Taking the Stand

by Alan Dershowitz

  DNA and other recent scientific developments have cast doubt upon the previous techniques of solving homicide cases. Defendants who had been convicted on the basis of confessions, eyewitness testimony, ballistics, fiber, hair, fingerprints, voice analysis, accomplice testimony, and other “reliable” indicia of guilt have been exonerated by DNA and other scientific breakthroughs. Some who were not suspected have now been convicted on the basis of this new science.

  The pervasiveness of surveillance cameras, social media, and other means of recording events has also contributed to the increasing accuracy of detecting homicides and other serious crimes, as have more sophisticated forensic testing and better crime laboratories. Without these new technologies it is unlikely that the Boston Marathon bombers would have been so quickly identified.

  Every technique for solving homicides can also be used to defend against false charges of homicide. Every prosecutorial sword can become a shield in the hands of an astute criminal defense lawyer.

  Most of my murder and attempted murder cases have been appeals from convictions. I’ve handled a few trials, and I wish I could have done more—I love developing evidence and arguing to juries. But my teaching commitments are more conducive to arguing hour-long appeals than month-long trials.

  In many of my cases, I use science not only as a shield to protect my client, but also as a sword to prove misconduct on the part of the prosecution, police, or laboratory technicians.

  My emphasis on scientific evidence led me early in my career to realize that the traditional way of arguing appeals did not maximize the chances of success. The rules for an appeal provide that only errors made at trial may be raised and argued on appeal. All other issues, such as newly discovered evidence, ineffective assistance of counsel, and prosecutorial misconduct discovered after trial, must be raised on what is called “collateral attack”—by a writ of habeas corpus or other procedures that are disfavored by courts. I came to realize that appellate judges, like all human beings, care more about whether a defendant is guilty or innocent than about whether there was a technical mistake at the trial. This perception was solidified by the approach many judges, such as the respected Henry Friendly, espoused: that innocence or guilt should play a greater role in reviewing convictions than what they called “technicalities.”9 This approach has led to a dramatic expansion of the concept of “harmless error,” which means that no matter how serious the errors made at the trial, the conviction will still be affirmed if the errors did not influence the jury’s verdict—that is, if the evidence of guilt is overwhelming.10 The upshot of this expansion is that in order to win an appeal in a criminal case, the appellate lawyer must cast doubt on his client’s guilt.

  Accordingly, I developed a technique, which has now been adopted by other lawyers, under which I tried to combine the appeal and habeas corpus aspects of the case into one challenge to the conviction. As soon as I am retained to do an appeal, I gather together a legal team that includes investigators, law students, and experts in other disciplines, such as medicine and forensics. (My students call this my Mission: Impossible team, based on the television show and movies in which the leader assembles a team of specialists to undertake “impossible” national security missions.) I direct my team to investigate the case from scratch. If the investigation then turns up new information suggestive of innocence, I quickly file a habeas corpus petition and do not wait for the outcome of the appeal. If the petition is denied, as petitions often are by the trial judge, I then try to combine it with the appeal so that the appellate court has a fuller view of the actual situation. I did this in the Claus von Bülow case. The court reversed that conviction not only because of errors made at trial, but because of new evidence of innocence that we had discovered after the trial. I have used this approach, often quite successfully, in many of my appeals, especially those involving homicides, where new evidence frequently emerges.

  I suspect that some of my clients, including some whose cases I have won, have been guilty. I know that some have been innocent. As to the majority, I am not certain. There is a myth that criminal defense lawyers always know whether their clients are guilty, because guilty clients confess in confidence. This has certainly not been my experience. Of the three dozen or so homicide cases in which I have been involved, only one client has confessed his guilt to me. I won that case on the basis of constitutional issues.11 I have never had a case in which I have helped to free a guilty client who then killed again. I tell my clients that under no circumstances will I represent them a second time.12

  The question I am asked most often—by students, friends, family, and strangers—is, Why do you or how can you represent such awful people who you know or suspect are guilty of committing horrible crimes, especially murder? (Nearly everyone seems to understand why, as a lifelong opponent of capital punishment, I would represent guilty defendants who were sentenced to death, in an effort to save their lives.)

  My initial answer—and not a particularly satisfying one—is “That’s my job.” All criminal defense lawyers represent some guilty defendants, for the obvious reason that most criminal defendants are guilty. And that’s a good thing. Would anyone want to live in a country in which most criminal defendants were innocent? That may have been true of Stalin’s Soviet Union, when the head of the secret police, Laurenty Beria, told Stalin, “Point me to the man, and I will find the crime.” It may still be true in today’s Iran, where dissidents are killed without any semblance of justice, or in other countries were defense attorneys are forbidden to defend clients with zeal. It is not true in the United States, which has a long tradition—dating back to John Adams, who defended the British soldiers accused of committing the Boston Massacre—of lawyers zealously defending even the most despised of accused criminals.

  A zealous American defense attorney has the opportunity to challenge the government’s case against his client at different points in the process, because the evidence of guilt must pass through several gatekeepers before a defendant can be imprisoned or executed. These include the arresting police officers; the assistant prosecutor, who makes the initial charging decision; the senior prosecutor, who approves that decision; the grand jury (in those jurisdictions that require a grand jury indictment),13 the initial judge, who must decide whether to dismiss the case; the petit jury, which must decide whether to convict the defendant; the trial judge, who must decide whether to grant a motion to acquit; and the various appellate courts that must review the conviction.

  It should come as no surprise therefore that, according to the Supreme Court, approximately 97 percent of federal convictions and 94 percent of state convictions are the result of guilty pleas,14 and that of those defendants who go to trial 93 percent are convicted.15 Think about that for a moment. It means that only a tiny fraction of Americans who are indicted or otherwise formally charged with crimes are acquitted. This is very different from the media perception, fueled by fictional accounts of Perry Mason–type lawyers who always get their clients off, and by real-life criticism of lawyers who do occasionally win cases for defendants who the public believe are guilty. One reason for this disparity between perception and reality is that a high percentage of Americans who are charged with crime are guilty. But another reason is that the current system—which rewards pleading guilty and punishes pleading innocent—places enormous pressure on defendants and their lawyers to cop a plea. I know of at least some arguably innocent defendants who have “chosen” to plead guilty in order to assure a relatively low sentence, rather than risk a much greater one if convicted. I even recommended such a tactic to one client, who rejected my advice, was convicted, and was sentenced to eleven years in prison instead of the one-year suspended sentence he could have received had he pleaded guilty to a “crime” he did not commit.

  Since I am primarily an appellate lawyer, by the time a case comes to me, it has passed through all but the appellate gatekeepers. The most obviously innocent defendants rarely make it past these gatekeepers, so
the ones who get to me are—as a statistical matter—very likely to be guilty. Nevertheless, I fight hard to try to get their convictions reversed. This is always an uphill struggle, since only a tiny fraction of criminal convictions are reversed on appeal. In the federal system, that number is in the 5 to 6 percent range.16 In the state system, it is even lower.17 In some state appellate courts, the rate of reversal in criminal cases is as low as 1 or 2 percent.

  A good lawyer can change these daunting odds, not because good lawyers are more likely to represent innocent defendants, but because having a good lawyer increases the chances of winning, whether the client is innocent or guilty. By challenging the prosecution at every turn, and winning close cases more often than bad lawyers, the zealous defense lawyer puts considerable pressure on prosecutors to bring charges only against those defendants who are likely to be convicted, even if defended zealously. This check on prosecutorial power would diminish if defense attorneys were willing to defend only obviously innocent defendants. So one important reason I zealously defend the probably guilty is to protect the possibly innocent from being falsely charged.

  It is also true, however, that in a system under which zealous lawyers are willing to defend the guilty as well as the innocent—and all the gray cases in between—the end result will be the acquittal of some guilty and bad defendants. I know, because I have helped bring about such results. But I have also helped to free some innocent defendants whom nearly everyone believed to be guilty.

  Although there have been cases throughout our history in which innocent people have been wrongly convicted, some even executed, our system still boasts of very high percentage of just outcomes—that is, cases where the guilty are convicted and the innocent acquitted. Obviously no one can reliably calculate the number or percentage of mistakes our system makes, but there are probably more cases where the guilty are acquitted than where the innocent are convicted. That is as it should be in a system that boasts “better ten guilty be wrongfully acquitted than even one innocent wrongly convicted.” Yet the public complaints seem to be louder and angrier when defendants who are perceived to be guilty are freed than when the possibly innocent are wrongly imprisoned.

  There have been periods during our history when lawyers were afraid to defend certain kinds of people—blacks in the South during Jim Crow, accused Communists during McCarthyism, suspected terrorists in the post-9/11 age. These were not our finest hours, and it would not be surprising if during these periods, the percentage of innocent defendants who were convicted increased (particularly among those in the despised groups).

  No lawyer can accept every client who seeks representation. We are entitled to pick and choose, within certain limits, among the cases offered us. We are also entitled to decide which cases to handle on a pro bono basis and for which to charge fees, although there is now a movement in some states to require lawyers to accept some pro bono cases. Over my own career, I have sought to strike a balance by charging fees in about half my cases and charging no fees in the other half. I do not treat paying and nonpaying clients differently, and my win-loss percentage is about the same in both categories.

  In a Massachusetts case a feminist attorney who specializes in representing women in divorce cases refused to represent a male nurse’s aide who was seeking financial support from his wealthy wife, who was a doctor. The lawyer told the man that she simply did not accept male clients in divorce cases, even if winning for the man would help the cause of women.18 A panel of the Massachusetts Commission Against Discrimination ruled “that an attorney [holding herself] out as open to the public may not reject a potential client solely on the basis of gender or some other protected class.”19 In other words, a lawyer may be a feminist, but not a sexist. The distinction may be subtle, but it is real.

  In the end, I hope lawyers will not need laws to tell them that they should represent those most in need of zealous advocacy, without regard to gender, race, ideology, economic situation, or popularity. Such an approach will make for a better legal system and a freer America.

  The one thing a lawyer is never free to do is accept a case and pursue it without zeal or adequate preparation. Although there are no specific criteria for measuring these qualities, there certainly are general guidelines. Being someone’s lawyer is different from being their friend. For a friend or relative, you may be willing to sacrifice your life, your liberty, or your fortune. You need not—and should not—do that for a client. Zealous advocacy has limits imposed by law, ethics, and common sense. We know what unzealous representation means. Just look at some of the capital case lawyers in Texas! Several fell asleep during trial. (In one capital case that I appealed, the lawyer fell asleep during the trial, but that was his finest hour, because when he was awake he hurt his client by telling the jury that he didn’t believe his own client’s testimony!)20 (The same lawyer—a former Klansman representing a black defendant accused of killing a white state trooper—refused to conduct any investigation in black neighborhoods.) Many judges prefer underzealous to overzealous lawyers. That’s why they appoint the former—who make their job easier, if they define their job as sentencing as many defendants as possible to death. Overzealous lawyers are a pain in the ass to some judges. I know. I am one. We make their job harder by contesting every issue, demanding every right, and disputing every prosecutorial allegation, so long as it is in the best interest of the client. That is the key to defining appropriately zealous advocacy: It must always be in the legitimate interest of the client. Its purpose is not to make you feel good or virtuous, but to help the client—whether innocent or guilty—win (or get the best result) by any ethical and lawful means.

  I’m proud to be a criminal defense lawyer who stands up to the government and defends people without regard to their possible guilt or innocence, though it sometimes pains me to win cases on behalf of awful people who have done terrible things. I don’t celebrate such victories, though I understand—as an intellectual matter—that the occasional wrongful acquittal of the guilty is the price we pay for preserving the important principle that it is better for the guilty to be acquitted than for the innocent to be convicted. The occasional conviction of the innocent is the price we pay for having a necessarily imperfect justice system, run by fallible human beings, but it is a very high price that we should do everything to avoid, or at least minimize.21

  “Don’t you ask your clients whether they’re innocent or guilty?” is another common question. I don’t, at least not directly, because the guilty ones would simply lie, and I wouldn’t know enough to believe the innocent ones. The nature of my initial conversation with a client will depend on the stage of the case. If a client seeks my help before trial, it is essential that I know whether he is guilty or innocent (or somewhere in between). Without knowing what actually happened, I would not be able to advise my client whether to cooperate with law enforcement, consent to a search, testify, or try to make a plea bargain. If a client retains me after he has been convicted, it is less important for me to know whether he is innocent or guilty, because the appeal will be based on the trial record, which cannot be changed. I would still like to know, because the facts may influence my decision whether to conduct further investigation and file additional motions and petitions for habeas corpus.

  The way I generally approach the issue of innocence or guilt is to ask my client what his worst enemy would say about him or what the most damning evidence against him might be. In this way, the client can, in effect, tell me what probably happened, without acknowledging his own guilt.

  One reason why defendants so often lie to their lawyers is that they think a lawyer will work harder for a client he believes is innocent than for one he knows is guilty. That may well be true—at least for some lawyers. I don’t think it is true of me, but I can’t be absolutely sure. Even so, most lawyers are experienced enough to regard a self-serving claim of innocence with suspicion.

  In an abundance of caution, I initially presume that all clients are probably gui
lty. I know this violates the spirit of “the presumption of innocence,” but it is essential to protecting the rights of the client. If a lawyer too quickly presumes his client innocent, he is more likely to make a mistake, such as allowing the police or prosecutor to speak to the client or search his house or office. Just as a cautious doctor should initially presume his patient sick—treating a chest pain in an elderly patient as a possible coronary event rather than indigestion—so too a cautious lawyer should presume that his client “did it,” rather than that he was “framed.” It follows from this presumption of guilt that the defendant should not speak to law enforcement officials or allow them to conduct searches unless and until that presumption has been overcome by hard evidence of innocence and clear indications that there is more to gain than to lose by such cooperation.

  I see my job as trying to reverse the presumption of guilt—the realistic presumption shared by prosecutors, judges, and jurors despite the theoretical presumption of innocence mandated by the Constitution. Once a defendant has been indicted, the burden of proof rests on him, in practice, even though the judge will instruct the jury that the prosecution always bears a heavy burden of proving guilt beyond a reasonable doubt. The common view is that if the defendant were actually innocent, he never would have been arrested, indicted, and put on trial. “Where there’s smoke …”

  This perception is even more powerful after a defendant has been found guilty by a jury and is appealing the conviction or challenging it by a writ of habeas corpus. At that point he has lost the constitutional presumption of innocence, and everyone in the system presumes him guilty both as a matter of law and of fact. That’s when I generally come into a case.