Just Revenge

by Alan M. Dershowitz

  “I have no objections to this juror,” Abe declared.

  “Nor do I,” said a satisfied Erskine Cox.

  The next potential juror was a man named Larry Kane, who had served in the military during the Vietnam War and was now an insurance salesman.

  “I rank him in the middle—a four or five,” Pullman whispered.

  “Have you ever felt a desire to take revenge on someone?” Abe asked Kane.

  “Sure, hasn’t everybody?”

  “Have you ever acted on it?”

  “I guess. In small ways.”

  “Such as?”

  “Let me think. . . . I’ve screwed some competitors out of commissions, after they did that to me.”

  “Anything worse?”

  “Not that I can think of.”

  “On the basis of your experience as a military policeman, do you believe that most criminal defendants did what they are charged with?”

  “I don’t believe it. I know it.”

  “If at the end of this case, after hearing all the evidence, you conclude that the defendant is probably guilty, how will you vote?”

  “Guilty.”

  “Your Honor, I move to challenge this juror for cause.”

  “On what ground?” barked Judge Tree.

  “On the ground that he would vote for conviction on the basis of a conclusion that the defendant is probably guilty.”

  “That was a trick question, Mr. Ringel. He will apply the correct standard after I instruct him on what it is. Denied.”

  “Okay. I use my first peremptory challenge on Mr. Kane.” Abe Ringel had a policy of using a peremptory on a juror he challenged unsuccessfully for cause. No reason to have a resentful juror sitting around waiting to get even with the lawyer for trying to get rid of him.

  The next potential juror was a twenty-eight-year-old woman named Marsha Goldberg, who worked as an advertising executive at a local TV station. Pullman ranked her a six. Abe asked her a few routine questions and accepted her.

  Erskine Cox began his questions:

  “Have you studied the Holocaust in school?”

  “Just touched on it.”

  “Were any of your relatives victims?”

  “Not that I know of.”

  “Where does your family come from originally?”

  “Pittsburgh.”

  “No. I mean before they came to America.”

  “I don’t know. Somewhere in Eastern Europe. Poland. Russia.”

  “Peremptory.”

  So Ms. Goldberg was dismissed.

  After two more jurors—both young women—were accepted, Cox used another peremptory challenge on a middle-aged man named Carl Cohen.

  The instant Cox said the word peremptory, Judge Tree rose to his full height, banged his gavel, and said, “Chambers—now.”

  As soon as the lawyers entered the chambers, Judge Tree was all over Cox.

  “Don’t make me embarrass you in front of the jurors, Mr. Cox. I see what you’re trying to do. Have you read the Bumpers case recently?”

  “Yes, Your Honor. It says that peremptory challenges may not be used racially.”

  “Well, you appear to be using them religiously, and I won’t tolerate it.”

  “Your Honor, the victims of the Holocaust were Jews, and Jews have a particular reason for hating the victim in the case, Marcelus Prandus.”

  “And blacks hate racism, and women hate sexism, but they can all be fair jurors. So can Jews. I’ll give you this one. But if you use another peremptory against a Jewish juror, I will see a pattern. Do you understand?”

  Abe remained silent. He could have tried to save Juror Cohen, but Pullman had ranked him a three. Abe himself was ambivalent about Jewish jurors, worried that they might lean over backward to show that they would never resort to vengeance.

  Everyone loved the next juror, a woman named Sandy Kelley. She seemed fair, friendly, and eager to please.

  Several other jurors quickly passed muster as well.

  Near the end of the day, eleven jurors had been seated. Each side had used five of their six peremptories. The next potential juror—perhaps the final one—was a seventy-six-year-old woman named Patricia McGinnity, who had been a housewife and now—since her husband had died several years ago—spent her days helping out around the church. Pullman had ranked her a three. “Too religious, too conservative, too set in her ways.” Cox appeared to like her.

  “Use your last peremptory, Abe. She’s the Virgin Mary. We don’t need her.”

  “Who knows what we get if we bump her. We could get Adolf Hitler as our next juror—without any peremptories left.”

  “Hitler you could challenge for cause. Even Tree would give you that one,” Pullman whispered.

  “I have a good feeling about this old lady,” Abe said. “Let me ask her a few questions.”

  “You’re nuts,” Pullman replied.

  “Mrs. McGinnity, you don’t approve of suicide, do you?”

  “No, I don’t. People shouldn’t play God.”

  “Do you believe it’s ever right to take the law into one’s own hands?”

  “Objection, Your Honor,” Cox said. “What she believes is irrelevant. The law doesn’t believe in it, and if she is to serve on the jury, she must obey the law.”

  “Nice speech, Mr. Cox,” Judge Tree said with a smile. “I’m sure Mrs. McGinnity got the message. Overruled. You may answer.”

  “If governments deny us basic rights, such as practicing our religion, we have the natural right to resist. We may have to pay a price for it, at least here on earth.”

  “Strike her. Strike her,” Pullman whispered furiously. Abe looked at Judge Tree and said, “We have no problem with Mrs. McGinnity.” Neither did Cox. The jury was seated. The trial was ready to begin.

  Court TV made a motion to televise the trial, and both sides agreed. Max wanted the trial to serve as an educational vehicle about the Holocaust. The prosecution wanted it to serve as an educational vehicle about the dangers of taking the law into one’s own hands. And Judge Tree, who was on the Massachusetts State Judicial Commission, which was evaluating the impact of televising trials on the criminal justice system, saw this case as a perfect experiment. He would prove that a high-profile and emotional trial could be televised without becoming a circus. The entire nation would be watching Commonwealth of Massachusetts versus Max Menuchen.

  Part VII

  Justice on Trial

  Chapter 38

  THE PROSECUTION’S CASE

  “Mr. Cox. Try your case,” announced Judge Tree.

  “Ladies and gentlemen of the jury,” Cox began, moving in his wheelchair closer to the jury box, “this is a classic case of felony murder. We will prove that the defendant, Max Menuchen, with the help of an accomplice, hatched a plan to kidnap an old man and torture him psychologically. As a result of this torture, the old man took his own life, while in a distraught state deliberately induced by the defendant.”

  Cox moved his wheelchair around the courtroom as if he was pacing. Then he brought it to rest directly in front of Patricia McGinnity, the old woman who had been selected as the last juror. Cox looked directly into her eyes, eliciting a warm smile from her pale lips. He continued to talk—to Mrs. McGinnity.

  “This case is analogous to one decided nearly seventy-five years ago. In that case, the defendant broke into the third-story bedroom of a sixteen-year-old girl, intending to rape her. The girl jumped out the window and was killed in the fall. In that case, the judge charged the jury that if the act of jumping was directly caused by the attempted rape, the defendant was guilty of felony murder, even if he never intended for the girl to die.”

  “Objection, Your Honor.” Abe was on his feet, arguing, “That was an underage girl. This was a mature man. That was three-quarters of a century ago, when sexual mores were different. A rape victim was considered to be ‘damaged goods.’ Today—”

  “Overruled. The jury can figure out the differences. Proceed, Mr. Cox.�
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  “In this case, we will prove that this defendant intended for his victim to die. Indeed, the entire plan would have failed if the victim did not die before learning the truth. It was a cruel and bizarre plan, and tragically, it worked exactly as intended.”

  Mrs. McGinnity shook her head up and down, signaling apparent agreement with Cox’s analogy—or was it merely politeness? “We shudda used our last peremptory,” Pullman whispered.

  Abe responded reassuringly, “I bet she smiles at me, too.”

  Cox continued, positioning his wheelchair in front of the poker-faced Muriel Baker.

  “No crime is ever committed without a motive. The defense may try to suggest a good motive for these bad and criminal acts. But the judge will tell you that good motive—and we by no means concede that the motive here was good—is not an excuse or a defense for crime. Your job is not to figure out why the defendant did what he was accused of doing, but only to decide whether he did what he was accused of doing. We will prove that beyond any reasonable doubt. When all the evidence is in, we will ask you to convict the defendant of kidnapping and felony murder.”

  “Mr. Ringel, do you have an opening statement at this time?” asked Judge Tree.

  “Beyond reminding the jury to keep an open mind until all the evidence is in—which I know you will tell them to do—I reserve my opening statement until after the prosecution has presented its case.”

  “Fine. I do remind the members of the jury to keep an open mind, to adhere to the presumption of innocence, and to listen to all the evidence before deciding anything. Now we are ready for the first witness.”

  “The prosecution calls Danielle Grant.”

  From the back of the courtroom, Justin Aldrich—who was representing Danielle Grant—shouted, “Objection, objection!”

  “Chambers,” said Judge Tree, pounding the gavel.

  When they reached the judge’s chambers, Ringel, Aldrich, and Cox were already arguing.

  “Talk to me,” Judge Tree demanded, “not to each other and not at each other. What’s the basis for your objection, Mr. Aldrich?”

  “My client is a co-defendant, Your Honor,” Aldrich insisted. “The prosecution can’t call her. She has a privilege against self-incrimination, and she’s darn well going to exercise it.”

  At the mention of “privilege,” Cox pulled a document out of his pocket and put it in front of Judge Tree.

  “Use immunity, Your Honor. It trumps the privilege. She has to testify, and we can’t use her answers against her at her trial.”

  “They can’t do that, Your Honor,” Aldrich said imploringly. “How can we ever be sure they won’t use her answers?”

  “Because the prosecutor in her case won’t find out what she said in this trial,” Cox said.

  “You’re going to put him behind a Chinese wall?” Judge Tree asked, invoking the metaphor used by lawyers.

  “Exactly.”

  “But you can’t build a Chinese wall around a high-profile case like this one. Everyone in America will be watching it on TV and reading about it,” Aldrich insisted.

  “Precisely,” Cox said smugly.

  “Wipe that smile off your face, Mr. Cox, and tell us why you’re so pleased with yourself. Aldrich here seems to have a point.”

  “We agree, Your Honor, that everyone in America will know what Ms. Grant testified to. That’s why we sent her prosecutor to China—literally. He’s investigating a drug import case in northern China, and he’s literally behind the Chinese Wall.”

  “Pretty good reason for being smug, Cox. Now it’s your turn, Aldrich. What’s the problem if the next prosecutor is ten thousand miles away?”

  “The jury impaneled in the Grant case will know about her testimony,” Aldrich sputtered.

  Judge Tree shook his head in disagreement. “We will see to it that you strike any such juror, Mr. Aldrich. You know as well as I do that we can always find twelve jurors that read only the sports pages.”

  “But we can never be sure that some of my client’s compelled testimony won’t leak through the wall,” Aldrich complained.

  “The burden will be on the prosecution, and it is a heavy one,” Judge Tree said, looking directly at Cox.

  “We understand our burden,” Cox replied. “And we realize that we may get ‘Northed.’ ” “Northed” referred to the Oliver North case, in which the court of appeals reversed Colonel North’s conviction on the ground that some of the testimony he had given to Congress under a grant of use immunity might have seeped through the Chinese wall erected in that case; North could not be retried because of this possibility, and he went free.

  “As long as you understand the risks and are willing to incur them, I rule that Danielle Grant may be compelled to testify against the defendant, Max Menuchen,” the judge said. “Let’s get back to the courtroom and get Ms. Grant on the stand.”

  Danielle Grant walked slowly to the witness stand, inspected the Bible she was handed, raised her right hand, and swore to tell the truth.

  “Ms. Grant, what did you do on the early evening of May twenty-ninth, this past year?”

  Danielle looked Cox straight in the eye and responded, “I helped Professor Max Menuchen kidnap Marcelus Prandus. We did it together, as part of a plan that I designed.”

  As soon as Cox heard this answer, he knew he had fallen into a trap.

  “I move to declare Ms. Grant a hostile witness, Your Honor,” Cox demanded.

  “On what ground, Mr. Cox?” said Judge Tree.

  “She’s taking an immunity bath.” Her lawyer had told her to answer Cox’s questions in the most self-incriminating manner, so as to broaden the scope of her immunity.

  “That may be true, but she’s helping you in this case, Mr. Cox. You made your bed, now you have to lie in it. Denied.”

  Cox continued to question Danielle, trying to ask narrow questions.

  “Where did you take Marcelus Prandus?”

  “We took him to an abandoned hunting shack in the Berkshires.”

  “What did you do to Prandus when you got him to the shack?”

  “We tied him to a chair and made him watch videos.”

  “What did the videotapes show?”

  “They showed each of Marcelus Prandus’s children and grandchildren being killed.”

  Several jurors gasped.

  “As far as you could tell, did Marcelus Prandus believe that all of his children and grandchildren had, in fact, been killed?”

  As he asked the question, Cox looked to see whether Ringel would object. There were several bases on which an objection could have been raised. Ringel remained silent. This gave Cox a clue to his likely strategy and defense. It suggested that the defense might not be an “I didn’t do it,” factual claim.

  Danielle responded forthrightly, “I was there when Max played the first video. It was apparent from his actions that Marcelus Prandus believed his grandson, Marc, had been murdered. He screamed and cried uncontrollably. Nobody could have faked those feelings.”

  “Where were you when the other videos were played?”

  “I chose not to be there so that Max could face Prandus alone.”

  “Was it Max Menuchen’s plan that Marcelus Prandus would believe that his children and grandchildren had been murdered?”

  “Yes, that was our plan.”

  “Was it also your plan that he would continue to believe that they had been murdered until he died?”

  “Yes, if he suspected that they were not dead at any time before his own death, the plan would have backfired.”

  “To your knowledge, did he ever suspect that his children and grandchildren had not actually been killed at any time before his death?”

  “No, he did not.”

  “Was it part of your plan for Marcelus Prandus to die during the kidnapping?”

  “Yes, it was.”

  “Did you plan to kill him?”

  “I was prepared to kill him if he did not die from his cancer or kill himself, b
ut I don’t believe Max Menuchen would have killed him.”

  This answer caught Cox off guard. “Objection, Your Honor,” Cox said, his voice rising with frustration.

  Abe smiled and stood up. “He can’t object to the truthful answer given by his witness to his question.”

  “Denied,” ruled the judge.

  Now Cox had to improvise, but he was not too worried, because legally it really did not matter whether Max intended to kill Prandus, as long as Prandus died as a result of the kidnapping and while that felony was still in process.

  “Did you have to kill him?” Cox continued.

  “No.”

  “Why not?”

  “Because he killed himself.”

  “If you know, why did he kill himself?” Again Cox waited for the anticipated objection from Ringel. Again Ringel remained silent.

  “He killed himself because he believed that we had killed his entire family and that we did it in revenge for what he had done to Max’s family fifty years earlier. It’s right in the note you subpoenaed from us.”

  “And it was you and Max Menuchen who caused him to believe that you killed his family, was it not?”

  Again no objection.

  “Yes, that was our plan.”

  “And the plan worked?”

  “Yes.”

  “And as a result of the plan, Prandus took his own life, believing that his entire family had been killed and that he was somehow responsible for their deaths?”

  “Yes.”

  “Now, I’m going to ask you a question, and in order to avoid your giving hearsay testimony, I would like you to try to answer yes or no, without any elaboration, if you can.”

  “Okay.”

  “When you previously testified that Mr. Prandus believed that his family had been murdered in revenge for what he had done to Mr. Menuchen’s family fifty years earlier, were you referring to Mr. Prandus’s service as an auxiliary policeman in Lithuania during the Nazi occupation?”

  “Yes, I was.”

  “Just one more question, Ms. Grant. Were you given use immunity if you testified truthfully?”