Taking the Stand

by Alan Dershowitz

  A: The only thing I can say to that, Counsel, is that I would use that that type of language at times.…

  The officer’s self-confident denials gradually softened into evasiveness and forgetfulness: “I don’t remember, but it sounds familiar”; “I possibly would say something like that”; “I would have said something like that in order to keep the rapport with the informer.”

  Now realizing that we definitely had him on tape, the officer began to vacillate and admit he had made some promises.

  It was time to use the ploy we had devised to get him to tell the truth about the crucial promise not to use Siegel as a witness in the Hurok case. Pretending that we had that promise on tape, I read a “transcript” prepared by my client from memory. I began slowly asking the officer if he recalled having the following conversation with Sheldon Siegel:

  PAROLA: Hey, where you been?

  SIEGEL: What do you mean?

  PAROLA: I told you two o’clock, didn’t I?

  SIEGEL: No. You told me between two and two-fifteen.

  PAROLA: Hey, don’t get cute. Hey, look, you got to do us a favor. If you can help us on the Hurok thing I would appreciate it. I promise you, Shelley, just give us the names and leave the rest to us. If we can’t prove it without ya, then we can’t prove it.

  I asked him, “Do you remember having that conversation in substance?” Parola mumbled, “In substance, I could have had that conversation.” I continued reading from “the transcript.”

  PAROLA: Once we know who did it, you don’t think we can turn these guys? Are ya kidding? We’ll get it out of them. I’m tellin’ ya, we can do it.

  SIEGEL: What if someone finds out?

  PAROLA: No one’s going to find out. You won’t even have to go to the grand jury on this one. We can do this whole shmeer without even using you. Look, just tell me who did the Hurok thing. Just give their fucking names.

  At this point the judge joined the questioning:

  THE COURT: In March of 1972 did you have such a conversation with Mr. Siegel?

  MR. PAROLA: Yes, I could have had that conversation relative to Hurok, Your Honor.

  MR. DERSHOWITZ: [reading] “We will never use you as a witness, we will build the case around you. We will use your leads.”

  THE COURT: Did you say that to him in that conversation—and don’t tell me you could or couldn’t have—I want to know did you or didn’t you?

  MR. PAROLA: I believe I have testified on the record, Your Honor, that I did, in fact, say to Mr. Siegel that we could build a case around him.

  The judge was now helping to conduct my cross-examination. I continued:

  [reading] “We ain’t going to use you. We just ain’t going to, won’t have to, we can make the case without you.”

  THE COURT: [voice rising] Did you say that?

  MR. PAROLA: In those exact words, I don’t recall, Your Honor.

  MR. DERSHOWITZ: Did you give the substance of that statement to Mr. Siegel?

  MR. PAROLA: In substance I would say yes.

  THE COURT: Then it is a fact, isn’t it, that at some point in time you said to Siegel: “We will never use you.” Is that correct?

  MR. PAROLA: My conversations, Your Honor, with Siegel: “We would never use you if we can build a case around you.”

  THE COURT: I didn’t put that “if” part in. I am asking you whether you ever told it to him without the “if.” Read that language, Professor, please. The last few lines of that.

  MR. DERSHOWITZ: [reading] “We ain’t going to use you. We just ain’t. We won’t have to. We can make the case without you.”

  THE COURT: Did you say that to him?

  MR. PAROLA: That sounds familiar to me, Your Honor. I don’t recall exactly if those words are the words.

  THE COURT: [shouting in anger] Just don’t interrupt me. I take it when you say “that sounds familiar,” that that means that you recollect that in substance, if not in those words?

  MR. PAROLA: In substance, si …

  THE COURT: Yes.

  Parola thus admitted that he had promised Siegel he would never be called as a witness in the Hurok case.

  As a result of this controversial tactic and our other legal arguments, the court of appeals ruled that Sheldon could not be used as a witness and all the defendants went free.

  I still use these recordings in my class to demonstrate the pressures employed by police to turn defendants into informants, and I use my cross-examination tactic to stimulate debate about the limits of what is appropriate cross-examination of a hostile police witness. I also use this case to try to make the students experience what it feels like to “win” for a client you know is guilty of complicity in the murder of an innocent young woman—who was their age and in the prime of her life. I have them read the words of the trial judge who was ordered to dismiss the case against the JDL killers:

  Do you know who isn’t in court today? Iris Kones. Someone has committed a dastardly, vicious, unforgiveable, unforgettable crime; someone is frustrating the administration of justice in a case that, in my mind, involves murder. People who deliberately do so will learn the power of the law even if there are those who have literally gotten away with murder.

  While enunciating these final words, Judge Bauman turned his eyes from the defendants and focused them on me, almost as if to say, “And you, Dershowitz, are the one responsible for frustrating justice and allowing guilty murderers to go free.”

  His look pained me, because he was right. In a sense I was responsible. Had I not devised novel legal arguments and an edgy cross-examination tactic—had my team and I not devoted days and nights to Siegel’s defense—it is possible that the court of appeals might have ruled against him and the other JDL defendants.

  I’ve thought of Iris Kones often, and of other victims of my clients who have gone free because of my legal arguments and my investigative work. I think especially of Iris Kones because she is the only homicide victim who was killed by someone I defended who I know for sure was guilty and went free. I suspect there were other such victims as well, but I can’t be sure of any but Iris Kones, because my client in that case told me, and the world, that he was guilty.

  I also think of Iris Kones because her family—who are active in both Jewish causes and Harvard University—constantly remind me, and all of our mutual friends and associates, of my role in freeing the murderers of their relative.

  Although I don’t believe in divine justice, it is true that Sheldon Siegel died at a very young age after an unsuccessful heart transplant. His premature death didn’t make me feel any less responsible for the morally unjust, but legally proper, result I helped produce in his case.

  THE KILLING OF JOHN LENNON

  Another death for which I felt some responsibility was that of John Lennon, who was shot in front of his Manhattan home by Mark Chapman in 1980. Lennon was in the United States on that fateful day because I had helped him avoid deportation back to England in 1975. Had our legal team not been successful in stopping the Nixon administration’s political efforts to deport Lennon on trumped-up allegations relating to his use of marijuana in England, Lennon would have been deported and banned from the United States. It is highly unlikely that Chapman would have stalked and shot him on the streets of London or Liverpool, as he did near his Central Park West apartment. This case thus combined elements of politics, psychiatry, and celebrity.

  I had been retained by an excellent deportation lawyer named Leon Wildes to write a legal memorandum on the impropriety of the deportation and on several constitutional issues surrounding Lennon’s earlier arrest on the marijuana charges that formed the basis for the deportation. (My fee was to be a record album signed by John Lennon: Lennon signed it; the lawyer lost it; and my children nearly killed me!) We won the case,36 and Lennon continued to live in the Dakota for the several years before he was killed by Chapman.

  His killer had no money to hire a lawyer, and so the court appointed a former student of mine, Jonathan Marks,
to represent him. Marks is a brilliant and innovative lawyer who wanted to raise a defense based on Chapman’s mental state. He asked me to consult with him, but I didn’t feel comfortable helping a defendant who had killed my former client. So I declined. Marks put on a compelling case, but the jury rejected his insanity defense and convicted Chapman.

  Several years later, I ran into Yoko Ono at an art auction. I told her how sad I was that we had won the deportation case, because if we had lost, John would still be alive. She became angry: “Don’t ever think that,” she admonished me. “Those years we had together in New York were the happiest in his life and mine. He gave me Sean Ono. You did a good thing.”

  I’m not so sure.

  POLITICAL MURDER CASES I DIDN’T TAKE

  I have refused to take some cases because I did not believe in the “political” defense the client wanted me to raise.

  For every client whose case I agree to take, I must, regretfully, turn down many. Every week, I receive dozens of calls, e-mails, and letters asking me to review cases. Many of them involve homicides, because some of my most highly publicized cases have involved clients accused of murder. Being a full-time professor makes my time for litigation limited. So I must choose only a handful each year among the many worthy cases. I have several criteria. I rarely turn down cases in which defendants face the prospect of the death penalty, and when I do, I try to get another lawyer, often a former student, to take the case. (The same is true for cases involving freedom of speech.)

  I have explained why I defend the innocent and guilty alike, but there are certain categories of clients I will almost never accept. These include professional criminals who are in the business of doing illegal things and will almost certainly go back to that business if I get them off: drug dealers, Mafioso, terrorists, gang leaders. These professional criminals are entitled to counsel, but I do not want to become a consigliere to a crime family (remember Tom Hagen in The Godfather)37 or an advisor to those who are in the ongoing business of committing crimes.

  I also do not generally represent fugitives from justice while they are still “on the lam.” A lawyer’s job does not include helping a client illegally evade or escape from justice.

  I try to take interesting cases that will have an impact on law, cases in which an injustice has been done, and cases involving my personal areas of expertise (science, constitutional law, psychology). I take about half of my cases on a pro bono basis and the other half on a fee basis. I use the fees to support the expenses of my pro bono cases.

  Perhaps the most difficult case for me to turn down involved the Israeli student Yigal Amir, who was accused of assassinating the late Yitzhak Rabin, the prime minister of Israel. Several days after the crime that rocked the world, the family of the man accused of committing it came to my home and asked me to become his lawyer. I met with them, and they told me that Amir had in fact pulled the trigger, but that he was legally innocent, because the killing was justified under the Jewish law of rodef—a concept akin to preventive or anticipatory self-defense, or defense of others.38 This concept, which derives from a biblical passage,39 as interpreted by Jewish sages including Maimonides,40 authorizes the killing of a person who is about to do great harm to the community. The man who killed Rabin believed that Rabin was about to make a peace with the Palestinians that involved giving back “sacred” land that had been captured by Israel during the Six Day War. He also believed that this would endanger the lives of Israelis, and so he set out to stop it by killing the rodef who was, in his view, endangering his land and people.41

  The trial of Rabin’s killer promised to be among the most interesting of my career and among the most important in the history of the Jewish state. Although the crime did not carry the death penalty (Israel has abolished the death penalty except for the Nazi genocide against the Jewish people, under which Adolf Eichmann was hanged),42 the case fit many of the criteria I generally consider in taking a case. But I decided not to take it.

  The reason was that it involved the kind of political defense that I abhor. If every citizen had the right to decide who was a rodef deserving of death, there would be anarchy. The “rule of personal politics” would replace the rule of law. The defense of rodef was not, in my view, a legitimate legal defense, and I, as a lawyer, was not obligated to present it.

  I had a more personal reason as well for turning down this case. I deeply admired Rabin and I supported his efforts to make peace. We knew each other, though not well, and he had consulted with me regarding several issues, including the one that may have led to his death.

  Eight days before Rabin was killed, Israel’s ambassador to the United States had asked me to meet with the prime minister when he was scheduled to speak in Boston later that month. I asked the ambassador what the subject of the meeting would be, and he told me that the prime minister was deeply concerned about the increasingly virulent level of rhetoric in Israel and the fact that certain fringe religious and political figures were advocating violence against government officials. He wanted to discuss whether there were ways of constraining the level of vitriol without infringing on the right of free speech

  I agreed to meet with Rabin and wrote the appointment in my calendar. I also did some research on Israeli law in preparation for the meeting. But it was not to be. Rabin was murdered a week before his scheduled trip to Boston. I could never erase the scheduled meeting from my appointment book or from my mind.

  I declined the offer to represent Amir, and watched with interest as his lawyers tried to present the rodef defense to an appropriately unsympathetic judge. Amir was convicted and sentenced to life in prison.43 He was married while in prison and allowed conjugal visits, during which he fathered a child.44

  Other clients accused of “political” murders whose cases I rejected included Radovan Karadžić, the head of the Bosnian Serbs during the ethnic wars in the former Yugoslavia. Karadžić first called me to ask me to represent him while he was still a fugitive and while the killings were still ongoing. I told him of my policy of not representing fugitives or people involved in ongoing crimes. He asked if he could call me again if the circumstances changed. I did not say no.

  Shortly after receiving this call, I had occasion to be at a dinner with then president Clinton and First Lady Hillary Clinton. My decision to turn down Karadžić had been reported in the press (he or someone close to him disclosed it) and it became the subject of discussion.45 Mrs. Clinton was adamantly against my representation of this “butcher,” but President Clinton said that if I could persuade him to turn himself in to the international tribunal in The Hague as a condition of my representing him, it would be a worthwhile trade-off. Karadžić did not turn himself in, and when he was finally caught many years later, he asked me to meet with him in his prison cell in The Hague. I met with him just days after his capture, and we discussed his case, as well as the cases of several of his former colleagues (one of which I was involved in).46 In the end, I did not represent him. He is still on trial in The Hague.

  During the “Arab Spring” of 2011, I received calls from individuals representing both deposed president Hosni Mubarak of Egypt and the then fugitive leader of Libya, Muammar Qaddafi, both of whom were being accused of killing innocent civilians.

  A Norwegian human rights activist who was close to Mubarak asked me if I would be willing to go to Cairo as part of the Mubarak legal team. I raised the question of whether it would be wise for Mubarak to be represented by a Zionist Jew. He said that I would be part of a team of three lawyers, the other two to be selected by the Arab League. I doubted that the Arab League would agree to have me participate in such a team, but he assured me that he would try to obtain their consent. That was the last I heard.

  I was less tempted by the offer made by Qaddafi’s Libyan lawyer. The Qaddafi offer was firm, accompanied by a signed formal retainer letter and contract. I have the contract in front of me as I write these words. It begins “In the Name of G-d, the most gracious, the most merciful
. In G-d we trust.” In the end, I couldn’t agree to what they wanted me to do, and the issue became moot with the fall of the Qaddafi government and the assassination of Qaddafi. I was later asked whether I would consider representing his son in the International Criminal Court, but that issue too became moot when the rebels decided to try him in Libya.

  Another offer came from a deposed African head of state accused of mass murder, who offered to pay me with gold bricks he had stolen from his country. Needless to say, I declined his offer, since the gold was not his to give.

  One American murder case I turned down grew out of a request from the author Norman Mailer that I represent Jack Henry Abbott. Mailer told me that he had urged the authorities to release Abbott, who was serving time for murder, because he had become a great writer while in prison. Abbott had written a memoir, called In the Belly of the Beast,47 that had become a bestseller and had elicited excellent reviews. Mailer told me that he had succeeded in his efforts to have Abbott released, but that shortly after being set free, Abbott stabbed a waiter to death. The case then became a political hot potato, with everyone involved in releasing Abbott trying to shift the blame for his release to others.

  Whoever was to blame, Abbott was now facing a murder charge, and if convicted he would never again experience freedom, regardless of his writing skills.48

  I agreed to visit Abbott in jail, where he was being held pending trial. I was allowed to meet with him in a lawyer’s conference room, with guards standing outside. We began to talk, and I became increasingly skeptical of the media story that Mailer had secured his release. I had his prison record in front of me, and as I perused it, the thought occurred to me that perhaps Abbott had earned his freedom by informing on other prisoners. I made the mistake of asking Abbott whether he was a “snitch.” Upon hearing that word, he leaped over the table and grabbed me around the neck. The guards quickly rescued me from his clutches. The last words he heard me say as I left the room were “No way I’m becoming your lawyer.”