Taking the Stand

by Alan Dershowitz

Early the next morning, he called me back. “I’ve spoken to Abe Chayes,” he said, referring to a Harvard Law professor who was then serving as legal advisor in the State Department. “He’s more optimistic that cooler heads will prevail. Come into work.”

  So off I went to the courthouse, where Bazelon gave us hourly updates on the Cuban Missile Crisis until it was resolved by a deal. “I misjudged those Kennedy boys,” he told me when the crisis was over. “Abe tells me they did good. Much better than the Bay of Pigs. They were actually quite mature. They’re quick learners. They did good.”

  A few weeks into my clerkship, Justice Felix Frankfurter resigned from the Supreme Court, leaving the so-called “Jewish seat” vacant. Judge Bazelon was on the short list, along with Senator Abraham Ribicoff and labor secretary Arthur Goldberg. Ribicoff and Goldberg were close friends of Bazelon. All three wanted the job, but Bazelon was regarded as too liberal, especially on criminal justice matters, and was strongly opposed by Justice Department officials. I vividly remember the day Goldberg was nominated. “Arthur will be a great justice, if he has the sitzfleish [literally, “enough meat on his rear end to sit for long periods of time”] to stay on the bench,” Bazelon told me. “He’s used to the active life of the labor lawyer. Always in the middle of the action. He’s going to have to get used to the isolation, but he’s smart as hell, and he’s always wanted to be on the Supreme Court.”

  Bazelon was disappointed, but he knew it would have taken a miracle to overcome the objections of the Justice Department, and he didn’t have close connections to the Kennedys.

  “Good for you. Not so good for me. And good for the country” is how he summarized the appointment to me. Good for me, because the new justice would certainly consider a recommendation from his old Chicago friend when picking his next year’s clerks.

  Judge Bazelon became chief judge of the U.S. Court of Appeals soon after I began working for him and dominated that important court—second only to the Supreme Court—during his long tenure. His rival was Judge (later Chief Justice) Warren Burger. Bazelon was deeply committed to equality in the criminal justice system—between rich and poor, white and black, mentally sound and mentally ill.

  These passions brought him into constant conflict with the executive and legislative branches of government, and especially with prosecutors. He knew he could never win his battles by relying on public opinion, which showed little compassion for accused criminals. His weapons were education and elite academic opinion. His goal was to change minds through his opinion writing, speeches, and articles. He chose his law clerks based on their ability to assist him in these tasks. “Every case presents an opportunity to change minds, to teach, to influence,” he would say. “The court is a bully pulpit, and we must make the most of it.” His favorite story was about the New York judge who complained, “Why does Cardozo always get the interesting cases?,” referring to the great New York Court of Appeals chief judge (later justice) who transformed tort law and other parts of the legal landscape with his elegant opinions. The point, of course, was that the cases weren’t interesting until Benjamin Cardozo got his hand—or pen—on them. He turned mundane legal controversies, such as a railroad accident or a conventional contract dispute, into monumental legal decisions.

  Judge Bazelon did the same with regard to criminal cases, especially those involving defendants who could not afford an adequate defense and those with mental illnesses. He would ask me to scour the records of cases—even those not assigned him—for evidence of injustice. He told me that most indigent defendants—and most defendants in D.C. were indeed indigent—did not have adequate lawyers: “You’re their lawyer of last resort,” he would tell me. “Search the record. Tell me if you find any injustices.”

  “But the case isn’t even before you,” I would protest, or “There were no objections and so the issues aren’t properly preserved for appeal.”

  “No matter. We will find a way to secure justice. Your job is to find injustices. My job is to figure out a way to bring about justice.”

  He told me about a conversation between the great Justice Oliver Wendell Holmes and one of the justice’s clerks. After the justice rendered an opinion denying relief to a morally deserving litigant, the clerk complained, “But Mr. Justice, the result is unjust.” To which Holmes responded: “We’re in the law business, young man, not the justice business.”6

  David Bazelon was in the justice business, though he used the law—sometimes stretching it beyond existing precedent—to bring about what he regarded as a just result. He was a “judicial activist,” at least when it came to doing justice to the poor, the disadvantaged, and the sick—and he was proud of it. That catchphrase had not yet become a term of opprobrium, as it has to so many today.

  I recall telling Bazelon, who was Jewish but not well educated in Jewish religious tradition, that the Torah commands not merely that we be just, or even that we do justice, but rather that we actively pursue justice, as if injustice never rests. The exact words of Deuteronomy—which I recalled because I recited them in my Bar Mitzvah portion—were “Justice, justice, you must actively chase after.”7

  Bazelon asked me to make a sign for his office with these words. He quoted them frequently in defense of his activism. They became his mantra, as they have become mine. The sign now hangs in my office. Another example of the good that has come from my not-so-good Jewish education!

  The other good lesson—this one taught by Bazelon to me by example—was that justice requires some degree of compassion. When I told Bazelon about the justice quote from the Torah, he asked me why the word “justice” was repeated. Wouldn’t it have been enough to say, “Justice you must actively chase after.” Why “justice, justice”? No word, or even syllable, of the Torah is supposed to be redundant. I told Judge Bazelon that the rabbis had a field day providing interpretation to the repeat of justice. My favorite, the one I had proposed in my Bar Mitzvah speech, was that the first tzedek meant legal justice, while the second meant compassionate justice.8 Judge Bazelon corrected me: “Compassion must come before law.” Whichever came first in Judge Bazelon’s court, every decision that he wrote or joined combined both. His compassion wasn’t always appreciated, even by its objects. Judge Bazelon once showed me a letter he received from his most famous defendant, a man named Monte Durham. Durham was the defendant in the case in which Bazelon announced his innovative approach to the insanity defense in the form of a new rule called the “Durham Rule,” which declared a person to be not guilty by reason of insanity if his crime was “the product” of a mental disease or defect.9 This controversial rule revolutionized the relationship between law and psychiatry. The letter from Monte Durham complained about the rule bearing his name. “Now everyone calls me ‘Durham the Nut.’ ” He noted that when doctors discover a new disease, they name it after themselves. He wondered why the new rule wasn’t called “the Bazelon Rule” instead of “the Durham Rule”! Bazelon apologized, noting that if judges could name new rules after themselves, there would be too many new rules.

  Judge Bazelon and I were a match made, if not in heaven, at least in legal nirvana. I learned a lot from him and even taught him a little. We remained lifelong friends, though the year of clerking was more like hell than heaven, at least as regards working conditions.

  Bazelon was never satisfied. He never told me that a draft was good. It always needed to be “made better.” “It’s getting there” or “It’s close” was the highest compliment he ever paid.10 But when it was published, and colleagues complimented him, he would always give me credit. But never to my face. He knew his opinions would be read by generations of law students, professors, lower court judges, and assorted critics. He was on a never-ending mission, and nothing was ever good enough. Even if it was good enough to publish or deliver because of deadlines, it was never quite good enough for him. But the long hours, demanding boss, and difficult working conditions were well worth it. Law clerks who endured this trial by fire went on to great careers.
Former Bazelon clerks include the deans of Harvard and Yale Law Schools, the president of New York University, the former chancellor of the New York City school system, a prominent reform rabbi, and numerous law professors, lawyers, and business and political leaders. He influenced us all, and his influence persists. As Peter Strauss, a law professor at Columbia, once aptly characterized the relationship between Bazelon and his clerks: “He the pebble, we the ripples.”11

  The primary job of the law clerk related to the cases that came before the United States Court of Appeals for the District of Columbia. In the years I was a clerk, that court served not only as a federal appellate court, but also as the Supreme Court of the District of Columbia, a reasonably sized city with a racially mixed population and a relatively high violent crime rate.12 Many of our cases involved appeals relating to federal administrative agencies—the so-called “alphabet agencies”—such as the FCC, FPC, SEC, and FDA. The rest were run-of-the-mill criminal cases—murder, robbery, rape, assault, and other street crimes. It was a perfect combination for a budding law professor who was interested in constitutional and criminal law.

  Our task began with a record, consisting of the appellate briefs filed by the lawyers and an “appendix,” which included excerpts from the trial transcript. Some records were relatively short, perhaps three hundred pages in total if the trial took only one day. Others were humongous, as many as five thousand pages. Then there was the complete trial transcript—a verbatim account of every word spoken during the trial, as well as during the pretrial and posttrial proceedings. Judge Bazelon would often ask me to read the entire transcript in search of errors or particular issues that were of interest to him.

  When we completed the review, we would discuss the case with the judge, who had read the briefs and perused the appendix in preparation for the oral argument. Occasionally, we were permitted to listen to the argument, especially when leading lawyers were arguing, or when issues close to the judge’s heart were being considered. But generally, we were required to remain in the chambers working while the judge presided over the argument.

  Since Bazelon was the chief judge, he got to assign the opinion to one of the three judges on a panel (or nine when on rare occasions the entire court heard the case “en banc”). Following the oral argument, there was a conference among the judges, during which a tentative result was reached and the case assigned. Bazelon always assigned the most interesting cases to himself, or to a judge whose decisions he wanted to influence. We would then meet with Bazelon, and he would tell us which clerk was to work on the opinion. I always got the interesting cases (at least the ones that interested the judge).

  After many drafts, and some pressure from the other judges on the panel, the opinion was released to the public. Generally, they were majority opinions, often unanimous, but frequently there were dissenting or concurring opinions. This was a deeply divided court and the dissenting opinions pulled no punches in criticizing the majority, and vice versa.

  At the end of the year, the clerks would prepare bound volumes of all the opinions we’d worked on during our clerkship. As I write these words, I have in front of me the maroon volume engraved with the following words:

  Chief Judge David L. Bazelon

  Opinions 1962–1963

  Alan M. Dershowitz, Law Clerk

  It is a treasured possession.

  My first case involved a man named “Daniel Jackson Oliver Wendell Holmes Morgan.”13 Any lawyer would be proud to have been named after Daniel Webster, Andrew Jackson, and Oliver Wendell Holmes. The problem was he wasn’t a lawyer and that wasn’t his name! He was an uneducated, but slick, African-American man whose parents were sharecroppers and who had made his way to the District of Columbia, where he bought a dead lawyer’s bar certificate in a junk shop. He started to practice, and he did extremely well, beating real prosecutors in cases involving street crimes. His reputation spread in the downtown area, as he kept winning difficult cases. Ultimately the feds checked him out, discovered he wasn’t a lawyer, and charged him with multiple counts of fraud, forgery, impersonating an officer of the court, and false pretenses. He represented himself at trial and was convicted and sentenced to three to ten years in prison.

  The court appointed a lawyer named Monroe Freedman to argue his appeal. Judge Bazelon invited me to watch the oral argument. I was blown away by Freedman’s eloquence, erudition, command of the record, and ability to further his argument while responding to hard questions. I had participated in moot court appeals as a law student, and I had done very well—even earning a job offer from one of the judges who was a partner at a Jewish law firm. But this was a different league. I remember thinking, “I want to be like this guy,” and wondering whether I could ever be that good. The lawyer for the prosecution was also quite good, though not up to Freedman’s high standards. He was an African-American named Charles Duncan, who, I later was told, was the son of the singer Todd Duncan, who had played Porgy in the original Broadway run of the Gershwin opera Porgy and Bess.

  Following the argument, the judges decided to affirm the conviction. I was upset, because Freedman had clearly “won” the argument and had certainly convinced me that his client deserved a new trial. I pleaded with Bazelon to let me try to draft an opinion reversing the conviction. He said, “Go ahead,” because he too was somewhat sympathetic to the defendant. “But you must find a valid legal basis for reversal. It’s not enough that the defendant’s lawyer was better than the government’s lawyer. Nor is it enough that we think the defendant should get relief. There has to be a legal basis, even if you need to stretch the law a bit. Go ahead and look for one.”

  I searched and searched, but Freedman had mined every possible nugget. There was no plausible legal basis for reversal. I learned several important lessons from this exercise in futility: There’s an enormous difference between winning an appellate argument and reversing a conviction; there’s an equally significant difference between wanting to see a conviction reversed and finding a valid basis for reversal; all the hard work in the world cannot bring about a result if the facts and the law don’t justify it.

  Subsequently, I learned a series of related lessons that paralleled the above: Even when there is a basis for reversal, a bad job of lawyering will not bring it about; a court that is determined to affirm a conviction—because they don’t like the defendant or for some ideological reason—will not be convinced even by the most compelling arguments; without hard work, many of the most persuasive reasons for reversal are never uncovered. I learned these lessons because in Judge Bazelon’s court, the judge and the law clerks often did the jobs that the lawyers were supposed to do. But not in the case of Daniel Jackson Oliver Wendell Holmes Morgan, because his lawyer, Monroe Freedman, had done all the hard work and made all the plausible arguments.

  Eventually Freedman and I became friends and colleagues, and he went on to become dean of Hofstra Law School and one of the nation’s leading experts in legal ethics. I tried to follow in his large footsteps, but I’m not sure I ever made as good an oral argument as he did that day back in 1962.

  The remaining cases during my year were in many ways representative of the Supreme Court’s future docket during the heyday of the Warren court. Many dealt with the rights of indigent defendants—an issue that came to the fore in the Supreme Court’s decision in Gideon v. Wainright,14 decided toward the end of the year of my Bazelon clerkship. That decision ruled that every indigent criminal defendant in a serious case had the right to counsel.

  The opinions of Judge Bazelon over the years had laid the foundation for this decision, and several of them were cited in the briefs filed by his friends Abe Fortas and Abe Krash, who had been appointed to represent Gideon. (My friend John Hart Ely was working for the Fortas firm, Arnold & Porter, during the summer the briefs were being prepared,15 and I reviewed and edited several drafts with John.) Bazelon’s opinions—more often dissenting than majority—had established the conceptual framework for a broad-based claim
of equality in the criminal justice system. He had gone considerably further than the Supreme Court would ever go in seeking to ensure that indigent defendants were treated no differently from wealthy ones. Many of the cases my year dealt with this issue.

  One of the most intriguing cases began as an ordinary pickpocketing of a wallet containing $14.16 Based on the sparse evidence, “the jury could have inferred either that the wallet was picked from [the alleged victim’s] pocket, or that it was accidentally dropped … and was picked up by someone who ran off with it.”17 The judge instructed the jury that there was a legal presumption that a defendant’s “flight may be considered by jurors as evidence of guilt.”18

  There was no dispute that the defendant did flee when confronted by the alleged victim shouting, “Hey, that’s my wallet. Give it back to me.” But of course the defendant might well have fled even if he’d simply picked up a dropped wallet and didn’t want to return it. Such an action would be immoral but not felonious. The jury convicted him of robbery and the judge sentenced him to prison for two to six years.

  When the case came across my desk, I saw it as an opportunity to use my law school background in psychiatry and law—I was working on a casebook with two of my law school professors on Psychoanalysis, Psychiatry and the Law19—to reverse what appeared to be an unjust conviction. The great legal commentator Wigmore had written the following about evidence of guilty feelings:

  The commission of a crime leaves usually upon the consciousness a moral impression which is characteristic. The innocent man is without it; the guilty man usually has it. Its evidential value has never been doubted.20

  This view had become the accepted wisdom of lawyers, judges, and professors and was the basis for the trial judge’s instructions to the jury. I found it questionable, especially in the context of the facts of the case.

  In an effort to support my conclusion that the defendant’s flight in this case was equally consistent with the legally innocent explanation that he was fleeing to avoid returning a dropped wallet and the guilty explanation that he was fleeing from a pickpocketing crime, I introduced a quote from Sigmund Freud: