Just Revenge

by Alan M. Dershowitz

  “I didn’t want to tell you until I was sure he could be here,” Emma said apologetically.

  “No problem, as long as you prepped the witness.”

  “I did the best I could, Daddy.”

  “May I continue to question the witness, Your Honor?” Abe asked Judge Tree.

  “Yes, but no more outbursts. The last one was understandable. The next one will be punished. This is still a trial. Do you understand?”

  “Yes, Your Honor, we understand,” Abe said, looking at the defendant. Then he turned to the witness and resumed his questioning.

  “How old were you when your mother died?”

  “Three years old.”

  “Do you remember her death?”

  “No. However, she wrote about the events leading up to her death in a letter to me.”

  “How did you get the letter?”

  “She pinned it to my jacket.”

  “I move the admission of the letter into evidence,” Abe said.

  “Objection, Your Honor,” Cox replied.

  “On what ground?”

  “Two grounds, Your Honor. First, it’s hearsay. Second, it hasn’t been authenticated.”

  “Mr. Ringel. The floor is yours.”

  “First, as to the hearsay objection. Although we acknowledge that it is hearsay, we will show that it was written in contemplation of death, and deathbed letters are an exception to the hearsay rule, because they carry indicia of truthfulness. People don’t lie on their deathbeds.”

  “He’s right, Mr. Cox,” Judge Tree said with a smile. “There is such an exception. We all learned about it in law school. This is the first time I’ve actually seen a deathbed letter. I will admit it, provided you can authenticate it.”

  “We can, Your Honor. The defendant recognizes his sister’s handwriting. Moreover, he has a picture with his sister’s handwriting on it,” Abe said, displaying the back of the old photograph. “We can show that the handwritings match.”

  “I will accept Mr. Ringel’s representations and withdraw my objections, Your Honor.”

  “Very generous of you, Mr. Cox. I was going to rule against you anyway. The letter is admitted. What language is it in?”

  “It’s in Yiddish. I will have the witness translate its contents.”

  “Any objection?”

  “None, Your Honor.”

  “You may proceed.”

  “Have you read the letter?”

  “Many hundreds of times. It was my only real connection to my mother—until today.” As the younger Max said these words, he looked at his uncle nervously.

  “Do you have that letter with you?”

  “I carry it with me all the time.”

  “Could you please read and translate the letter for the Court and the jury?”

  “Yes,” Max said, retrieving the letter from a leather case in his pocket.

  My dearest son Max,

  I will soon die and I must write this letter so that you understand who you are and how much I love you. I was sixteen when tragedy struck. Out of that tragedy you were born and my three years with you have been wonderful. I am so sorry that I am leaving you alone, without family, the way I was left alone. I hope and pray that the nuns who were so kind to me will take you in—as I have begged them to. You are a strong and smart boy and I know that you will make something of yourself.

  Your name is Max Menuchen. It is a great name. You are named after my brother, who was murdered in Ponary Woods. His murderer was Marcelus Prandus, who made me watch as he shot everyone else in my family. Everyone. He told me that he wanted the honor of personally carrying out the Fuhrer’s orders.

  As the younger Max read these words, Abe could see several jurors shaking their heads. This was the corroboration of the defendant’s account. Max continued to translate the letter.

  I have also asked the nuns not to show you this letter until you reach the age of thirteen. I must tell you the truth, painful as it may be to you. I was spared the fate of my family in the Ponary Woods only because I was a young girl. Marcelus Prandus raped me and then gave me to a Gestapo general. When he was finished with me, I was put on a train—half-alive—and sent to Auschwitz to service the German guards. A nun was assigned to examine me for disease and found me to be pregnant. She managed to sneak me out of Auschwitz to the Carmelite convent, where I gave birth to you. As soon as I saw you, I knew that Marcelus Prandus had to be your father. As you grew older, the resemblance grew even clearer. There could be no doubt that the very man who killed the entire Menuchen family, except for me, had fathered the last Menuchen. Every time I look at you, I am reminded of the man who killed my family. Yet every time I look at you, I love you more and more.

  As he read these words, the witness’s eyes locked on those of his half-brother, Paul Prandus. Emma had briefed the younger Max about his half-brother and where he always sat in the courtroom. Paul turned away almost reflexively. Then he turned back and looked directly at the man who was half Prandus and half Menuchen—the son of a murderer and his victim.

  As alike as the half-brothers appeared in superficial physical features, they seemed to have little else in common. Paul Prandus was inscrutable; his body was controlled, tight, rigid—hiding all emotion. The younger Max, in stark contrast, gazed openly at Paul, his curiosity obvious. When he spoke—even when he read and translated his mother’s letter—he gestured with his entire body, his face becoming a symphony of expressiveness. Every so often he flashed an ironic smile that reminded Abe of the older Max.

  Abe asked Max to complete his translation of the letter as the silent ballet of communication continued among the witness, his half-brother, and his uncle—joined together not only by a terrible history, but also by a common genetic bond.

  I worry that you will try to take revenge against your own biological father. I do not care about him, but I care deeply about you. I know that if you were to kill the man who gave you life, it would destroy you. Seek justice by becoming a Menuchen and by keeping the Menuchen seed alive. Your very life teaches renewal and forgiveness. I can face my death only by believing that you will live a long and good life, my darling son. Keep this letter with you as a reminder of the mother who loves you so dearly and who longs to remain next to you.

  With all my love forever, Mother.

  Every eye in the courtroom was damp as Abe questioned the witness about matters not covered in the letter.

  “Tell us what happened when your mother left the convent,” Abe asked gently.

  “My mother heard that some Jewish survivors had moved to a town called Kielce, not too far north of Auschwitz. We moved there. The nuns told me that she was relatively happy in Kielce, though she met no one she knew. She did not want to go back to Vilna, because the memories were so bad.”

  Although Cox could have objected to this testimony as hearsay, he allowed Max to answer, realizing that the jury would resent any interference with their learning the remainder of Sarah Chava’s tragic story.

  “How long did you and your mother live in Kielce?”

  “From March 1945 until July 1946.”

  “What happened in July 1946?”

  “The Kielce massacre,” Max said sharply.

  “What was the Kielce massacre?”

  “A large group of Polish nationalists, who resented the Jews returning to their homes in Kielce, went on a rampage.”

  “Against whom?”

  “Against the hundred or so Jews who had managed to survive the Nazis. There had been twenty-five thousand Jews living in Kielce before the war. Some of the survivors moved back with others, such as my mother, into homes other Jews had owned.”

  “So what happened?”

  “The Polish nationalists arranged for the police to confiscate the few weapons the Jews had gathered to defend themselves, and the next day an armed crowd murdered forty-two Jewish survivors and wounded dozens more. Many were women and children. This was after the Nazis had left,” Max said, shaking his head. “Now the Pol
es started to kill Jews.”

  “What happened to your mother?”

  “She took me, and we hid in a basement. That night,” Max continued in an agitated voice, “a group of teenage boys with knives found us and stabbed us both. My wound was not serious, but my mother was stabbed in the stomach.”

  “How long did she live?”

  “They took us to a makeshift hospital in the synagogue, where my mother remained alive for four days.” Tears formed in Max’s eyes as he went on. “Then her stomach became infected, and there were no medicines.”

  “Did she know she was going to die?”

  “Yes, she did. She wrote the letter so that I should always know my history—my family’s history. She pinned it to my jacket, along with a letter to the nuns at the convent.”

  “Why the nuns?”

  “All the Jews of Kielce were either dead or dying or had run away. My mother believed that all the surviving Jews, few as they were, would be killed by the Poles. The nuns were the only people she knew and trusted. She was nineteen when she died, without family or friends. She had only the nuns, who took me in until I turned thirteen.”

  “Then what happened?”

  “I moved to Krakow and got a job as an apprentice electrician. I also enrolled in English classes. In 1985, I joined Solidarity and became a local representative. I was sent to prison twice by the Communists for political activities. When Solidarity took over the government, I ran for a seat in the legislature. I lost after my opponent spray-painted Stars of David on my election posters. I never tried to hide the fact that I was Jewish, but my opponent made it sound as if I were hiding some terrible secret about my background.”

  “What did you do after you lost the election?”

  “I went back to being an electrician. I began to study Hebrew.”

  “Did you ever marry?”

  “No.”

  “Why?”

  “I do not want to have children.”

  “Why not?”

  “Because of all the cruelty, and who my father was. I do not want to bring more Pranduses into this world.” As he spoke these words, the younger Max looked at Paul Prandus. Paul squirmed in his seat but gave no other reaction. The older Max looked at his nephew with both disappointment and understanding.

  Abe could see tears in the eyes of several jurors as he completed his examination of the witness with the usual, “I have no further questions. The defense is prepared to rest.”

  “Any cross-examination?” Judge Tree asked, knowing the answer.

  “No, Your Honor,” Cox replied. “The prosecution rests as well.”

  Chapter 49

  EMMA’S IDEA

  “What a day, Daddy. How can we top this?” Emma said proudly as she walked her father out of the courtroom.

  “We’re going to have to, sweetie. Surprise witnesses like Max junior make the headlines, but I’m going to have to tie it all together for the jury in my closing argument. Bottom line is still that Max senior did what he did to Marcelus Prandus, and it wasn’t exactly by the law books.”

  “I don’t care about the law books. What Uncle Max did may technically be a crime, but it was morally just. We’ve got to win. Uncle Max can’t be allowed to die in prison. I couldn’t bear that.”

  Abe couldn’t resist tweaking his daughter. “An interesting distinction coming from the same law student who made me promise never to represent anyone who was guilty.”

  “Stop acting like a law professor who just caught his student in an inconsistency. Okay, you have my permission to represent any defendant who’s morally innocent, even if he’s legally guilty. Contract amended. Are you satisfied?”

  “You see, sweetie, it’s a bit more complex than my not representing guilty defendants. There is often a moral continuum. We both agree that Max is at the good end of that continuum. There are a lot of defendants somewhere in the middle.”

  “That’s bull, and you know it. Joe Campbell wasn’t even on your goddamned continuum. Yet you jumped through hoops to defend him until he almost killed your own daughter.”

  “Sweetie,” Abe said gently, reaching for his daughter’s hand, “you know that I thought Campbell might be innocent when I first took his case. You can’t just drop a client in the middle of a case when you begin to suspect he might be guilty.”

  “That’s why I could never defend anyone who might be guilty. I couldn’t deal with getting a guilty defendant off.”

  “Except, of course, if he were morally innocent in your unbiased opinion—like Max.”

  “Yeah, like Max. How can anybody care about what happened to that monster Prandus after what he did to the Menuchen family and especially to Sarah Chava?”

  “Cox seems to care. The judge seems to care. The jurors seem to care. The law is supposed to care about even the most despicable victim.”

  “That’s why the law is an ass. How can the law convict some poor African American drug dealer when mass murderers like Marcelus Prandus were never even prosecuted? If I were a black juror, I don’t know if I could vote to convict a black drug dealer.”

  “That would be racist, Emma.”

  “Well, what do you think it was that led to an all-white jury in Alabama acquitting Thomas Coleman thirty years ago—even though he admitted killing a civil rights worker in cold blood? We studied that case in legal history.”

  “Why do you think they call it history, sweetie? That was a long time ago.”

  “Our professor showed us Coleman’s recent obituary from the Times. He lived to be eighty-six years old, he played dominoes at the courthouse every day with his friends, and died surrounded by his family. Some justice!”

  “I am afraid that perfect injustice is a lot more common than perfect justice.” Abe sighed.

  “I’d gladly settle for imperfect justice, Daddy. But I don’t even see that. It’s so damn hypocritical for people to posture about ‘law and order’ and ‘making the punishment fit the crime’ when thousands of the world’s worst criminals remain free. Justice is a joke, Daddy, and not a very funny one.”

  “It’s not a joke if you’re the victim, sweetie. Haskell once gave me a book that described Nazi murderers—the killers of his family and others like them who were leading guilt-free and respected lives. Haskell went through two phases in dealing with this troubling issue. At first he worked hard to defend even the most vicious criminals, feeling that no matter how horrendous their crimes, they did not compare with what others had gotten away with. Then he turned his passion to seeing that all Nazi criminals—even old ones—were punished.”

  “I can imagine myself prosecuting Nazis, but I can’t imagine myself working to put some common criminal in jail while so many Nazi killers remain free.”

  “Remember how you felt when Joe Campbell went off to jail?”

  “That was different. He tried to kill me.”

  “Some people might think, What’s the difference if one Joe Campbell gets away with it, when so many Nazi killers remain free? We can’t let the Nazis make a joke out of our legal system.”

  “I guess you’re right.” Emma sighed. “It’s so damn frustrating, watching Max suffer in jail because he did what the legal system couldn’t do. The legal system broke its contract with Max. It didn’t protect his family, and it didn’t punish those who killed them. Now it’s demanding its pound of flesh. It isn’t fair.”

  “Aha,” Abe said.

  “Did I give you an ‘aha,’ Daddy?”

  Aha had become a code word in the Ringel family for the style Abe had developed over the years of asking lots of rhetorical questions during his argument. It got the jurors to interact with him. He strongly believed that the most effective advocacy occurred not when the lawyer shoved an argument down the throat of a juror, but rather when the lawyer allowed the juror to come up with the argument—or at least think he had. It gave the juror a greater stake in the argument. Abe called this the “aha theory of advocacy,” after the joke Haskell had once told him about the J
ewish man who had ordered chicken soup in the same restaurant every night for years. This time the waiter noticed the customer wasn’t eating it, so he asked him, “Is it too hot?” No answer. “Too cold?” No answer. “Is there a fly in it?” No answer. Finally, in frustration, the waiter said, “I’m gonna taste it myself and see what’s wrong.” The waiter comes over to taste it, but there is no spoon. The customer looks at the waiter and says, “Aha!”

  Abe believed that jurors were like the waiter. They had to discover for themselves what was missing, and then you could say, “Aha!”

  “What’s the ‘aha’ in what I said, Daddy?” Emma asked.

  “You’re just gonna have to listen to my argument,” Abe replied. “You’ll see.”

  Chapter 50

  CLOSING ARGUMENT: THE PROSECUTION

  It was now time for closing arguments—when lawyers strut their stuff and orate. This was it—the final words the jury would hear from the lawyers before they deliberated.

  Cox wheeled his chair so it faced the jury.

  Again he picked out one juror—this time it was Sandy Kelley, who never lost her smile, even when the testimony was gruesome.

  “Ladies and gentlemen of the jury, you have heard a lot of emotional testimony. There was a surprise witness. Even I had to hold back tears when the defendant’s nephew testified. Do not allow emotions to get in the way of your responsibility, which is to apply the cold law to the hard facts. Cutting through all the emotions, this case is open and shut. You could ignore everything presented by the prosecution and just focus on the testimony presented by the defense—indeed, by the defendant himself—and it would still be an open-and-shut case. Max Menuchen confessed to you. He admitted that he kidnapped the victim, tied him to a chair, and made him watch videos of his entire family being killed. He then assisted the victim in taking his own life. All the elements of the crime of kidnapping and felony murder are admitted by the defendant himself. Believe him. He is telling the truth. If you do believe him, you have no choice but to convict him. The law demands no less. You may understand why the defendant committed these crimes—I think I do after listening to him and his nephew—but to understand is not to forgive. If you were to find the defendant’s criminal acts to be justified, you would be sending a terrible message of lawlessness—an invitation to every aggrieved citizen to take the law into his or her own hands.”