3 Scott Shane, “Iranian Dissidents Convince U.S. to Drop Terror Label,” September 21, 2012.
4 This quotation is attributed to Voltaire but its original source is unknown. It first appeared in Evelyn Beatrice Hall, The Friends of Voltaire 199 (1906). Voltaire did apparently write the following: “I detest what you write, but I would give my life to make it possible for you to continue to write.”
5 The opposite side of the private self-censorship coin is the private circumvention of governmental censorship. Private hacking groups such as Anonymous will do everything in their power to thwart governmental censorship of any kind, including the use of unlawful means, even violence, to subvert or retaliate for legitimate restrictions on publication. This means that the future battles for freedom of speech are likely to be fought on private as well as governmental battlefields and may well involve violent actions on all sides. William J. Bennett and Alan M. Dershowitz, “A Failure of the Press,” Washington Post, February 23, 2006.
6 See Nina Shea, “A Perverse Process,” New York Post, December 16, 2011.
Chapter 12
Life Intrudes on Law
1 The original quotation, according to Boswell’s famous biography, is as follows: “When a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully.” James Boswell, The Life of Samuel Johnson 612 (Penguin Classics, 2008).
2 Alan M. Dershowitz, The Best Defense, chapter 1 (1983).
3 See Alan M. Dershowitz, The Best Defense, chapter 7 (1983); Alan M. Dershowtiz, Chutzpah, chapter 8 (1991); Telford Taylor (with Alan Dershowitz, George Fletcher, Leon Lipson, and Melvin Stein), Courts of Terror (1976).
Part III
Criminal Justice
Chapter 13
“Death Is Different”
1 Gregg v. Georgia, 428 U.S. 153, 188 (1976).
2 I have litigated or consulted on more than three dozen cases involving the death or intended death of human beings. These cases fall into three categories: (1) cases in which the defendant faced the death penalty; (2) cases in which the defendant was charged with killing someone; and (3) cases in which the defendant was accused of attempting, intending, or conspiring to kill.
3 The Tison brothers case was made into the movie A Killer in the Family (Warner Bros., 1983); the Claus von Bülow case was the basis for my book Reversal of Fortune (1985) and the film of the same name (Warner Bros., 1990); the O. J. Simpson case was the subject of many documentaries and books, including my own Reasonable Doubts (1997); the Jeffrey MacDonald case was made into an award-winning TV miniseries, Fatal Vision (1984), named after the bestselling book by Joe McGinniss (1983); the Sybers case was featured on the A&E TV show Cold Case Files (episode: “The Perfect Murder,” season 4, episode 29, first aired April, 2, 2000); the Borukova case was the subject of Janet Malcolm, Iphigenia in Forest Hills (2011); the Sandy Murphy case was featured in several books and movies, including the TV movie Sex and Lies in the City (Lifetime, 2008), starring Mena Suvari; the John Connolly case inspired the Academy Award–winning movie The Departed (2006); the Angela Davis case was the subject of Bettina Aptheker’s The Morning Breaks (1975); the murder of John Lennon was the subject of numerous books and movies, including The Killing of John Lennon (2006) and Jack Jones, Let Me Take You Down (1992); the murder case of Dr. Peter Rosier was the subject of Stanley Rosenblatt’s Murder of Mercy (1992); the Chappaquiddick incident was also subject to many scandalous treatments, including A&E’s Investigative Report—Chappaquiddick (2008), Leo Damore’s Senatorial Privilege (1995), Jerry Shaffer and Leslie H. Leland’s Left to Die (2010), and Richard and Thomas Tedrow’s Death at Chappaquiddick (1980); the JDL murder case was the subject of several books and documentaries, including my own The Best Defense, chapter 1 (1983); the Lucille Miller case inspired the essay “Some Dreamers of the Golden Dream” (1966), in Joan Didion, Slouching Toward Bethlehem 3–28 (2008).
4 Rudolph v. Alabama, 375 U.S. 889 (1963).
5 Evan J. Mandery, A Wild Justice: The Death and Resurrection of Capital Punishment in America (2013).
6 For the original understanding of the Eighth Amendment, see John D. Bessler, Cruel and Unusual: The American Death Penalty and the Founder’s Eighth Amendment 171 (2012).
7 Other misspellings on the debate card included “clen” for “clean” and “of” for “off.”
8 Evan J. Mandery, A Wild Justice: The Death and Resurrection of Capital Punishment in America, 16 (2013).
9 “Judaism was the starting point, but the core of the true force of their bond was a shared intellectual commitment to civil liberties and tolerance. They worked together through scholarship and advocacy against the death penalty for the remainder of Goldberg’s life. It is difficult to imagine that Goldberg could have found a more willing and able confederate than Alan Dershowitz.” Evan J. Mandery, A Wild Justice: The Death and Resurrection of Capital Punishment in America 21 (2013).
10 Trop v. Dulles, 356 U.S. 86, 99 (1958).
11 I published my draft, decades later, in Alan M. Dershowitz, Shouting Fire 279–89 (2002).
12 Weems v. United States, 217 U.S. 349 (1910).
13 Rudolph v. Alabama, 375 U.S. 889 (1963).
14 Ibid. 889–91.
15 “U.S. Supreme Court Trio Encourages Rape,” New Hampshire Union Leader, In Chambers: Stories of Supreme Court Law Clerks and Their Justices (2012).
16 Sims v. Balkcom, 220 Ga. 7, 11–12 (1964).
17 Ibid. 11.
18 Herbert L. Packer, “Making the Punishment Fit the Crime,” 77 Harvard Law Review 1071, 1081–82 (1964).
19 Michael Meltsner, Cruel and Unusual: The Supreme Court and Capital Punishment (1973).
20 McGautha v. California, 402 U.S. 183, 185 (1971).
21 People v. Anderson, 6 Cal. 3d 628, 633, 493 P. 2d 880, 882 (1972).
22 408 U.S. 238 (1972).
23 Ibid. 375 (Burger, C.J., dissenting).
24 See, e.g., Arthur J. Goldberg and Alan M. Dershowitz, “An End to the Death Penalty,” New York Times, June 6, 1971; Arthur J. Goldberg and Alan M. Dershowitz, “Declaring the Death Penalty Unconstitutional,” 83 Harvard Law Review 1773 (1970).
25 Alan M. Dershowitz, Jerusalem Post, 1987.
26 Ibid.
27 Alan Dershowitz, The Guardian, April 22, 2013.
28 Chris Hedges, “Acquittal in Jerusalem; Israel Courts Sets Demjanjuk Free, But He Is Now Without a Country,” New York Times, July 30, 1993.
29 “Munich: Demjanjuk Found Guilty of Helping Kill 27,900 Jews,” Jerusalem Post, December 5, 2011.
30 Robert D. McFadden, “John Demjanjuk, 91, Dogged by Charges of Atrocities as Nazi Camp Guard, Dies,” New York Times, March 17, 2011.
Chapter 14
The Death Penalty for Those Who Don’t Kill
1 I previously wrote about an early aspect of the case in my book The Best Defense, chapter 9 (1983). A variation on the facts of the case was featured as a subplot in the film Reversal of Fortune (Warner Bros., 1990).
2 Under the so-called Pinkerton rule: “So long as the partnership in crime continues, the partners act for each other in carrying it forward.… An overt act of one partner may be the act of all without any new agreement specifically directed to that act.” Pinkerton v. United States, 328 U.S. 640, 646–47 (1946).
3 The felony-murder doctrine can be traced back to English common law, but England, as well as other common law countries, abolished the doctrine some time ago. Civil law countries do not have such a doctrine. As the comparative law scholar James Whitman put it: “The view in Europe is that we hold people responsible for their own acts and not the acts of others.” Quoted in Adam Liptak, “Serving for Providing Car to Killers,” New York Times, December 4, 2007. For this reason, criminal conspiracies are also not part of the civil law tradition, but there is an emerging concept of group crime in some jurisdictions, growing in part out of the fear of terrorist organizations.
4 408 U. S. 238 (1972).
5 A Killer in the Family (Warner Bros.,
1983).
6 458 U.S. 782 (1982).
7 Ibid. 799.
8 Only four votes are needed for the court to grant a writ of certiorari, but five votes are needed to reverse a conviction.
9 The oral argument in this case can be accessed at the website of the Oyez Project at IIT Chicago–Kent College of Law, http://www.oyez.org/cases/1980-1989/1986/1986_84_6075.
10 Tison v. Arizona, 481 U.S. 137, 150 (1987).
11 Ibid. 157.
12 Ibid. 157–58.
13 The majority sloppily used two different formulations: “reckless disregard” and “reckless indifference,” the former sounding as if it required a more affirmative finding of evil intent than the latter.
14 Another one of my clients, a far more sophisticated one, did convert to Judaism—on a weekly basis. He discovered that all the Jews in a particular federal prison were taken out every Friday night to have Shabbos dinner in the homes of local Jews, where they were treated to wonderful home-cooked meals. He told me that since he had become a Jew, he had gotten to love “those balls made out of fish and the other balls that they put in the chicken soup.” I reminded him that he had always been a very religious Catholic, and he said, “Oh, I’m still a religious Catholic. My priest has given me permission to be a Jew on Friday night as long as I go back to being a Catholic for Sunday morning.”
Chapter 15
Using Science, Law, Logic, and Experience to Disprove Murder
1 Oliver Wendell Holmes, The Common Law, Lecture I: “Early Forms of Liability” 1 (1881). Whether he knew it or not, Holmes was echoing the views of the fifteenth-century Jewish sage Isaac Abravanal, who observed that “experience is more authoritative than logic.” Don Isaac Abravanel: Statesman and Philosopher (Benzion Netanyaha, ed.) 174 (1998).
2 Genesis 4:3–17. I discuss this story in Alan M. Dershowitz, The Genesis of Justice, chapter 2 (2001).
3 Genesis 4:9.
4 William Shakespeare, Hamlet, Act 1, Scene V.
5 Genesis 39:7–20. For my interpretation of the story, see The Genesis of Justice, chapter 10 (2001).
6 William Shakespeare, Othello, Act 2, Scene 1.
7 Fyodor Dostoyevsky, Crime and Punishment, part 6, chapter 8 (1866).
8 In nineteenth-century America, sheriffs would tell uneducated suspects that if the corpse bled in their presence, it proved their guilt. See George and Ira Gershwin, Porgy and Bess, Act 3, Scene 2 (1935).
9 Henry J. Friendly, “Is Innocence Irrelevant? Collateral Attack on Criminal Judgments,” 38 University of Chicago Law Review 142 (1970). Judge Friendly starts his lecture by quoting Justice Black’s statement that “the defendant’s guilt or innocence is at least one of the vital considerations in determining whether collateral relief should be available to a convicted defendant.” Kaufman v. United States, 394 U.S. 217, 235–36 (1969) (Black, J., dissenting).
10 Federal Rules of Evidence 103(a). (“A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party.”); Federal Rules of Criminal Procedure 52(a). (“Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.”).
11 See the Jewish Defense League case, U.S. v. Huss, 482 F.2d 38 (1973).
12 In one case, a client who was acquitted of murder was subsequently convicted of an entirely different type of crime. I did not represent him the second time. He was convicted.
13 In some jurisdictions the defendant is given no opportunity to present exculpatory evidence to the grand jury. See also United States v. Williams, 504 U.S. 36 (1992) (holding that a district court may not dismiss an indictment because the prosecution failed to disclose “substantial exculpatory evidence” in its possession).
14 Missouri v. Frye, 132 S. Ct. 1399 (2012).
15 U.S. Department of Justice, United States Attorneys’ Annual Statistic Report, Fiscal Year 2010. For state prosecutions, the conviction rate is similarly high.
16 Annual Report of the Administrative Office of the U.S. Courts. For the twelve months that ended March 31, the reversal rate for 2012 was 6.4 percent, for 2011 it was 5.6 percent, and for 2010 it was 5.8 percent.
17 According to the Court Statistics Project of the National Center for State Courts (NCSC), the reversal rate in state courts ranges from 1 percent in New York to 9 percent in Wyoming.
18 When Justice Ruth Bader Ginsburg was a civil liberties lawyer with a special interest in promoting feminist causes, she often took cases involving male clients whose cases would establish precedents favorable to women.
19 Joseph Stropnicky, 19 M.D.L.R. 39, 41 (1997).
20 See The Best Defense 413–14 (1983). For a more recent account of lawyers being underzealous, see Adam Liptak, “Lawyers Stumble, and Clients Take Fall,” New York Times, January 7, 2013.
21 See Alan M. Dershowitz, The Genesis of Justice 85–92 (2001).
22 Lally Weymouth, “Von Bulow’s Appeal Strategy,” New York, May 10, 1982, 9.
23 Stephen Bello, “How Can You Sleep at Night,” Esquire, 1983, vol. 99.
24 William Wright, The Von Bülow Affair 330 (1984).
25 Alan M. Dershowitz, Reversal of Fortune (1985); Alan M. Dershowitz, Reasonable Doubts (1997).
26 Alan M. Dershowitz, Reasonable Doubts 24–25 (1997).
27 Miller v. California, 389 U.S. 968 (1967).
28 At a panel in New York, Darden suggested that Johnnie Cochran may have tampered with the glove before O.J. was asked to try it on, but no one on the defense team had access to the glove until after O.J. tried it on. See, e.g., Clayton Sandell, “O.J. Simpson Trial Prosecutor Accuses Johnnie Cochran of Tampering with Evidence,” ABC News, September 9, 2012.
29 State v. von Bülow, 475 A.2d 995 (R.I. 1984).
30 I was a major character in a novel called Hope: A Tragedy by Shalom Auslander (2012).
31 The case made local headlines for years.
32 Sybers v. State, 841 So. 2d 532, 541 (Fla. Dist. Ct. App. 2003) (quoting the Frye standard governing the admissibility of scientific evidence in Florida).
33 Ibid. (internal quotations omitted).
34 Ibid. (internal quotations omitted).
35 Ibid. 532.
36 The Rules of Professional Conduct prohibit a lawyer from offering evidence that he reasonably believes to be false. Model Rules of Professional Conduct (2004), Rule 3.3: Candor Toward the Tribunal (3)(a).
37 “Governor Won’t Investigate Prosecutor,” Miami Herald, November 15, 2003.
38 Paul Pinkham, “Won’t Be U.S. Attorney,” Florida Times Union, June 9, 2010.
39 “Facing Retrial, State Drops Murder Case,” Herald Tribune, March 13, 2003.
40 Robert Louis Stevenson, “The Body Snatchers” (1884).
41 The Body Snatcher (RKO Radio Pictures, 1945).
42 Burke and Hare (Ealing Studios, 2010).
43 Glen Puit, “Doctor: Marks Prove Binion Murdered,” Las Vegas Review-Journal, October 27, 2004.
44 Angie Wagner, “Ted Binion Overdosed on Sedatives, Authorities Believe,” Las Vegas Sun, September 19, 1998.
45 “Autopsy: Binion May Have Had Fatal Cocktail,” Las Vegas Sun, July 16, 1999.
46 Angie Wagner, “Binion Feared Girlfriend Would Kill Him, Attorney Testifies,” Las Vegas Sun, August 27, 1999.
47 I had used this phrase before in describing the prosecutors’ tactic in the von Bülow case. See Alan M. Dershowitz, Reversal of Fortune 213 (1985).
48 Peter O’Connell, “Guilty All Counts,” Las Vegas Review-Journal, May 20, 2000.
49 The same was true with regard to the “cocktail of death” theory, since no one could know which theory formed the basis for the conviction, or if some jurors found the first, while others found the second. If either theory failed, there would have to be a new trial.
50 Glen Puit, “Binion Forensic Evidence Crucial,” Las Vegas Review-Journal, November 27, 2004.
51 Ibid.
52 William Shake
speare, Hamlet, Act 1, Scene 5.
53 Federal Rules of Evidence 801.
54 The Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” U.S. Constitution, amend. XI.
55 Federal Rules of Evidence 804(b)(6). (“Not excluded by the rule against hearsay [is] … [a] statement offered against a party that wrongfully caused—or acquiesced in wrongfully causing—the declarant’s unavailability as a witness, and did so intending that result.”)
56 Federal Rules of Evidence 804(b)(2). (“Not excluded by the rule against hearsay [is] … a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.”)
57 Federal Rules of Evidence 803 (3). (“Not excluded by the rule against hearsay [is] … [a] statement of the declarant’s then-existing state of mind.”)
58 This is what the court ruled:
Assuming that the statement was relevant to rebut the defense theories, we conclude that the district court abused its discretion under Shults in admitting the statement without an appropriate limiting instruction. The prejudicial impact was great: the statement strongly implied Murphy killed Binion. Moreover, the relevance of the statement was equivocal, even though there was little other evidence of Binion’s state of mind before his death. But if the statement was relevant to show Binion’s state of mind at the time he made the statement, the exception still does not allow the statement to be used as evidence of the intent or conduct of anyone else—in this case, Murphy. The district court did not give a limiting instruction advising the jury that the statement was only admissible for the limited purpose of showing Binion’s state of mind.
Tabish v. State, 119 Nev. 293, 310–11 (2003).
59 Glen Puit, “Reversal of Fortunes: Jurors Acquit Tabish, Murphy of Murder,” Las Vegas Review-Journal, November 24, 2004.
60 See, e.g., “Doctor Freed in Mercy Killing of Ailing Wife,” Los Angeles Times, December 1, 1988.
Taking the Stand Page 65