Alan.” The senator told Newsweek that my “advice was invaluable” to him.18 It was a high honor and privilege to assist so great a senator on so many occasions.

  The last time I saw him was just months before his death, when he invited me to sit next to him for several innings during the opening game of the Red Sox season on April 7, 2009. He asked me about the Soviet refuseniks he had helped to bring to this country. When I told him how well so many of them were doing—they were professors, engineers, symphony players—he was pleased. He inquired specifically about the sick baby we had met at the airport, and I told him she was about to graduate from Brandeis University. He cared deeply about human rights, not only in the abstract, but as they related to real people. Though the events at Chappaquiddick may have prevented Ted Kennedy from becoming president, they did not stop him from becoming one of the greatest senators in American history.

  DEFENDING SOLDIERS

  Politically controversial wars need scapegoats, and soldiers often are placed into that unfortunate position. For that and other reasons, I have a policy of representing, without fee, soldiers who risk their lives for our liberties and are charged with killings growing out of their military service. I have helped to defend several soldiers, most prominently Colonel Michael Steele, the real-life hero of the tragic events in Mogadishu that gave rise to the film Black Hawk Down.19 I have also helped to defend ordinary enlisted men accused of unlawful killings of noncombatants.

  Several of Colonel Steele’s enlisted men had killed “five unarmed Iraqis” following deadly attacks by Iraqi militants against U.S. soldiers.20 Colonel Steele was being investigated for the instructions regarding the rules of engagement that he had given to his men prior to the killings. Some higher-ups believed that his “fiery rhetoric” had incited the killings, or at the very least had created an atmosphere in which such killings would be seen as acceptable. Colonel Steele adamantly denied any such responsibility and asked me to help his military lawyers prepare a defense to any such charge.

  The rules
of engagement with terrorist groups are confusing at best. The directive Colonel Steele had received granted him the authority to target “groups, cells and facilities belonging to terrorist groups.” How to distinguish such groups from noncombatants in the fog of asymmetric warfare, in which terrorists blend into the civilian population, is one of the most daunting challenges of modern combat. After conducting extensive research on the applicable law and on what Colonel Steele had actually told his men, I was convinced that he had complied with both the letter and spirit of the laws of war, and that the soldiers who had killed civilians were not following his lawful directives. We prepared a brief arguing against any charges being brought against the colonel.

  We showed that Colonel Steele’s actions were motivated by an understandable need to protect his soldiers, and that he succeeded: Steele’s Rakkasan unit suffered half as many losses as the units that had preceded and succeeded them.

  In the end Colonel Steele was not charged with any crime. An investigation found that he “continually told soldiers they must be prepared to use deadly force without hesitation, within the boundaries of the law.” And though it was “clearly possible that some soldiers, especially young, inexperienced ones, could misinterpret the message,” Steele’s leadership had not “encouraged illegal, wanton, or superfluous killing.”21

  Despite this finding, Colonel Steele was reprimanded by his superior, with whom he had been in continuous conflict.

  A detailed article in the New Yorker made the case that the operation during which the killing took place

  displayed more discipline than recklessness. During the three-day mission, hundreds of Iraqis were detained without incident, and when soldiers were presented with morally confusing situations, or the opportunity to do something that seemed unlawful, many of them either refused to kill or prevented others from acting wrongly. Quantifying the level of discipline in a unit as large as a brigade is not easy, but, according to Army data, the number of Rakkasan escalation-of-force incidents in 2006 was below the median for brigades in Iraq.22