Taking the Stand
Page 1
ALSO BY ALAN DERSHOWITZ
The Trials of Zion
The Case for Moral Clarity: Israel, Hamas and Gaza
The Case Against Israel’s Enemies: Exposing Jimmy Carter and Others Who Stand in the Way of Peace
Is There a Right to Remain Silent? Coercive Interrogation and the Fifth Amendment after 9/11
Finding Jefferson: A Lost Letter, a Remarkable Discovery, and the First Amendment in an Age of Terrorism
Blasphemy: How the Religious Right Is Hijacking Our Declaration of Independence
Preemption: A Knife That Cuts Both Ways
What Israel Means to Me: By 80 Prominent Writers, Performers, Scholars, Politicians, and Journalists
Rights from Wrongs: A Secular Theory of the Origins of Rights
America on Trial: Inside the Legal Battles That Transformed Our Nation
The Case for Peace: How the Arab-Israeli Conflict Can Be Resolved
The Case for Israel
America Declares Independence
Why Terrorism Works: Understanding the Threat, Responding to the Challenge
Shouting Fire: Civil Liberties in a Turbulent Age
Letters to a Young Lawyer
Supreme Injustice: How the High Court Hijacked Election 2000
Genesis of Justice: Ten Stories of Biblical Injustice That Led to the Ten Commandments and Modern Law
Just Revenge
Sexual McCarthyism: Clinton, Starr, and the Emerging Constitutional Crisis
The Vanishing American Jew: In Search of Jewish Identity for the Next Century
Reasonable Doubts: The Criminal Justice System and the O.J. Simpson Case
The Abuse Excuse: And Other Cop-Outs, Sob Stories, and Evasions of Responsibility
The Advocate’s Devil
Contrary to Popular Opinion
Chutzpah
Taking Liberties: A Decade of Hard Cases, Bad Laws, and Bum Raps
Reversal of Fortune: Inside the von Bülow Case
The Best Defense
Criminal Law: Theory and Process (with Joseph Goldstein and Richard Schwartz)
Psychoanalysis, Psychiatry and Law (with Joseph Goldstein and Jay Katz)
Copyright © 2013 by Alan Dershowitz
All rights reserved.
Published in the United States by Crown Publishers, an imprint of the Crown Publishing Group, a division of Random House LLC, a Penguin Random House Company, New York.
www.crownpublishing.com
CROWN and the Crown colophon are registered trademarks of Random House LLC.
Library of Congress Cataloging-in-Publication Data
Dershowitz, Alan M.
Taking the stand : an autobiography / by Alan Dershowitz.—First edition.
pages cm.
1. Dershowitz, Alan M. 2. Lawyers—United States—Biography. 3. Jewish lawyers—United States—Biography. 4. Law teachers—United States—Biography. 5. Freedom of speech—United States—Cases. 6. Capital punishment—United States—Cases. I. Title.
KF373.D46A3 2013
340.092—dc23
[B] 2013022762
ISBN 978-0-307-71927-0
eISBN: 978-0-307-71929-4
Jacket design by Eric White
Jacket photography: Michael Weschler
v3.1
This book is lovingly dedicated to my family—
past, present, and future.
L’dor v’dor.
CONTENTS
Cover
Other Books by This Author
Title Page
Copyright
Dedication
Introduction
A Life of Continuous Change
PART I
FROM BROOKLYN TO CAMBRIDGE
With Stops in New Haven and Washington
1 Born and Religiously Educated in Brooklyn
Williamsburg and Boro Park
2 My Secular Education
Brooklyn and Yale
3 My Clerkships
Judge Bazelon and Justice Goldberg
4 Beginning My Life as an Academic
Harvard Law School
PART II
THE CHANGING SOUND OF FREEDOM OF SPEECH
From the Pentagon Papers to WikiLeaks
5 The Evolution of the First Amendment
New Meanings for Cherished Words
6 Direct and Vicarious “Offensiveness” of Obscenity
I Am Curious (Yellow) and Deep Throat
7 Disclosure of Secrets
The Pentagon Papers and Julian Assange
8 Expressions That Incite Violence and Disrupt Speakers
Bruce Franklin and the Muslim Student Association
9 The Right to Falsify History and Science
Holocaust Denial, Space Aliens, and Academic Freedom
10 Defamation and Privacy
“He That Filches from Me My Good Name”
11 Speech That “Supports” Terrorist Groups
The MEK Case
12 Life Intrudes on Law
Illness and Other Close Calls
Photo Insert
PART III
CRIMINAL JUSTICE
From Sherlock Holmes to CSI
13 “Death Is Different”
Challenging Capital Punishment
14 The Death Penalty for Those Who Don’t Kill
Ricky and Raymond Tison
15 Using Science, Law, Logic, and Experience to Disprove Murder
Von Bülow, Simpson, Sybers, Murphy, and MacDonald
16 Death, Politics, Religion, and International Intrigue
Sharansky, Kennedy, and the Former President of the Ukraine
17 Death Cases from the Classroom to the Courtroom and from the Courtroom to the Classroom
Shooting a Corpse and Crashing a Helicopter
18 The Changing Politics of Rape
Mike Tyson, DSK, and Student Protestors
19 The Changing Impact of the Media on the Law
Bill Clinton and Woody Allen
PART IV
THE NEVER-ENDING QUEST FOR EQUALITY AND JUSTICE
20 The Changing Face of Race
From Color Blindness to Race-Specific Remedies
21 The Crumbling Wall Between Church and State
Attempts to Christianize America
22 From Human Rights to Human Wrongs
How the Hard Left Hijacked the Human Rights Agenda
Conclusion
Closing Argument
Acknowledgments
Notes
INTRODUCTION
A Life of Continuous Change
An autobiographer is like a defendant who takes the stand. We all have the right to remain silent, in life and in law. But if one elects to bear witness, he must tell the truth, the whole truth, and nothing but the truth, subject only to limited privileges, such as between a lawyer and a client, or a husband and a wife.
What Tocqueville observed two centuries ago—that in our country, great issues find their way into courts1—is even truer today. Accordingly, my autobiography will be a history of the last half century as seen through the eyes of a lawyer privileged to have participated in some of the most intriguing and important cases and controversies of our era. It is also an account of one man’s intellectual and ideological development during a dramatic period of world, American, and Jewish history, enriched with anecdotes and behind-the-scenes stories from my life and the lives of those I have encountered.
The law has changed considerably over the past half century. I have not only observed and written about these changes, I have helped to bring some about through litigation, writing, and teaching. This book presents an account of these changes and of my participation in the cases that precipitated them. My commitment to full disclosure requires that I not hid
e behind the distorting shield of feigned humility—calculated to preempt criticism—that denies the reader an accurate picture of the impact the author has had on events.2 (One of my favorite jokes is about feigned humility: The pompous rabbi prostrates himself on Yom Kippur, shouting to God, “I am nothing before you.” The equally pompous cantor emulates the rabbi, shouting even louder, “I am less than nothing before you.” The lowly sexton (“shammes”), seeing the rabbi and the cantor engaging in such self-flagellation, also gets down on his knees and screams, “I too am nothing.” The rabbi looks contemptuously at the sexton and whispers to the cantor, “Look who’s claiming to be nothing.”) Nor will I rewrite my past to conform to present notions of political correctness. Instead, I will try to offer an honest assessment of the roles I have played—for better or worse—in legal developments.
You may have witnessed my public persona—confrontational, unapologetic, brash, tough, argumentative, and uncompromising. These characteristics have provoked strong reactions, both positive and negative, rarely neutral. Yet those who know me—family, friends, and colleagues—hardly recognize the “character” I come across as on TV. In my personal life, I shy away from confrontation and am something of a pushover. My son Elon says that when people bring me up in conversation, he can instantly tell whether they know me from TV or from personal interactions—whether they know what he calls “the Dersh Character” or “the real Alan.”
This sharp dichotomy between my public and private persona was brought home to me vividly when a motion picture, Reversal of Fortune,3 was made about the Claus von Bülow case. I was played by Tony Award–winning actor Ron Silver.
The opening scene had my character playing an energetic basketball game with himself—true enough. When he’s interrupted by a phone call giving him the news that he has lost a case involving two brothers on death row,4 he smashes the phone on the pavement. When I complained to my son, who had coproduced the film, that I don’t throw phones, my son responded: “Dad, the person on the screen isn’t you; it’s ‘the Dersh Character.’ ” He explained that characters have to “establish themselves” early in a film, and that this establishing was intended to convey my passion for the rights of criminal defendants. “If we had several hours, we could have recounted your involvement in many other cases, but we had about a minute; hence the smashed phone.”
“That scene doesn’t show passion,” I said. “It shows a temper tantrum.” My son explained that a character has to have faults, so that he can “overcome” them. “The viewing audience has to see you grow.”
In the film, I’m portrayed as a person whose passions are reserved exclusively for his professional life. I hope that’s not me, although I have to acknowledge that people who know me only professionally assume that I have nothing left for those I love. They see me busily at work in different jobs—professor, author, litigator, lecturer, and television commentator—and they assume that either I never sleep or that there are several of me. But the fact is that I reserve a lot of love, loyalty, and friendship for family and people close to me. I even make time for having fun—ball games, concerts, walks on the beach, parties, jokes, and schmoozing.
In this book, I intend to explore both sides of my life, the interaction between them, and how they are both the products of my early upbringing and lifelong experiences. So if you think you know me from my public appearances, you may be in for a surprise.
Although this autobiography is my first attempt to explore my life in full, I have written books that touch on earlier aspects of my public life. The Best Defense5 dealt with my first cases. Reversal of Fortune6 and Reasonable Doubts7 each dealt with one specific case (von Bülow and O. J. Simpson). Chutzpah8 covered my Jewish causes. I will try not to repeat what I wrote in those books.9 This more ambitious effort seeks to place my entire professional life into the broader context of how the law has changed over the past half century and how my private life prepared me to play a role in these changes.
I bring to this task a strong and dynamic worldview, shaped by my experiences. In looking back, I am inevitably peering through the prism of the ideology that has provided a compass for my actions.
I believe that ideology is biography. Where we stand (and who and what we can’t stand) is the result of where we sat, whom we sat next to, what we sat through, and how we reacted to our experiences. The philosopher Descartes, who famously said, “I think therefore I am,”10 got it backwards. I am—I was, I will be—therefore I think what I think.11 It is our interactions—with other human beings, with nature, with nurture, with love, with hate, with pleasure, with pain, with our own limitations and mortality—that shape our worldviews. It is also our genetic endowment—our temperament, our energy, our intelligence.
And our luck! An old Yiddish saying puts it succinctly: “Man plans, God laughs.”
Many of the most important decisions that impact a person’s life are made by others and are beyond his control. Probably the most significant decisions affecting my life were made by my great-grandparents and grandparents: the decision to leave the shtetels of Poland and move to New York. Had they remained in Europe, as some of my relatives did, I would probably not have survived the Holocaust, since I was three years old when the systematic genocide began.12 Nearly all my relatives who remained in Poland were murdered by the Nazis. That may be why Jews of my generation are so influenced by the Holocaust. There but for the grace of God, and the forethought of our grandparents, go we.13
My life has been very different from the lives of my grandparents and parents, who lived insular lives in the Jewish shtetels of Galicia, Poland, the Lower East Side of Manhattan, and the Williamsburg, Crown Heights, and Boro Park Orthodox Jewish neighborhoods of Brooklyn. They had little formal education and rarely traveled beyond their routes to and from work.14 My grandparents never flew on airplanes despite living into the 1970s and ’80s. My parents rarely attended concerts, the Broadway theater, or dance recitals. They owned no art, few books, and no classical records. They didn’t visit museums or galleries. Their exposure to culture was limited to things Jewish—cantorial recitations, Yiddish theater, lectures by Orthodox rabbis, Jewish museums, Catskill Mountain and Miami Beach entertainment.
My adult life has been different. I travel the globe, meet with world leaders, own art, am involved in music, theater, and other forms of culture, and lead a secular life (though I too enjoy cantorial music, “borscht belt” humor, Miami Beach, and a good pastrami sandwich—which you can’t get in Miami Beach).
Yet I am their son and grandson. Although my life has taken a different course, I could not begin to explain who I am and where I am heading without exploring my background and heritage. It is this history that helped to form me, caused me to react against parts of it, and—most important—gave me the tools necessary to choose which aspects of my traditions to accept and which to reject.
I was born to a family with strong views on religion, morality, politics, and community service. Our neighborhood was tightly knit. Everyone knew his place. Status was important, as was yichus (the Yiddish term for ancestry). But I grew up at a time of change, growth, excitement, and opportunity.
Despite the reality of anti-Jewish discrimination—in college admission, employment, residency, and social clubs—my generation believed there were no limits to what we could accomplish. If Jackie Robinson could play second base for the Brooklyn Dodgers, we could do anything. Maybe that was the reason so many successful people grew up in Brooklyn in the postwar period. (In 1971, I was selected from among forty young scholars for a distinguished fellowship. When the fellows met in Palo Alto, California, we discovered close to half the group had Brooklyn roots!) We were the breakout generation, standing on the broad shoulders and backbreaking work of our immigrant grandparents and working-class parents.15 We are not smarter than our forebears, only luckier to have been born at a time of greater opportunities to be educated, to choose careers, and to thrive in an expanding economy. As a bumper sticker I saw near
the Harvard Business School put it: DON’T CONFUSE BRAINS WITH A BULL MARKET. My parents came of age during the Depression. I came of age during a bull market.
I cannot explain my worldview without describing those on whose shoulders I stand. So I will begin at the beginning, with my earliest memories.
But formative experiences do not, of course, end at childhood or adolescence. Learning never stops, at least for those with open minds and hearts. A quip attributed to Winston Churchill put it this way: “Show me a young conservative and I’ll show you someone with no heart. Show me an old liberal and I’ll show you someone with no brain.”16 It is true that some young liberals become less idealistic with age, economic security, and family responsibilities. But it is also true that some young conservatives become more liberal as they seek common ground with their children. Others remain true to their earlier worldviews, depending on the lives they have lived.
I have been fortunate to live an ever-changing life. Although my views on particular issues have been modified, my basic commitment to liberal values has remained constant, because of my strong upbringing and because I have spent my life among students, who bring to the classroom the views of their contemporaries. An ancient Chinese curse says, “May you live in interesting times.” I have been blessed with living an interesting, if often controversial, life.
As an adolescent, I was involved in causes such as justice for the Rosenbergs, abolition of the death penalty, and the end of McCarthyism. In college and law school I became passionate about civil rights, civil liberties, and politics.
As a law clerk, during one of the most dramatic periods of our judicial history, I worked on some of the most important constitutional cases of the Warren court, heard the “I Have a Dream” speech of Martin Luther King, was close to the Cuban Missile Crisis, and partook of events following the assassination of John F. Kennedy.
As a young lawyer, I played a role in the Pentagon Papers case, the forced resignation of Richard Nixon, and the antiwar prosecutions of Dr. Spock, the Chicago Seven, the Weather Underground, and Patricia Hearst. I litigated the I Am Curious (Yellow) censorship prosecution, the Deep Throat case, and the Hair case. I consulted on the Chappaquiddick investigation of Ted Kennedy, the attempted deportation of John Lennon, and the draft case against Muhammad Ali. I helped to formulate the strategy designed to strike down the death penalty as unconstitutional, and I litigated all types of cases that broadened freedom of expression under the First Amendment and the right to a zealous defense under the Sixth Amendment.