Taking the Stand

by Alan Dershowitz

  My surprising victory in the JDL case brought me dozens of requests to represent others—Jews and non-Jews, paying and pro bono clients—charged with serious crimes, especially homicide.

  By the time the JDL case was over, I was divorced, and my two sons, then in their early teen years, were living with me. For the next several years, I devoted much of my time to trying my best to be a good father. We moved into a large, rented house in Cambridge, which my kids called “Camp Dershowitz.” It had a basketball hoop in the backyard, a pinball machine in the basement, a Ping-Pong table, and lots of other sports equipment. It became a gathering place for my children’s friends and classmates. It also became a crash pad for my friends. At one point, a Soviet Jew I had helped emigrate lived with us for several months, followed by a Romanian Jew whose family I had helped. (The Romanian Jew was the daughter of Michael Cernea, the economist I had met at the Center for Advanced Study of Behavioral Sciences.) By the end of the 1970s, my children were well settled. Elon had been accepted at the University of Colorado and Jamin was nearing the end of his high school career. Both were doing very well.

  In the beginning of September 1979, I took Elon to the University of Colorado to begin college. It was the happiest day of my life. He had made it through the critical five-year benchmark and was nearing the ten-year mark. I spent a nice day with Elon helping him move into his freshman dorm and buying him the usual stuff for school. I then returned to Stapleton Airport, intending to fly to New York for dinner with my brother and sister-in-law.

  The plane took off routinely, but when it got to about ten thousand feet, it began to rattle and shake. The pilot came on the loudspeaker and spoke the words everybody dreads: “We have a serious problem.” He explained that the flaps were locked in the takeoff position and that neither automatic nor manual efforts to reposition them were working. We would have to make an emergency landing with the flaps in the takeoff position. He assured us that he was trained for this maneuver, but a man sitting next to me who had been in the air force told me that this was quite dangerous. That view was confirmed when the pilot soon asked if there was anybody on the plane who was experienced in situations of this kind. A few volunteers came forward, and they were seated near the exits and given special instructions on how to help the passengers off the plane in the event of a crash landing. The crew then made some of us, including me, change our seats. I was placed next to a pregnant woman and asked if I would be responsible for helping her leave the plane. I agreed. The pilot then told us that he would be dumping fuel over the farmlands and that once we were near empty, he would try to land the plane on a runway filled with foam and adjacent to firefighting equipment. He told us we had about an hour before he would be attempting the landing.

  People all around me were praying. Nobody panicked. The crew asked us all to remove our eyeglasses and taught us the brace position for a crash landing. Women were required to remove their high-heeled shoes. Passengers were told to take sharp items out of their pockets. We were also told to retrieve soft items—underwear, shirts, and such—from our overhead baggage and use them as pillows to blunt any anticipated impact.

  We then had about a half an hour before we would either land or crash. I was nervous but remarkably calm, focusing on exit routes and ways of improving the odds of surviving. I learned at that time, for an absolute certainty, that I did not believe in an intervening God, since I did not spend one second praying or trying to make a deal with God. It simply never occurred to me. It was not true, at least in my case, that there are no agnostics in a foxhole. Instead, I decided to write a long letter about my children, who were the focus of my thoughts. I’ve never showed them the letter but here are some excerpts from it, which summarize my feelings at what I thought might be the end of my life but which has turned out to be closer to its midpoint.

  At about 11:50, pilot told us that we were having a flap problem; that he was trying to get in touch with S.F. (about what he didn’t say) and that we might have to go back to Denver.… Haven’t heard anything now for 15 or so minutes.… Captain just told us emergency landing at high speed. They’re telling us about precautions and evacuation.

  Heck of a way to end a trip putting my firstborn in college.

  I’m nervous and feel a bit shaky.

  I find my thoughts turning to my kids. Are they really ready to cope with the world without me? I think so. But I wish there had been more time. I’m very proud of them both. Elon has been incredible in the way he has overcome his hardships. His ability to teach himself magic has been phenomenal. Sometimes I haven’t shown the kind of appreciation I should have, because I have been somewhat ambivalent about encouraging him to spend too much time on it. But I can’t get over how he has managed to become a great—really great—magician in such a short period of time. His individualism—his ability to remain himself even when it has been painful to do so—has been very admirable.

  Jamin has been a joy in every way. I know he will do well in everything he does.

  Nobody should grieve for me. It’s been a wonderful life. I have done more in my 41 years than most people do in more. I have no complaints.

  I hope that my family will continue the work and ideas that have been important to me. But don’t let me rule you from the past. You’re all your own people.

  I put the letter in the plastic case that held my shaver, as the pilot maneuvered the plane for the emergency landing. It was the longest five minutes of my life. The plane landed at a sharp angle and with a heavy thud on the left side. Several people on the plane were shaken up and bruised, but there were no serious injuries. When the pilot came out of the cockpit, greeted by thunderous applause and cheers, he was dripping wet. He announced, “We all just dodged a bullet. Now you can start your lives again.”

  I really did regard this as the beginning of a new phase of my life. I was not quite an empty nester, but neither was I the kind of hands-on parent I had been over the past several years. I was ready to resume my life and my career.

  Early in the next decade, shortly after Jamin went off to college at the University of Pennsylvania, I met my second wife, Carolyn Cohen, and we moved together into a smaller house in Cambridge, where we began our life as a couple.

  My relationship and eventual marriage to Carolyn—followed by the birth of our daughter, Ella—marked another important transition in my attitude toward life. Before I met Carolyn (which in our family we refer to as “BC”), I had never owned a home, always living in rented apartments, with few personal possessions, such as a half dozen small lithographs. My home life lacked the sort of stability to warrant the permanence of home owning or significant art collecting. My children called it my “Holocaust mentality,” which Elon explained as “You’ve got to be able to move away at a moment’s notice, so don’t burden yourself with immovable objects.”

  Once I met Carolyn, I began to imagine a future secure enough to justify purchasing a home and filling it—really filling it—with paintings, sculptures, antiquities, Judaica, and tchotchkes. Our large new home, which we purchased shortly after Ella was born, became a kind of museum, in which we entertained students and held charitable and political fund-raisers. We were there to stay.

  Beyond the material manifestations of this change in attitude, there were also the psychological. In the decade after I met Carolyn, I became more self-confident—writing books, litigating more cases, and generally achieving a better balance among the different aspects of my life and career.

  When I first met Carolyn, she noticed that I often worked through the weekends. When she asked me why, I said: “Weekend, weekday, it’s all the same. They’re just days of the week.” She changed that, urging me to set aside specific “no work” time over the weekend. I’ve been doing that and enjoying my new secular “Sabbath” ever since. We also bought a vacation home on Martha’s Vineyard, where we spend our summers. I do much of my writing in my office there, overlooking the Atlantic Ocean. We have a community of Vineyard friends, and my f
amily spends time there with us as well. Carolyn brought love, confidence, structure, and stability into my life just when I needed it. The decade to come included some of the most challenging, controversial, and high-profile cases and causes of my career, focusing heavily on issues of life and death. My own encounter with my son’s life-and-death crisis, and the loving support provided by Carolyn, prepared me for this emerging phase of my life and career.

  My paternal grandparents, Ida and Louis Dershowitz. (From the author’s collection)

  My maternal grandparents, Blima and Naftuli Ringel, and one of their sons, Morris. (From the author’s collection)

  My mother, Claire, then Clara, graduating from high school at age fifteen. (From the author’s collection)

  Me before the age of three, when according to Jewish tradition, a boy receives his first haircut. (From the author’s collection)

  My younger brother, Nathan (Tully), and me at Coney Island. (From the author’s collection)

  My Bar Mitzvah picture. (From the author’s collection)

  My senior term high school report card, with two flunking grades for the first half. (From the author’s collection).

  Me as a seventeen-year-old assistant counselor at Camp Maple Lake, between my unsuccessful high school years and my successful college years.

  Me as a crew-cut freshman at Brooklyn College, wearing my high school varsity jacket. (From the author’s collection)

  Judge David Bazelon. (From the author’s collection)

  Me as editor in chief of the Yale Law Journal. (From the author’s collection)

  Me with Justice Arthur Goldberg, shortly after he left the Supreme Court. (From the author’s collection)

  Interviewing Prime Minister Golda Meir for the TV show The Advocates. (From the author’s collection)

  Giving a standing-room-only lecture at Harvard Law School. (From the author’s collection)

  At graduation, with three of my research assistants: Jim Cramer, Eliot Spitzer, and Cliff Sloan. (From the author’s collection)

  A New York Post write-up of a fund-raiser for Harry Reems, in which I am misidentified. (Courtesy of the New York Post)

  With Jeremy Irons, who won the Academy Award for Best Actor portraying Claus von Bülow in the film version of Reversal of Fortune, and Elon Dershowitz, who co-produced the film. (From the author’s collection)

  The real Claus von Bülow in his Fifth Avenue, New York, apartment. (Courtesy of the New York Times)

  A New York Times cartoon of me and my clients, Jim and Tammy Bakker. (Courtesy of the New York Times)

  With Leona Helmsley. (Getty Images)

  The Tison brothers, in T-shirts, with Randy Greenawalt in foreground. (Courtesy of the Pinal County Sheriff’s office)

  With my client and friend Natan Sharansky. (From the author’s collection)

  Mike Tyson being led to jail. (Getty Images)

  Me arguing a legal issue in the 1994 O.J. Simpson case. (Getty Images)

  A courtroom sketch of me testifying in the Woody Allen–Mia Farrow custody case. (Jane Rosenberg, CBS News)

  Hillary and Bill Clinton at Rosh Hashanah services with me, my son, Elon, and my wife, Carolyn. (Courtesy of the White House)

  The Washington Post account of my testimony in Congress against President Clinton’s impeachment. (Courtesy of the Washington Post)

  President Clinton with my daughter, Ella, and his daughter, Chelsea, on the beach at Martha’s Vineyard. (From the author’s collection)

  Debating with Noam Chomsky about the Middle East at Harvard’s Kennedy School of Government. (MerlinONE)

  Fouling my brother during a one-on-one basketball game. (Harry Benson)

  Carolyn and me in our funky living room in Cambridge. (Getty Images)

  My ill-fated Harvard Square deli, with co-founder Marcus Weiss. (Courtesy of People magazine)

  With former Harvard Law School student Chief Justice John Roberts. (From the author’s collection)

  Preparing to teach a class at Harvard Law School with Stephen Jay Gould and Robert Nozick. (From the author’s collection)

  With President Obama and his Middle East national security team at the White House, sharing a joke I told. (Courtesy of the White House)

  Being detained by Swiss security after confronting President Ahmadinejad in Geneva. (Haaretz)

  Israeli president Shimon Peres shows me his Nobel Peace Prize at his office in Jerusalem. (Courtesy of Thomas Ashe)

  With Palestinian National Authority president Mahmoud Abbas, signing a plan to restart Israeli-Palestinian peace negotiations. (Courtesy of the Jerusalem Post)

  With Israeli prime minister Benjamin Netanyahu at his home in Jerusalem. (Courtesy of the Prime Minister’s office)

  On the cover of the Baltimore Jewish Times, in a familiar role as defender of Israel. (Courtesy of the Baltimore Times)

  My family at Martha’s Vineyard in 2005: (Top row) My daughter, Ella, a graduate of Yale and an actor in New York; me; my wife, Carolyn; my younger son Jamin, chief counsel of the WNBA; my son Elon, a film producer. (Bottom row) My grandson, Lyle, now a freshman at Harvard; my granddaughter, Lori, now a junior at Harvard; and my daughter-in-law, Barbara, an emergency room doctor at New York–Presbyterian Hospital. (Peter Simon)

  At Fenway Park before throwing out the first pitch, eating a sandwich named after me on my seventieth birthday. (From the author’s collection)

  Throwing out the first pitch—a strike to Kevin Youkilis—at Fenway park. (Courtesy of Thomas Ashe)

  CRIMINAL JUSTICE

  From Sherlock Holmes to CSI

  13

  “DEATH IS DIFFERENT”1

  Challenging Capital Punishment

  From the beginning of my academic career, I taught classes involving criminal justice, but I had little practical experience as a criminal lawyer. Nor had I grown up with a passion for criminal law, as I had with respect to freedom of expression. Like most kids growing up in Brooklyn, I always rooted for the good guys—the United States Army, the local police (whom we met at events sponsored by the Police Athletic League, or PAL), the cowboys with white hats on the screen of the local movie theater, and our beloved Brooklyn Dodgers.

  When I thought of becoming a lawyer, I imagined myself defending only the innocent and winning their justly deserved freedom. I didn’t know any real criminals, and so the issue for me was abstract, with a simple—indeed simpleminded—solution: The guilty should all be convicted and punished; the innocent should all be acquitted and freed. It was black-and-white. No moral or emotional ambiguity or conflict.

  I was aware that some innocent people—particularly from groups discriminated against, such as Communists or blacks—had been wrongfully convicted. I wanted to become one of those heroic defense lawyers who helped secure justice for the wrongly convicted, like the Rosenbergs and the Scottsboro Boys.

  It never occurred to me that someday I would also be helping guilty murderers go free. That was not a narrative with which I was familiar, either from real life, the movies, or television, where the acquitted were always innocent and the convicted always guilty. Indeed, the Hays Code—which used to determine what could be shown on the big screen—explicitly required that the guilty be punished. And Perry Mason always represented innocent clients, and was able to secure justice by discovering who the real killer was.

  That’s the kind of criminal lawyer I wanted to be!

  The only problem, as I soon learned, was that Perry Mason is a fictional lawyer. In real life, there are no lawyers who represent only the innocent, though there are some who mendaciously claim they do. Moreover, as I also learned, there are no criminal defense lawyers who win all of their cases. And finally, I learned that guilt and innocence are often not black-and-white extremes, but rather matters of degree.

  My primary exposure to the criminal justice system had come during my clerkships, which focused on the death penalty and cases involving the interface of law and science. Not surprisingly, when I decided to obtain some prac
tical experience, I was most comfortable beginning with such cases and causes. I was drawn immediately to cases involving death, because such cases are the most challenging.

  Cases involving death really are different.2

  Whenever a defendant is at risk of losing his liberty, the stakes are high, but when he is at risk of losing life—when the death penalty is on the table—the stakes are the highest. Even in murder or attempted murder cases in which the death penalty is off the table, the life-and-death nature of the case makes it different.