ONE AFTERNOON in January 1972, bombs exploded simultaneously at two Manhattan office buildings. The target was Sol Hurok, who had brought the Bolshoi Ballet and other Soviet artists to the United States. Among the many innocent victims, one died, Iris Kones, a 27-year-old assistant to Hurok.
Five months later, when a New York grand jury indicated Sheldon Seigal and two other members of the militant Jewish Defense League for the murder of Iris Kones, the stage was set for the first federal court criminal trial in New York involving the death penalty since Julius and Ethel Rosenburg were executed in 1953. Since Seigel hired as his lawyer Harvard law professor Alan Dershowitz, his childhood friend from Brooklyn, the stage was also set for a new career for Dershowitz as a criminal defense lawyer, a career he describes in his new book The Best Defense.
Dershowitz took the JDL case and dozens more like it in the following decade because of a deep commitment to the integrity of the legal process and the constitutional rights it protects, because no one else would represent the defendant, and because Dershowitz believed that he and his students could learn from the practical experiences of the courtroom. His cases present some of our most perplexing and controversial legal and social issues, including the constitutionality of the death penalty; the regulation of personal liberties and freedom of expression; and government use of wiretaps, informants, and entrapment. These issues arise in his defense of terrorists, porn stars, a psychopathic killer, a Stalinist, a CIA agent, and even famous lawyers.
But this is more than a book by a lawyer about his cases. It is an articulate defense of many fundamental principals that are under serious attack in our country today. The Reagan administration, the Congress and the courts seem willing to restrict or abandom substantive and procedural protections the Constitution guarantees to those accused of crime. In this atmosphere, the Congress and courts are chipping away at the very important exclusionary rule which protects individuals from government misconduct, expanding the permissible scope of wiretaps and searches and seizures, limiting the right to counsel, narrowing the role of habeas corpus, and limiting the jurisdiction of federal courts.
Dershowitz's book is a compelling answer to those who thus seek to dilute the Bill of Rights. It is particularly persuasive because his arguments emanate from courtrooms where constitutional principles are transformed from inspiring words of life and death realities.
The Seigel case is a dramatic example. Dershowitz discovered to his shock and dismay his client was a police informant. He describes his agonizing decision to remain in the case, and their lists the illegal wiretaps, broken promises from the prosecutors, and the deceit much of which had been taped used by the government to coerce Seigal into becoming an informant able to help the police head off other JDL attacks. In the end, it was the government's own conduct that led to the dismissal of the indictment.
While acknowledging that there may have been a good reason for the government to exceed the Constitution in order to prevent violent crimes and to apprehend their perpetrators, Dershowitz argues convincingly that the compelling need to convict on the basis of illegally obtained evidence evaporates once the threat has passed. He points to the wise language of Justice Robert Jackson in the World War II Japanese relocation cases: When a government official violates the Constitution, "it is an incident," but when courts approve those actions, "that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image."
The JDL case illustrates another important theme running through The Best Defense. Dershowitz hated the JDL's tactics, and he did not want to take the case. But at the same time, he deeply believed that the defendants had a right to counsel. He faced the same dilemma in the defense of Rabbi Bernard Bergman, an owner of a chain of nursing homes in New York, who had been accused by the press of hastening the death of elderly nursing home patients, running ratinfested nursing homes, billing Medicare for dead patients, and laundering money for the Mafia. In the end, Bergman pleaded guilty to Medicare violations and offering a bribe. But Dershowitz came to believe that "Bergman had been tried and convicted by the press and by ambitious politicians of an assortment of crimes of which he was neither legallly nor factually guilty." This controversial case, and many others that Dershowitz discusses, shows why the defense of even such people unpopular and often guilty is in the highest tradition of our legal profession and critical to the protection of fundamental constitutional rights. Dershowitz's description of his efforts on behalf of Anatoly Shcharansky and other Jewish dissidents in the Soviet Union gives a revealing glimpse of a system without such protections.
At a time when we are reading more and more frequently about the banning of books, Dershowitz's descriptions of his obscenity and pornography cases contains a welcome and eloquent defense of the First Amendment; he repudiates those on both the right like the book-banning Moral Majority and on the left like the pornography banning radical feminists who seek to ban whatever they find offensive:
"It is no victory when the left succeeds in banning something conservative in reaction to the right's success in banning something liberal. Every time either the right or the left achieves this kind of 'victory,' the First Amendent is the loser. And when the First Amendment loses, we all lose the power to choose. To advocate censorship is to choose not to be able to choose at all."
To some readers, Dershowitz's efforts to strike down federal regulations banning nudity at the Cape Cod National Seashore may seem frivolous. Ironically, however, his defense that constitutionally protected personal liberty protects nudists from excessive regulation has a ring of familiarity today. But the argument is no longer used as Dershowitz used it. Rather, it has now been contorted and extended by the government to justify the deregulation of corporate polluters, the manufacture of unsafe products, and the operation of segregated academies.
The constitutionality of the death penalty, which more and more politicaians are seeking to revitalize, is presented in the case of the young Tison boys who helped their psychopathic father escape from an Arizona prison and who were with him when he murdered an innocent family on a deserted Arizona road. Even though the boys did not commit the murder, they were later sentenced to die in the gas chamber. This is one of the best chapters in the book. It describes a complex legal situation in the context of a very human story. It involves the author as a law clerk, professor and lawyer.
Dershowitz's description of the Tison case contains a fascinating glimpse into the inner workings of the Supreme Court. Many years earlier, while clerking for Justice Arthur Goldberg, Dershowitz helped prepare a memorandum arguing for the first time that the death sentence amounted to cruel and anusual punishment in violation of the Eighth Amendment. Ironically, the strongest opposition came from the Court's two most liberal members, Chief Justice Earl Warren, who worried that invalidating the death penalty would undermine the credibility of the Court, and Justice Black, who could find no support for banning the death penalty in his literal reading of the Bill of Rights.
But it was the Dershowitz memorandum and the resulting Goldberg dissent which started civil liberties lawyers thinking about challening the death penalty. Later, as a law professor, Dershowitz consulted with many of the lawyers who took on the challenge. And Dershowitz himself took the Tison case because it raised directly the question whether a person could be executed for a murder he did not actually commit.
The Best Defense is a good book. Complex legal principles are defined in clear and understandable terms. The discussion of cases combines the drama of the courtroom with the tragedies of the lives involved. The book recreates, far better than any Perry Mason novel, masterful cross-examinations: the painstaking planning, the first few uncertain moments, and the elation of success. It is high drama and good reading. And most important it is in a very real sense "the best defense" of some of the most fundamental and cherished protections of the U.S. Constitution.
At the same time, the book is sometimes verbose andd tedious. Dershowitz's explanation of his own roots is flat, and his description of Jewish life in Brooklyn should have been left to Chaim Potok.
More seriously, Dershowitz draws some conclusions about the defects in the criminal justice system which are so dogmatically stated that many lawyers and citizens as critical and knowledgeable as he would probably not agree. Even Dershowitz's own experiences do not support such assertions as: "Lying, distortion and other forms of intellectual dishonesty are endemic among judges"; "most judges have little interest in justice"; "the American system of justice has come to depend on the white lie"; "the American criminal justice system is corrupt to its core."
Dershowitz is fond of quoting Oliver Wendell Holmes, who said that "hard cases make bad law." The Best Defense proves that hard cases make equally bad reasons for condemning the entire legal system.
Even with these defects, the book is worth reading carefully. There are very real problems in the criminal justice system, and whether or not they are as serious as Dershowitz says, his views deserve thoughtful consideration. In his discussion of the obscenity cases, Dershowitz defines "advocacy" as "the communication of ideas." Advocacy is "directed at intellect" and "affords the listener an opportunity to reflect on it." While the reader may not agree with Dershowitz's position, the book is certainly the best example of true advocacy as he defines it.