by Mike Kelly
Meanwhile, other Americans who had been victimized in some way by Iran had won lawsuits, thus increasing pressure on the Clinton administration to find a way to settle the financial issues with Iran. One of the most vocal victims turned out to be Terry Anderson, the former chief Middle East correspondent for the Associated Press who had been held hostage for more than six years by Iranian-backed militants in Lebanon. A month before Arline, Vicki, and Len began their trial, Anderson won a $341 million damage claim against Iran. “Terrorism is a cheap way for them to wage war against their enemies,” Anderson said of Iran’s strategy. “We have to take away their money and punish them for it.”
Such was the political, diplomatic, and legal landscape that Arline, Vicki, and Len faced as they took their seats in Judge Lamberth’s courtroom. They had become somewhat resigned, as had Stephen Flatow, that they might never collect on that judgment—if they won.
“I felt like we had to do it,” said Vicki years later of her decision to go ahead with the trial. “We had to respond. I had to fight for Matt. I had to fight for all of us who were involved in this way.”
Flatow did not come to the trial to watch the testimony. But both families could feel his presence. Besides Flatow’s lawyers, Steve Perles and Tom Fay, the Dukers and Eisenfelds also summoned several of the same witnesses who testified at the Flatow case. But they also faced the same problem as Flatow: the absence of any representatives from the Iranian government to fight the lawsuit.
For the Duker-Eisenfeld trial, however, Perles and Fay developed a slightly different strategy than the one that was so successful with the Flatow case. Instead of scheduling testimony about Iran’s links to the Jaffa Road bombing in the trial’s final hours, they devoted most of the first day to it.
Once again, the star witness was Patrick Clawson, meticulously guiding everyone through his analysis of the Iranian government budget and its appropriations for Palestinian militant attacks against Israel. This time Clawson’s conclusions were bolstered by Hassan Salameh’s own words in which he explained how he had learned his bomb-making skills in Iran and then how he sneaked into Israel from the Gaza Strip and recruited a suicide bomber. Salameh did not testify in person, but Perles, with the help of his contacts in Israel’s Mossad spy service, obtained a declassified copy of Salameh’s statement to Israeli authorities and introduced it as evidence. Perles and Fay also brought in the Israeli terrorism expert Reuven Paz to analyze the transcript of Salameh’s statement and to explain the significance of his Iranian training.
Perles and Fay needed to show that Iran played a direct role in the Jaffa Road bombing. Certainly, the testimony of the first day offered ample proof. But in a case that involves a charge of wrongful death, experienced trial lawyers say it’s also important to hear from the victims.
After Clawson and Paz testified on the first day, Matt’s younger sister, Amy, rose from her seat and took the witness stand. She spoke of how, as a little girl, she would call her brother “Bubba” and constantly repeat what he said. She also described hearing of Matt’s death while finishing the final semester of her senior year of college and of the gaping emotional hole that had suddenly appeared in her close-knit family.
“Our family was not what it was,” Amy said. She said her brother’s murder “changed completely who I am” and that she feels a “deep loss that I carry with me wherever I go. It’s a loss that ripples outward from me.”
Sara Duker’s youngest sister, Ariella, followed Amy. It was now the second day of the trial. Ariella was fourteen when Sara was killed. Now nineteen and a college freshman at the State University of New York in Binghamton, she noted—as Amy had done the previous day—how still deeply painful was the loss of her sister.
“Tell me a little bit about what you remember first when you think of Sara,” Fay asked.
“The thing I think of first is a Monopoly board,” Ariella said. “Because she taught me how to play Monopoly, and we’d always play that every week when I was growing up.”
Fay’s strategy was to humanize Sara and Matt—to portray them as more than just names on a list of victims of a bombing in Jerusalem. At the same time, Fay wanted to show that Sara’s death—and Matt’s, too—had left a void in their family’s lives and in the extended family that would have been shaped by their probable marriage.
Ariella spoke of how she occasionally asked Sara for help in explaining Jewish customs. She described how she and Sara sometimes made “noodle necklaces.” She mentioned how she told Matt once how much she loved old T-shirts, and that he immediately reached into a drawer and handed her a stack from the various wrestling camps he attended.
“Do you still have them?” Fay asked.
“Yep,” said Ariella.
Fay then gently guided Ariella through her memories of the day Sara died.
“How did you feel then?” Fay asked.
“I pictured her flawless in this coffin,” Ariella said. “But I knew that it wasn’t like that and I knew that it was really violent.”
Fay paused.
“Okay. What do you think Sara would want to have come out of this litigation?”
“I like to think that she’s looking down on this and she’s thinking that if this can somehow make a few less bombings happen, then it’s worth it,” Ariella said. “Because it’s not just the people who die in these things. It’s the people who have to live with this every day that have to suffer the most.”
Ariella then turned her thoughts to the testimony earlier in the trial by an economist, called by Fay to explain what the deaths of Matt and Sara meant in terms of lost income. For both families, it was emotionally distressing to hear two lives reduced to a dollar figure. But in most wrongful death lawsuits, such testimony is a necessary ingredient and a guide for a judge in arriving at how much financial compensation should be awarded to the victims’ families.
Economist Jerome Paige described how he had calculated the potential financial worth of Matt and Sara, based on their life expectancies, their education, and the professions they were likely to enter—Matt as a rabbi and Sara as a scientist. Paige estimated that Sara would have earned more than $3.2 million over her lifetime and Matt’s gross income would have been $2.6 million.
“There are things that I don’t think other nineteen-year-olds need to know,” Ariella said. “I don’t think anyone should have to know how to calculate somebody’s life—like how much they’re worth. I think that’s awful, and I don’t want anyone else to have to do that.”
Amy Eisenfeid and Ariella Duker each testified for less than thirty minutes. But in their comments both managed to drive home a key point that Fay and Perles wanted to make, namely, that the Jaffa Road bombing, was not an act of war between two armies. Innocent people had been killed—and their relatives were still wounded.
It was a theme that continued throughout the afternoon.
Ariella stepped down from the witness stand, and Fay called Sara’s other sister, twenty-four-year-old Tamara, who had graduated from Duke University two years earlier and was finishing up a master’s degree at Georgetown University’s School of Foreign Service.
Tamara remembered how she and Sara often watched TV cartoon shows on Saturday mornings as little girls. She described Sara’s quirky style of dressing in high school and in college. She talked of how Sara had grown closer to Matt. Then, Fay asked “If Sara—and Matt, for that matter—if both of them were here, what do you think they would want to see come out of litigation like this?”
“You know,” said Tamara, “they read a lot and they had a sense of literary irony. And so, I think some sort of poetic justice in which, when decision-makers in Iran choose to spend their dollars to subsidize terrorist activity, that it would be imposed on them that for every dollar they spend, two dollars goes toward a cause that’s completely inimical to their views of hatred and violence. So for every dollar they spend to sponsor a terrorist, t
wo dollars would go toward charities or organizations that sponsor peaceful types of coexistence activities, and so maybe they’d think twice about subsidizing the activities that they have chosen to subsidize.”
Next Fay called Vicki Eisenfeld. Fay began with several basic questions such as the names of her children.
The question was not meant to reveal any unusual information. It was merely Fay’s attempt to set a calm tone.
Vicki mentioned Matthew first, but as she said Amy’s name, she started to choke up.
“Do you want a moment?” Fay interjected.
“I’ll be okay,” Vicki said.
She went on to describe Matt’s birth and how the family moved to Alabama and then New Orleans because her husband served as a physician in the US Army after he graduated from Yale Medical School. She talked of Matt’s allergies, his love of learning, his “tremendous curiosity” and how he “learned very quickly how to make friends and bring friends into the house” because the family moved so often in those early years. She mentioned how he captained three high school teams—wrestling, cross country, and track—and how he loved taking classes in humanities and in languages, including Chinese, and, finally, how he had grown intensely interested in exploring his Jewish faith and pursuing a career as a rabbi.
“I think it was a natural progression,” Vicki said of Matt’s focus on Judaism. “The more he studied, the more he wanted to know.”
Fay asked how Matt and Sara got along.
“It was—it seemed—like a perfect match,” Vicki said.
Then Fay turned his attention to February 25, 1996.
Vicki described the early morning telephone call from Kathleen Riley at the US Consulate in Jerusalem.
“Could you tell the court what this has done to you?” Fay said. “What Matthew’s death has done to you—this whole event, Matthew’s death and Sara’s, for that matter? What this event has done to you personally, and to your husband and your daughter.”
“Well,” Vicki began. “It changes everything. You are not the same. Everything changes. You’re not the same person you were before. You’re just not. So you basically have to—you start to rebuild a whole person all over again.”
She paused.
“The relationships to people change,” she continued. “It breaks your heart when you have to listen to your daughter go through all this pain and watch her on the stand having to talk about this. And you never wanted her to be an only child and there she is, and she’s trying to take care of you and you’re supposed to be taking care of her.”
She paused again. Fay did not interrupt. He wanted Vicki to keep talking.
“You wish you weren’t breathing,” she said. “And then at the same time, you know, Matthew will come back in my head and it’s like—you make a choice every single day. You have a choice to be miserable every single day or you have a choice to get up and find joy again and make that be a part of your life. You have to learn that when it comes, that it’s okay to feel it.”
“Ms. Eisenfeld,” Fay interjected. “If Matt could be here and tell us what he would want to come out of this litigation, what do you think he would say?”
“I think don’t give up,” Vicki said. “That each one of us has a piece in this. Take it one step at a time. Find a way to find the peace. Find a way. Don’t ever believe you can’t change things. Every time there’s an act of terror—every time there’s some evil piece, answer it. Do it one person at a time. That each of us has a responsibility. And don’t give up.”
Fay had one more question.
“Would you want to see something done to stop this type of attack?” he asked.
“That’s why I’m here,” Vicki said. “Because at the moment, it’s the only way I know to at least begin to address it.”
She then thought of what her daughter, Amy, had said once when the two spoke about Matt’s death and whether the family should pursue a lawsuit.
“I remember saying to Amy, ‘Do you think we’re doing the right thing?’ And she said, ‘Mom, if we don’t do anything, it’s like we said, well, it’s okay to kill our kid. You can do whatever you want.’ ”
Vicki paused a last time.
“I think this is the best means we have right now to respond in some civil, peaceful, responsible way,” she said.
“Thank you,” Fay said, turning to Judge Lamberth.
“Your honor, do you have any questions?” Fay asked.
“No,” Lamberth said.
Fay then summoned Len Eisenfeld to the stand.
As the afternoon wore on, Fay’s goal was to craft a verbal portrait of Matt and Sara through the words of their siblings and parents while also demonstrating how their deaths had left deep emotional scars too. As Vicki had done moments earlier, Len spoke of how Matt had many diverse interests as a boy, from games such as Dungeons and Dragons to sports, even football in a father-son league.
“We had T-shirts,” Len said. “We developed a name of the team. We were called the Scorpions. And we played against other father and son teams, and sometimes we won and a lot of times we lost.”
Len described Matt’s budding interest in Judaism, how he studied the Hebrew language, and eventually how he began to consider becoming a rabbi.
“What was your impression of Sara when you met her?” Fay asked.
“I remember that very vividly,” Len said. “I had known about her and his feeling about her and what kind of person she was, and within a second of meeting her my arms were around her and we were giving each other hugs. She was somebody I connected to instantaneously.”
Fay asked about the last time he spoke to Matt on the telephone—the Sunday before the bombing.
“We talked every Sunday,” Len said.
Fay wondered if Matt mentioned that he planned to take a trip with Sara to explore the archaeological site at Petra in Jordan.
“It sounded like a great opportunity,” Len said. But at the same time, he worried whether his son and Sara would be safe.
“I was afraid,” Len said. “I thought he should take his kippah—his yarmulke—and put it in his pocket and not be identified as Jewish in Jordan and that he would be a target. And I said to him—there were two last things I said to him. I didn’t want anybody doing anything wonderful for Allah. And the last thing I told him was I loved him.”
Fay decided to raise an issue he had not discussed before: Was Len aware that other victims, such as Stephen Flatow, faced “difficulties” in “collecting damages” even though they had won favorable judgments in their lawsuits?
“Yes. I am aware,” Len said.
Fay pressed on. “Could you tell us a little bit what you would like to see come out of this and why you went ahead with it, knowing that there is no guarantee of ever getting any kind of compensation for all the pain you’ve gone through and are going through with this litigation?”
Len began by mentioning how his father had been a lawyer and had instilled in him a “tremendous respect for United States jurisprudence” as a “civilized way” to address grievances. He said he would like to use some of the money his family might collect from Iran “to do good in the world rather than doing harm.”
“I hope to God that we will be able to help people,” he added.
Then Len turned his attention to the target of his family’s lawsuit—Iran.
“I would like to see the Islamic Republic of Iran stop doing terrorism, and that we could have that republic, that country, rejoin civilized humanity and that there would be understanding and peace,” Len said. “That’s the only way to go.”
Len left the witness stand and Arline Duker rose from her seat and came forward. Fay wanted hers to be the last voice.
Arline talked of Sara’s budding interest in science, “a natural born scientist,” she said. But at the same time, Sara loved writing and Judaism and had develope
d an intellectual desire to approach old topics with a new flair—so much so that, for her senior Centennial Scholars’ thesis on a first-century rabbi’s writings, she sought guidance from a Roman Catholic nun, Sister Celia Deutsch, who was an expert in Jewish scriptures.
Fay interjected that “Sister Celia Deutsch said that Sara wanted to be a part of history, not just read history, a doer; in other words, not just an intellectual.”
Arline responded by mentioning a quote Sara had selected to appear with her photo in her high school yearbook: “Keep both feet planted firmly in the clouds.”
“I’ve not found this anywhere else,” Arline said, “so she may have actually made this up. And I think that it really captures both sides of her.”
As with Vicki and Len, Fay guided Arline through a recounting of the day she learned of Sara’s death. Then, Fay asked: “Could you tell us the effect that this has had on you and your family?”
Arline began with a general answer. “I think we’ve all struggled to maintain our lives or to rebuild,” she said. Then she corrected herself slightly.
“It’s not even maintaining,” she said. “Your life falls apart. I’ve spent four years trying to live what appears to be somewhat of a normal life. I work and I do okay at work. I have some friends and I go out and I try to be with people because I don’t want to throw my life away or my children’s lives. But I have to tell you that every day it’s like walking uphill . . . Every morning when I wake up, or at some time during the day, there is some part of something that reminds me that there’s this hole, that there is this child of mine who isn’t here and never will be.”