Finally, I was asked to assist in the defense of George Zimmerman, the “neighborhood watchman” who was accused of murdering a black teenager named Trayvon Martin. The governor’s political decision to appoint a special prosecutor well known for her sleazy tactics and excessive charging decisions turned this case from a fact-driven homicide investigation into a politicized, racially divisive prosecution. I decided not to become directly involved in Zimmerman’s defense so that I could continue to provide expert commentary on the highly charged case. Following the jury’s verdict of not guilty—which I had predicted from the time the charges were brought—I was interviewed by many media outlets around the world. I defended the verdict on the ground that the prosecution failed to meet its burden of proving beyond a reasonable doubt that Zimmerman did not kill in self-defense. I received many emails, some agreeing, and some disagreeing, with my assessment. The following email from a young man serving as a law clerk to a justice of the Tennessee Supreme Court was the most poignant:49
Dear Professor Dershowitz,
My name is Daniel Horwitz, and I’m a recent graduate of Vanderbilt Law School. We’ve never met, but you’ve been a personal hero of mine for as long as I can remember, and you are largely responsible for both my decision to go to law school at all and my desire to become a Public Defender after graduating. For your unapologetic commitment to due process, and for being—best I can tell—the only truly principled and uncompromising voice for the rights of the accused left in the world, I want to thank you.
In the wake of the George Zimmerman trial, I found myself more lost than I’ve been in a while. Seeing much of the political left—an ideology with which I have always associated—wholly abandon bedrock constitutional principles like the presumption of innocence and the accused’s right to a fair trial was more disheartening than I can realistically explain. Just when I’d almost given up hope, however, hearing you condemn the state’s abuse of its charging discretion, emphasize the need for a not guilty verdict given the state’s clear inability to satisfy its burden of proof, and remind everyone what due process of law actually means, was all that it took to restore my faith.
I read “Letters to a Young Lawyer” both the day before I began law school and the day after I graduated, and I know that you counsel people like me to “expect to be disappointed” by our heroes. Much to my regret, that advice has already proven sound more times than I can count. That said, though, as someone who’s deeply committed to the ethic of criminal defense, you have never once let me down, and for that I will always be grateful to you. For your unwavering commitment to principle, thank you so, so much.
All the best,
Daniel Horwitz
17
DEATH CASES FROM THE CLASSROOM TO THE COURTROOM AND FROM THE COURTROOM TO THE CLASSROOM
Shooting a Corpse and Crashing a Helicopter
I was one of the first full-time law professors at a major law school to represent criminal defendants on an ongoing basis. I have always believed that practicing law made me a more relevant teacher, because I could bring my courtroom experience in the classroom, and that teaching law made me a more effective lawyer, because I could bring my scholarship into the courtroom. In deciding which clients to accept, I have always looked for factual or legal issues I could bring into the classroom to benefit my students, and for cases that could bring my classroom experiences into the courtroom to benefit my clients. For me such cases present a win-win situation for students and clients alike.
The most intriguing of these “academic” cases involved a young man from Brooklyn who shot an acquaintance who he believed was alive but who was already dead at the moment he shot him. That case raised a classic legal conundrum that has been debated in classrooms throughout the world since the days of the Talmud: Is it murder, or attempted murder, to try to kill someone who, unbeknownst to you, is already dead? The Talmud gave the following theological response to that age-old question:
All agree that if one kills a person whose windpipe and larynx (gullet) are cut, or whose skull is fractured, he is free (for it is considered as if he had attacked a dead man). And they agree also that, if one killed a person who was struggling with death through sickness caused by Heaven, he is guilty of a capital crime.1
Until my Brooklyn case, this conundrum had generally been presented to students as an abstract hypothetical, as in the Talmud, since no real case had actually presented such a factual situation to an appellate court. One such classroom “hypo” came from a Sherlock Holmes story in which Holmes is being stalked by Colonel Sebastian Moran, who is determined to kill the sleuth. In order to lure his pursuer, Holmes commissions a likeness of his own head. The “bait” is placed in the window of Holmes’s house. Moran takes the bait and shoots “Sherlock Holmes” with his high-powered rifle. The bullet strikes the sculpture “plumb in the middle of the back of the head and smack through the ‘brain.’ ” Moran is captured and admits his intent to murder Holmes. As the arresting officer is taking Moran away, Holmes asks, “What charge do you intend to prefer?” Inspector Lestrade replies, “Why, of course, the attempted murder of Mr. Sherlock Holmes.” The great detective ponders for a moment and then shakes his head, suggesting that this would be a questionable application of the law. Neither the reader nor the students studying this hypothetical case can ascertain whether, under English law, a “killer” who shoots the “brains” out of a dummy, believing it to be a live human being, can be convicted of attempted murder. When an intended killer shoots the dummy, is he attempting to kill the dummy, which is both legally and factually impossible, or is he attempting to kill Holmes?
I had been fascinated by the law of attempts since my first year in law school. One of the earliest cases I studied involved a man who had placed a pistol to his wife’s head and pulled the trigger.2 But the gun did not fire, because he had forgotten to load it! Two police officers heard the man shout—after he had pulled the trigger—“It won’t fire. It won’t fire.” (There was no evidence as to whether the exclamation was made in a tone of assurance, disappointment, surprise, or desperation.) He was convicted of attempted murder, and he appealed on the ground that it had been impossible to kill his wife with an unloaded gun. The court upheld the conviction, concluding that the fact that the gun was unloaded when the defendant pulled the trigger “did not absolve him of [attempted murder], if he actually thought at the time that it was loaded.”3
I wrote a student article for the Yale Law Journal on this case4 in which I analyzed the concept of “impossible attempts,” using as my major “hypo” the “firing of a gun at an apparently sleeping man who had ultimately died of natural causes moments before the shooting.”5 I tried to distinguish between attempts that were impossible because of fortuitous factors that were beyond the control of the individual (such as the mechanical jamming of the gun as it was being fired) and attempts that failed because the individual exercised some control (such as a rapist who changed his mind when he discovered that his potential victim was pregnant).6 Citing Sigmund Freud’s studies of the unconscious, I speculated that the defendant’s failure to load the pistol may have reflected unconscious ambivalence on his part about killing his wife.7 My paper was sophomoric and fraught with all the pitfalls of armchair psychology, but it got me thinking about the law of attempts and the defense of impossibility. It also brought me to the attention of the Harvard Law School hiring committee.
When I began to teach Criminal Law several years later, I devoted a significant portion of the course to untangling the web of criminal attempts. Every year the class would divide into warring factions over the Sherlock Holmes story or the hypothetical case of the “killer” who shot his enemy believing him to be alive, only to be saved from a murder charge by his victim’s fortuitous demise moments earlier.
By the time the class was over, many of the students had come to the conclusion that there really was no principled distinction between attempts that were impossible and those foiled by unanticipated circu
mstances. In each case, the defendant intended to kill and did everything in his power to bring about that result. I then pressed them to consider whether in a moral sense there was any valid distinction between the defendant who did everything within his power to kill but failed and the defendant who actually succeeded. Why, I asked, should the fortuity of success or failure determine the extent of a defendant’s punishment?
The hypo I used to make this point involved two epileptic drivers who were both told by their doctors not to drive without taking their anticonvulsive medicine. They both disregarded this admonition and experienced seizures while driving through Harvard Square. They both crashed after blacking out: one killed a child crossing the street; the other pinned against a wall a bank robber escaping with a million dollars. At the moment before they blacked out, they were equally culpable, morally and legally. But following the crashes, their legal accountability would have been considerably different: The first would have been guilty of manslaughter for killing the child; the second might have been considered a hero eligible for a reward. The first would almost certainly have been sentenced to prison; the second—though perhaps guilty of reckless behavior—would likely have escaped punishment.
Why, I asked, is there such a considerable legal difference between these cases? They appear to be equally culpable from a moral point of view. The major difference—the death of the child versus the capture of the robber—was a fortuity that occurred after the two drivers were both unconscious and thus incapable of controlling their conduct. It is true that the first driver caused a death, while the second driver caused the capture of a robber, but why should legal consequences depend on the different fortuitous outcomes of morally comparable actions and intentions? Would the Angel Gabriel or God treat these equally culpable sinners differently in deciding whether to relegate them to hell, heaven, or somewhere in between? If not, then why should human law treat them so differently?
These were the kind of issues I loved to debate with my students, but there was always an air of unreality about the discussion of hypothetical corpses and car crashes. I looked for actual cases that added flesh and blood to the bones of these made-up cases.
I found one in a bizarre encounter between Melvin Dlugash and two friends in a Brooklyn basement in 1973.
An attorney I knew asked me whether I would be interested in arguing an appeal for the brother of a friend of his who had been convicted of murder for shooting a corpse.
“You’ve got to be kidding!” I exclaimed. “Cases like that don’t really happen except in the warped minds of law professors and fiction writers.”
He assured me that it had really happened. I told him that if the court record of the case actually presented that intriguing issue, I would definitely want to argue it. What an addition it would make to my Criminal Law course! I also told him that my academic background might help me win the case.
This is what the record showed: His friend’s brother, Melvin Dlugash, came from a middle-class family in the Bensonhurst section of Brooklyn (the neighborhood adjoining Boro Park). Mel had had a troubled life since his adolescence and had begun to run with a tough crowd. (Law professors, in the excitement of a fascinating fact pattern, sometimes tend to forget the human tragedies that often underlie it.)
On Friday night, December 21, 1973, Melvin Dlugash and two of his friends, Mike Geller and Joe Bush, had gone out drinking. Mike lived in a basement apartment in the Flatbush section of Brooklyn; Joe had been staying with him and was supposed to be sharing the rent. Back at the apartment that night, Mike asked Joe several times for his share of the rent, and Joe responded angrily that he didn’t owe anything. At about three o’clock, the argument between Joe and Mike escalated. Mike again demanded the rent money—$100—and Joe threatened to hurt him if he didn’t lay off. Mike repeated his demand.
Suddenly Joe drew a .38-caliber revolver from his pocket and fired his pistol three times at Mike’s heart. Mel watched as Mike fell to the floor, blood cascading from the wounds in his chest.
Joe then pointed his gun at Mel and said, “If you don’t shoot him, I’ll shoot you.” Joe wanted it to appear that they were in it together, so that Mel would not be able to point an accusing finger at him, because under New York law the uncorroborated testimony of an “accomplice” is insufficient for a conviction.8 After some hesitation, Mel walked over to Mike’s prone and motionless body and pulled the trigger of his .22-caliber automatic pistol. Five bullets ripped into Mike’s head several minutes after Joe’s .38-caliber bullets had penetrated Mike’s heart. Mel was convicted of murder. I agreed to handle his appeal.
I argued that the murder conviction must be reversed on the basis of scientific evidence that it was impossible to know whether the victim was alive or dead at the moment my client shot him in the head, since someone else had shot him in the heart just moments earlier.9 I cited the scientific and medical literature relating to gunshot wounds in the heart and the time it takes for death to result. The court agreed with my scientific argument and ruled that the prosecution had not satisfied its burden of proving beyond a reasonable doubt that Mike was still alive when my client’s bullet shattered his brain.10 I also argued that my client could not be convicted of attempted murder, on the ground that since it is factually impossible to murder a corpse, it is also legally impossible to attempt to do that which it is factually impossible to do.11 The court agreed with this argument as well and ordered my client to go free.
It was a total victory, but short-lived, because the state appealed the decision to New York’s highest court. On the second appeal, which I argued in Albany, the court agreed that my client could not be convicted of murder because “man dies but once,” but it concluded that he should be convicted of attempted murder.12 Not willing to give up, I then brought a federal habeas corpus petition, and the federal court threw out the attempted murder conviction as well, on the ground that the intent requirement for proving attempted murder was higher than it was for a completed murder13—an academic argument if there ever was one! My experience in the classroom helped my client remain free.
This intriguing case14 is taught today in many law schools as part of the standard course on criminal law.15 The issue of whether it is legally possible to attempt to do what is factually impossible—namely, to kill a dead person—continues to confound new generations of law students.
Another attempted murder case presented a problem right out of the Bible. My client was accused of attempting to kill his sister’s former boyfriend. The boyfriend was suspected of burning down the sister’s house and causing painful burns from which she ultimately died. But while she was still alive, my client—her brother—went to her former boyfriend’s home, held a knife over his chest, and said he would kill him unless he admitted his role in the fire. The police burst into the apartment and disarmed my client before he could stab the former boyfriend. My client was convicted of attempting to kill the former boyfriend, and I was retained to argue the appeal.
I analogized the situation to the one described in the book of Genesis when God told Abraham to sacrifice his son Isaac, and Abraham was standing, knife in hand, ready to inflict the fatal wound, when God’s angel came down and told him to stop.16 I argued that we can never know whether my client would actually have killed the boyfriend had the police not intervened, just as we can never know for sure whether Abraham would actually have complied with God’s command. There were other issues in the case as well and we won the appeal.17 The state declined to reprosecute and this client too went free. I use this case as well in my teaching in both Criminal Law and a seminar on the biblical sources of law.
A highly publicized case that raised issues similar to those discussed in the classroom grew out of the making of a major motion picture directed by Steven Spielberg, John Landis, and others. The film was Twilight Zone: The Movie,18 based on the television series The Twilight Zone.19 There were four segments to the film. John Landis, already famous for directing Animal House, The Blues
Brothers, and other megahits, was directing a segment involving the Vietnam War.20 The star of that segment was the veteran actor Vic Morrow. The scene at issue called for Morrow’s character to be running through a rice paddy, in pitch darkness, carrying two children as helicopters fired at them.
Landis wanted to make the scene as realistic as possible, so he filmed it at night, with extensive pyrotechnics and a real helicopter flying low to the ground. Tragically, the helicopter crashed, and fell on Morrow and the children, killing them instantly. Landis was charged with involuntary manslaughter. He was the first film director in history to be criminally charged with causing the death of an actor.21 The prosecutor was determined to see him imprisoned for many years.
The Landis case involved a variation of the classroom hypothetical involving the two cars crashing into a child and a bank robber. When the helicopter crashed to the ground, it could have fallen in one direction or another. If it had fallen in one direction, it might have killed Landis, but because it fell in the other direction, it killed the actors. Landis had no control over the direction the helicopter would travel as it crashed. In that sense, he was like the epileptic driver after he blacked out. Yet he was being criminally charged with manslaughter on the ground that his direction caused the deaths.
The Landis case also involved daunting issues of causation in science and law: Did Landis “cause” the death of the victims; or was the mechanical failure of the helicopter the actual cause? Those questions were starkly presented by the facts in the Landis case.
An important issue at the trial was whether the accident should have been foreseeable to Landis. If it was foreseeable to a reasonably prudent director that a helicopter, placed in the circumstances in which this one had been placed, might malfunction and crash, then the directorial decision to have the helicopter fly close to the pyrotechnics could satisfy the legal criteria for involuntary manslaughter. But if the crash could not reasonably have been anticipated, then it would have to be regarded as an accident, giving rise, perhaps, to civil liability, but not to a criminal charge. The stakes were high both for Landis and for the film industry.
Taking the Stand Page 40