Historically, most censorship efforts have come from the authoritarian right—tyrannical governments, intolerant churches, fascist movements. Although right-wing censorship persists, today much of the pressure to censor comes from the hard left: multiculturalists who reject the superiority of the open marketplace of ideas as Western bias, radical feminists who seek to purge images and attitudes that reflect sexism, academics who insist on imposing their notions of political correctness on their students, other radicals who “know” the “truth” and see no reason to tolerate the untruths of their opponents.
Eternal vigilance—against censors of the right and left alike—is essential to the preservation of liberties that many Americans take for granted. The struggle for freedom of expression—like the struggle for other rights—never stays won.
On balance, the First Amendment remains relatively healthy and vibrant in America and continues to serve as a model for many, but not all, emerging democracies. The same cannot be said about our criminal justice system, the other area of law I have been teaching and practicing for so many years.
12
LIFE INTRUDES ON LAW
Illness and Other Close Calls
By the early 1970s I had become well established as a young academic, as a budding First Amendment lawyer, and as a father. Life was good. Suddenly everything changed.
My older son, Elon, fell while playing hockey, hit his head on the ice, and was taken, unconscious, to St. Elizabeth’s Hospital. Nobody was sure whether he had fainted before he hit his head or whether the impact with the ice had caused his unconsciousness. The initial diagnosis was adolescent epilepsy, which was treated pharmaceutically.
In the summer of 1971, the family traveled by car to Palo Alto, California, where I was to take up residency for a year at the Center for Advanced Study in Behavioral Sciences. My project was to complete a long, scholarly book titled Predictive Justice: Toward a Jurisprudence of Harm Prevention. It was an ambitious project for a thirty-three-year-old academic, but I felt up to the task of formulating a new legal framework for what I saw as the emerging “preventive state.”
The center, located adjacent to the Stanford University Campus, was a unique institution. It would invite approximately forty scholars from around the world, each from different disciplines that touched on behavioral sciences. I was the only law professor that year, among a group that included the philosopher Robert Nozick, the political theorist Michael Walzer, the linguists Robin and George Lakoff, the psychologists Philip Zimbardo and Amos Tversky, the sociologist Nathan Glazer, the psychiatrist Albert Stunkard, the Romanian economist Michael Cernea, and the psychoanalyst Bruno Bettelheim.
We were each assigned a small cabin in which to write our own books, but we were expected to join the others for luncheon talks and seminar presentations. Collaborations were encouraged, and many fine books emerged from the serene hills of Palo Alto.
Mine, however, was not among them. In early December, after I had completed my historical research and writing, my son Elon was diagnosed with a malignant brain tumor—a diagnosis missed by the Boston doctors in the days before CT scans. The first person to suggest the dreaded diagnosis was Bruno Bettelheim, who worked in the adjoining cabin and invited me for “high tea,” which his Viennese-born wife would bring him every afternoon. Although Bruno was not a physician—indeed he had never been able to complete college because of the emergence of Nazism in Germany and Austria—he had studied with Sigmund Freud and was regarded as one of the most distinguished, though controversial, psychoanalytic thinkers in the world.
When I told him about my son’s recurring headaches and seizures, his first comment was “Remember George Gershwin?” I was a great fan of Gershwin’s music, and family lore suggested we might even be related, since his original name was Gershowitz, and the Gs, Ds, and Hs sometimes got mixed up at Ellis Island. But I didn’t know what Bruno was referring to. He explained: “Gershwin had headaches for years and underwent lengthy psychoanalysis by analysts who believed that every pain was caused by early childhood experiences, and could be treated by the talking cure. Eventually, it was discovered, he had a brain tumor from which he died at age thirty-eight.”
Following this morbid conversation, I took Elon to Stanford Hospital, where a brain scan disclosed a tumor. We rushed him to Boston’s Children’s Hospital, where a remarkable neurosurgeon, John Shilito, removed it. We then returned to Stanford, where another remarkable doctor, Henry Kaplan, performed radiation therapy over several months.
I did not have enough money to afford this extraordinary medical care, and Judge David Bazelon—who was Elon’s godfather—loaned me what I needed. He also loaned me money to invest in a real estate venture with a friend of his in Washington, Charles E. Smith. The return on that venture allowed me to pay off my loan to Bazelon over several years, but I vowed never again to require help from others to take care of my family’s medical needs. From then on, I began to charge clients who could afford my legal services. Within a few years, I had saved enough to be able to pay for any medical or other family emergency.
When I returned to the center at Stanford, nothing was the same. I couldn’t concentrate on my book. My marriage, which had been suffering for several years even before our trip to California, was now in deep trouble. All I could think about and work on was my son’s condition. The clock was always ticking. The doctors told me that if he made it past a year, the odds of his survival would go up, and if he made it past two years, they would go up even more. These years went by very slowly, with several scares but thankfully no recurrence.
During this time I spent hours in the medical library, learning all I could about Elon’s condition. The doctors were encouraging but the research was not. (Research has no bedside manner!)
Although I did not turn to religion as a source of solace, I did read and reread the book of Job, a remarkable story about how human beings confront tragedy. When God decided to test Job’s faith, his first action was to afflict his children. The author of Job understood, as anyone who has experienced the serious illness of a child understands, that there is no greater test a parent confronts than when a child faces death.
Everything changes. Life is put on hold. Samuel Johnson once observed that nothing focuses the mind quite as clearly as an appointment with the hangman.1 Johnson obviously didn’t have a child with cancer. Nothing can make a parent focus more single-mindedly on any issue than a child with a life-threatening illness and the steps that must be taken to maximize the chances of survival, both physical and psychological.
I have discussed this issue with friends who have lived through life-threatening illnesses suffered by their children. Some, like me, try to become super-scientists, reading everything they can get their hands on, conferring with every expert they can reach, and micromanaging every medical decision. Others leave these matters to the doctors and devote themselves to showering their child with love and support. Still others find it difficult to engage either scientifically or emotionally. Every parent is different, as are the needs of every child. Illness among children does not come with a one-size-fits-all instruction manual. The first priority, of course, is the life of the child, but not far behind is the psychological welfare, both short- and long-term, of the child who survives the illness.
One common reaction among parents of seriously ill children who have made it through the initial treatment phase is to try to bury the difficult memories by not thinking or talking about the traumatic past. With cancer survivors this is especially problematic, since the threat of recurrence is ever present, and past may become prologue. Healthy vigilance must be balanced against unhealthy obsession with every possible symptom. The struggle never ends. The scars, though sometimes invisible, remain.
A seriously ill child tests the strength of every individual and every relationship. Some endure, even thrive, while others weaken or even shatter. There is no way to prepare for the challenge, because a family’s journey to the valley of the shadow
of death almost always comes on without warning.
There are several stages a parent goes through during and following the diagnosis. The first involves immediate panic, overwhelming frustration, and a sense of helplessness. This may be followed by intense involvement in the treatment process. Then there is the treatment itself—often surgery followed by radiation and chemotherapy. Finally, there is waiting—a year, five years, ten years—before one can be relatively confident that the treatment has worked. During this waiting period, it becomes difficult to concentrate on anything else, as your child seems cured, but you know there is the lingering fear of recurrence. I could not focus on long-term projects. I needed short deadlines that did not allow my mind to wander. But wander it did, to my child’s future, to whether I was subtly treating him differently because of his encounter with illness, to every minor symptom that might signal a recurrence.
Elon is the hero in this saga. The doctors told him that the surgery might affect his manual dexterity. His hobby was close-up magic, which requires extraordinary dexterity. He was determined to prove the doctors wrong, so he worked endlessly on his moves. Before the surgery, he had a magic act that he performed to friends and some Stanford fraternities. He had billed himself “Elon the Pretty Good.” Following the surgery he quickly became, at least to me, “Elon the Great,” performing at Boston Celtics Christmas parties, Patrick Kennedy’s birthday party, and at the Legal Sea Foods Restaurant.
More importantly, he performed for kids with brain tumors and other neurological problems at hospitals and radiation centers, even when he himself was undergoing radiation therapy. It was a difficult time for all of us, but Elon’s determination lifted our spirits.
Nor did Elon’s friends (and their parents) make it easier on Elon. His closest friend in California was told by his parents to keep his distance from Elon. When I raised the issue with them, they said they did not want their son to become too close to a boy who might die. Schoolmates taunted Elon about his wig and called him “tumor boy.” But Elon persisted, even playing football within a year of the surgery.
My Only “Crime”
I can think of only one crime that I may have committed in my life, and I know that if I had been tried for it, I would not only have been acquitted, but the jurors would have cheered me.
Shortly after my son Elon’s surgery, he went back to work selling newspapers in the subway station at Harvard Square. One day two young hoodlums from Somerville beat him up, broke his tooth, and stole the few dollars he had earned. A local policeman, Frank Burns, who knew Harvard Square like the back of his hand, immediately recognized the MO of the thugs and arrested them.
Several days later, the thugs came back to Harvard Square, robbed my son again, and told him that unless he withdrew his complaint, they would throw him in front of a moving train. He called me and I ran to the square, where I saw the two thugs taking a victory lap. I approached them and I said, “I have only two words to say to you.” I then mentioned the name of a man on whose case I was then consulting. Although the charge against him involved marijuana trafficking, the man himself was known to be a notorious hit man for one of Boston’s most violent gangs. I told the two youths that if they ever came near my son again, I would tell my client, who would do anything for me. The two thugs got down on their hands and knees and pleaded with me not to tell my client what they had done. They never came back. I never told my client; indeed I had never met my client, and still haven’t. I was just consulting with another lawyer on a constitutional issue related to the case. But simply mentioning his name terrorized the thugs. I’m not sure whether what I did was a crime. But I would do it again if anyone ever threatened any of my children. Forty years later, Elon was again hospitalized for possible damage to his field of vision caused by the earlier radiation. A few days after he left the hospital, we hailed a taxi in New York. Elon opened the door and a bottle of wine that a female passenger was holding fell to the ground and broke. Elon apologized and offered to pay for it, but the other passenger—a man in his forties—started to attack Elon with his fist. Without thinking, I reared back and punched him square in his jaw, causing his glasses to fall from his face. It was the first time I had punched anyone in sixty years. I would do it again if anyone physically attacked one of my children.
My wife and I separated briefly during our stay in Palo Alto, but we decided to try to remain together, in order to see whether a return to our more usual life in Cambridge could salvage the marriage.
On the road trip back east, during the summer of 1973, I received a call that would change the direction of my life, both professionally and personally. It came from an old Boro Park neighbor, who grew up two doors away from me. He had the unlikely name of Elefant, which had given rise to much youthful teasing, but now he too was a lawyer. Among his clients was the Jewish Defense League, a controversial organization headed by the fiery and charismatic Rabbi Meir Kahane.
The JDL case would thrust me back into a world I thought I had left. The major events of the case had taken place in Boro Park, literally a few blocks away from where I had lived. Elefant asked me if I would be willing to represent a young man named Sheldon Siegel, who was facing the death penalty for having constructed a smoke bomb that others had planted in the office of Sol Hurok, a world famous impresario who brought Soviet musicians to the United States. The bomb had killed a young Jewish woman named Iris Kones, who worked as a receptionist in the office. Hurok’s office had been targeted because the JDL opposed any cultural exchanges with the Soviet Union so long as Jews were not allowed to emigrate and were imprisoned for trying.
I had been acquainted with Shelley Siegel growing up. His older sister was part of my social circle, and I had taken dancing lessons in her basement. Elefant told me that I was not their first choice as a lawyer, since I had no experience in trying murder cases at that time, but no other lawyers were willing to take this case, especially on a pro bono basis. Despite my need for money, I quickly agreed to put together a team to try to save Shelley’s life.
The JDL case, which would be tried in the New York Federal Courthouse at Foley Square, would take me away from Cambridge for several days each week. Fortunately, all my classes were on three mornings, so I could come into New York on Wednesday afternoon and remain there through the weekend. My marriage, which was hanging on by a thread, began to unravel as I discovered that I enjoyed being away from home more than being at home, though I missed my children during my time away.
I have written about the JDL case, with its twists and turns, at considerable length in my first book, The Best Defense.2 I also allude to it in the forthcoming chapter on homicide cases. For present purposes, it is enough to say that the case changed my attitude toward the law and shook my faith in our judicial system, despite the fact that we eventually won a total victory.
My client, as it turned out, was not only the expert bomb maker for the JDL; he was also a secret government informer who was providing information to the police about the activities of his organization. The government intended to grant him immunity and use him as the star witness against the other defendants. I did not learn this crucial fact until well into the case, and when I did, I thought seriously about getting out, because my client had not been straight with me. But I soon realized that he had been pressured into becoming an informer by threats against his life made by a New York City policeman, who himself had grown up in my old neighborhood. I was able to use my familiarity with guys like him to trap him with my cross-examination. Siegel had surreptitiously recorded these threats, and I used those recordings to expose the policeman’s improper conduct and to prove that he had promised never to use Siegel as a witness. The court of appeals ultimately ruled that Siegel could not be called as a witness. Without his testimony, the case against the others crumbled and everyone went free.
I sat in court for a full hour after everyone else had left. I wanted no part of any victory celebration. I was thinking of Iris Kones. This was the first time
I had used my legal talents to help free guilty murderers. It would not be the last.
I worked on the case with my former student Harvey Silverglate, and a young associate at his firm, Jeanne Baker. Working together with these two extraordinary young lawyers—both of whom became close personal friends—made it clear to me how unhappy I was in my marriage, which soon ended formally with a separation and then a divorce. I had failed in my marriage, and I was beginning to experience doubts about my commitment to producing scholarly writings. My blood pressure went up, and for the first time in my adult life, I felt vulnerable and lacked self-confidence.
I was also feeling ambivalence concerning my connections to my Jewish heritage. My involvement with the JDL, and my return to Boro Park to investigate the case, forced me to confront my own complicated feelings regarding my Orthodox Jewish past. I hated the violent means selected by the JDL to achieve their ends, but I felt an increasing sympathy for their goal of freeing Soviet Jewry. I had been introduced to the plight of Soviet Jews by Elie Wiesel several years earlier, but Rabbi Kahane and his followers forced me to confront the depth of my emotional attachment to my brothers and sisters in the Soviet Union. There, but for the grace of God, and the willingness of my grandparents to leave Eastern Europe, go I. I became determined to show the JDL that there were other and better ways to help Soviet Jews than by killing and endangering American Jews and others.
My encounter with the JDL also made it clear to me that my Jewishness was very much a part of my being, but that I had to define it on my own terms and live it my own way. I was not a theological Jew, or any longer a fully practicing one. Neither could I be a radical or violent Jew. I decided to become a Jewish lawyer. But what exactly does that mean? Sandy Koufax, my neighbor in Boro Park, was a Jewish baseball player, but there was nothing about his playing that reflected his Jewish heritage. Indeed his most famous Jewish act was not an act at all. It was a refusal to act—his decision not to play on Yom Kippur. I too do not play or work on Yom Kippur, and probably for much the same cultural and emotional reasons that influenced Sandy’s decision. I did not fully understand my emotional attachment to a religious culture whose theological underpinning I could not accept, but I decided that a substantial part of my legal career would be devoted to defending Jewish values and Jews in trouble around the world. Shortly after the JDL case, I traveled to the Soviet Union to defend, on a pro bono basis, numerous Jewish refuseniks and prisoners of Zion.3
Taking the Stand Page 25
