The odds against reversing a criminal conviction have always been daunting, because the vast majority of those convicted are factually guilty, and appellate courts are reluctant to free guilty defendants on the basis of “legal technicalities,” even when such technicalities are rooted in the Constitution.
For example, when I signed on to handle the appeal of Claus von Bülow in 1982, the media was understandably skeptical. New York magazine quoted “one of the country’s leading criminal lawyers” predicting that I would lose the appeal: “He’ll add something useful and do a brilliant analysis of the record. He isn’t going to make it. Of some guys you can say ‘That’s a patient he isn’t going to save. He can only make him more comfortable.’ ”22 Esquire magazine commented that the von Bülow appeal “looked like another ritualistic exercise in civil libertarian dogma” that “would churn through the courts simply because there was money available and a set of arguments that could be made, rather than because [I] had any real sense that justice had in some way gone astray.”23 And one commentator snidely observed that von Bülow’s “recruitment of Harvard Law Professor Alan Dershowitz shortly after his conviction would tend to reinforce” the view that Claus von Bülow “was no longer protesting his innocence, merely the methods used to catch him.… Dershowitz enjoys a wide reputation as a last resort for convicted criminals, being especially keen at finding legal loopholes that render his clients’ convictions unconstitutional.”24
It is precisely because this perception is so widespread that I always try to find an “innocence” argument to present to the appellate court, along with the constitutional and other legalistic arguments. Often the court will use the “hook” of the legal argument on which to hang its decision to reverse, but it will be more motivated to “find” that hook if the judges have doubts about the defendant’s factual guilt. It is my job to find and plant those seeds of doubt, based, whenever possible, on scientific or forensic evidence.
O. J. SIMPSON AND CLAUS VON BÜLOW
My two most famous—infamous?—cases involved homicide: the O. J. Simpson double murder prosecution and the Claus von Bülow assault with intent to kill (or attempted murder) prosecution. I have written books about both these cases,25 and I will not repeat what I wrote, except to highlight how important it is for lawyers, especially those involved in complex homicide cases, to master the science, to be able to question the other side’s scientific conclusions, and to accept nothing on face value.
I agreed to join the O.J. Simpson defense team, despite my earlier public statements that the evidence pointed to him as the likely killer,26 because Simpson was facing the death penalty, and I have a policy of generally accepting capital cases.
Eventually the district attorney decided not to seek the death penalty. This was surprising, because if Simpson did, in fact, murder his wife and the man she was with, the death penalty would seem appropriate under the usual criteria for imposing it. The killings seemed to be in cold blood, especially brutal, and there were two victims, one of whom may have been killed because he was a witness. The fact that the district attorney opted against it, demonstrated, once again, the entirely arbitrary nature of decision making as it relates to who is and who is not subjected to capital punishment. The decision not to ask for the death penalty against O. J. Simpson was especially surprising since prosecutors often seek capital punishment in order to gain a tactical advantage at the guilt or innocence phase of the trial. This advantage derives from the fact that in death penalty cases, the prosecutor is entitled to a “death qualified” jury consisting of twelve people who have no conscientious objection to capital punishment and would be willing to sentence someone to death. Such jurors, according to jury experts, tend to be proprosecution in general and more likely to vote guilty. Prosecutors know this and ask for the death penalty even in cases not warranting it, simply to improve the chances of securing a conviction. Once they get their proprosecution jury, they sometimes decline to seek the death penalty. Early in my career, I was retained by F. Lee Bailey to prepare a petition for certiorari to the Supreme Court challenging this practice. The Supreme Court granted my petition for review, but then after oral argument by Bailey, the justices denied the review over a strong dissent.27
In any event, having agreed to join the Simpson defense team, I couldn’t abandon my client, even though the death penalty was now off the table. Simpson still faced life imprisonment without the possibility of parole—for some a fate worse than death.
My role in the case was to prepare and argue complex legal motions and to help formulate the scientific, or forensic, defense. I would also argue the appeal in the event of a conviction. Simpson called me his “God forbid” lawyer. I recommended that Barry Scheck and Peter Neufeld, who were experts in the relatively new science of DNA, be added to the team.
O.J.’s Glove
I happened to be on the way to Australia to deliver a talk. There was a stopover in Los Angeles and I decided to pay a visit to the O.J. trial. My usual role was to provide legal briefs from my office in Cambridge. On two or three occasions I appeared in court to argue motions, but these appearances were rare and episodic. On this day, I had no real business to conduct in the courtroom, but when my son picked me up at the airport, I suggested that we drop by and say hello and join the legal team for lunch. My son turned on the radio, which was carrying the trial live. The man on the witness stand was an expert in gloves. He was testifying in the most tedious manner, about the stitching in gloves. We practically fell asleep listening. Elon begged me not to go to the courthouse, but I insisted. Upon entering the courthouse, I sat down next to the lawyers, and my son sat in the spectator section. Within five minutes of our appearance in court, Prosecutor Darden got up and asked to have O.J. try on the glove. It was about the dumbest ploy any prosecutor could have attempted, since under California law, he could have insisted that O.J. try on the glove outside the presence of the jury, before he decided to conduct this experiment in front of the jury. But Darden was not one for legal subtlety. O.J. walked right next to me, tried on the glove, and in the most dramatic moment of the long trial, stood in front of the jury, and showed them that it didn’t fit. He even testified, “It’s too small.”
Shortly after this dramatic moment, the lunch recess was called, and I went to O.J.’s holding cell behind the courtroom and told him that they might ask him to try on the glove without the latex under-glove he wore during the courtroom experiment. He assured me that it still wouldn’t fit.
My grandmother would have said, “It was bashert”—ordained—that I would be in the courtroom just at the moment that led to the famous closing argument “If it doesn’t fit, you must acquit.”28
After extensive investigation, we were able to demonstrate, by means of sophisticated scientific evidence, that the police had planted O.J. Simpson’s blood, along with the blood of his alleged victims, on a sock found in Simpson’s bedroom after the crime. The blood on the sock had high levels of a chemical that is not found in human blood, but that is added to vials of blood to prevent it from coagulating. The bloodstains on the sock also proved that the blood had been dripped on it from test tubes while the sock was lying flat, rather than splattered on it while it was being worn at the crime scene. There were mirror-image stains on all four surfaces, which meant that the blood had flowed through the flattened sock, establishing that it was not being worn at the time the blood made contact with it. Had it been splattered while being worn, there would have been mirror-image stains only on two surfaces—the outside and the inside of the sock part that was splattered—but not on the two other surfaces, which would have been blocked by the wearer’s leg. (We discovered this before the popular television show Dexter made the public familiar with “blood splatter analysis.”) The jurors were convinced by this and other evidence that the police had dripped the blood onto the sock from vials, to make it appear that the sock Simpson was wearing during the murders had been splattered with blood at the crime scene. This led the
jurors to believe that the police were trying to frame Simpson for a murder they believed he had committed, and that the veracity of their testimony and other evidence could not be trusted. They acquitted Simpson of killings for which a subsequent civil jury (with different lawyers and different evidence) found him financially liable.
Marsha Clark Without Underwear
Marsha Clark may not have been the most sophisticated prosecutor I ever encountered, but she certainly was among the most resourceful, employing everything she had to her advantage. As Johnnie Cochran was about to make his closing argument, Marsha Clark went over to him and whispered, “When you’re up there, I want you think of only one thing: I’m not wearing any underwear.” When Johnnie Cochran told me this story, I was skeptical. So I called Marsha Clark and asked her. She told me, “Absolutely true.” I asked, “Which part of it was true: that you told him you weren’t wearing any underwear or that you weren’t, in fact, wearing any underwear?” She replied, “That’s one thing you’ll never know.”
My expertise in the science of disproving murder had been at the center of my earlier famous case involving Claus von Bülow. Von Bülow’s original trial lawyers were not able effectively to challenge the prosecution’s evidence that Sunny von Bülow’s coma was caused by an injection of insulin, that high levels of insulin were found in Sunny’s blood, that traces of insulin were found on a needle in a bag that belonged to her husband, Claus, and that a vial of injectable insulin had been found in Claus’s bag by Sunny’s maid. On appeal, and in a motion for a new trial based on newly discovered evidence, we disproved each of these pillars of the prosecution case. We demonstrated through our own experts that Sunny’s coma was caused by the oral ingestion of barbiturates, rather than by an injection of insulin; that there were no high levels of insulin in Sunny’s blood; that the alleged traces of insulin on the needle were the result of a false positive reading; and that the maid could not have seen a vial of insulin in Claus’s bag. The Rhode Island Supreme Court reversed the conviction and ordered a new trial,29 at which the jury, after hearing the new scientific evidence, quickly acquitted von Bülow.
Claus von Bülow
After we won the case, Claus decided to host a dinner party. I told him I would not come if it was a victory party, since I have a policy of not going to victory parties of criminal defendants. He assured me that it was merely a dinner for several interesting people, and that among his guests would be the novelist Norman Mailer. When the dinner began, Claus regaled everybody with stories from the trial, and I explained why the evidence pointed to his innocence. About halfway through the dinner, Mailer grabbed his wife’s arm and said, “Let’s get out of here. I think this guy is innocent. I thought we were going to be having dinner with a man who actually tried to kill his wife. This is boring.”
In fact, many of my most exciting cases involved very boring people, though Claus was not one of them. When the movie Reversal of Fortune came out, Claus refused to go to see it, insisting that he would never watch Jeremy Irons play him. Several months later I was having lunch with Claus and a woman friend. After about an hour of conversation with me, his friend turned to him and said, “Now that I’ve met Alan, I believe that Ron Silver really didn’t do him justice. He overplayed him.” Claus immediately shook his head in agreement, saying, “You’re right, my dear, I too think he overplayed him.”
The book and film Reversal of Fortune brought the issue of scientific defense to a wide public audience, and I became the go-to lawyer in several subsequent cases.
These cases included some involving clients whose celebrity brought me a considerable amount of fame and notoriety. During the 1980s and 1990s, I had so many high-profile cases, several of them at the same time, that my son Elon commented, “Every time I see a case in the newspaper, I know you are going to get a call.” This was not far from the truth, though I had to turn down the vast majority of clients I was asked to defend, including some very wealthy and prominent men and women. I also appeared on TV and radio more frequently, sometimes defending my clients in the court of public opinion, other times commenting on high-profile cases in which I was not involved.
People began to recognize me on the street. I received an enormous volume of mail, some praising, some damning me, my clients, and my approach to defending the accused. Journalists began to write about me—I became newsworthy (and gossip-worthy). My name began to appear in novels,30 TV shows, New Yorker cartoons, New York Times crossword puzzles, Trivial Pursuit games, and other forms of popular culture. I was offered a “shoe contract” to pay me to wear to court a brand that the company claimed looked formal but felt comfortable. I declined. I was even included on Boston magazine’s list of “Best Dressed Bostonians,” despite my penchant for buying clothing at Filene’s Basement. I had mixed feelings about my celebrity, enjoying the positive aspects of it, such as getting invited to cultural and sports events, and bemoaning the lack of privacy that follows from becoming recognizable.
My first negative experience with fame came in the form of a bill I received from a furniture company for office equipment rented by a law firm called Cramer and Dershowitz. I was curious whether there was such a firm, so I drove to the address in Somerville. Sure enough there was a big sign that said CRAMER AND DERSHOWITZ—ACCIDENTS, TRAFFIC TICKETS, DIVORCES, INSURANCE CLAIMS, TAX PROBLEMS AND NOTARY PUBLIC. I went up to the second-floor office and asked to see Mr. Dershowitz. The woman behind the desk said, “Nobody gets to see the professor. He works at Harvard. Mr. Cramer will see you, and then he will send the case over to Professor Dershowitz to write the briefs and other legal documents.” She told me that Cramer was “in court” and should be back soon. I waited. When Cramer walked into the office and saw me, he turned white. I immediately recognized him. About a year earlier, I had bought a Volvo from him at a showroom a few blocks from the office. He quickly ushered me into his office, which had a large cropped photograph of him and me standing next to the Volvo I had bought. He began to sob and pleaded with me not to send him to prison. He promised he would close up the office and go back to selling cars. I told him I would have to think about it.
Concerned that he might have made representations about me to some court, I immediately notified the bar association about the scam, but they told me they couldn’t do anything about him “because he’s not a lawyer.” Nor, technically, was he practicing law, as I soon learned. His “practice” was limited to settling automobile accidents with insurance companies and other matters that did not actually require him to appear in a courtroom, despite his secretary’s cover story. But he was clearly holding himself out to be a lawyer and my partner. This constituted fraud, both on his “clients” and on me.
Being soft-hearted, I decided not to press charges, on the condition that Cramer notify all of his “clients,” past and current, that he was not a lawyer and that he had no association whatsoever with me. When I checked back several weeks later, the office was closed, the sign had been taken down, and he was back to selling cars, this time on Long Island.
Another manifestation of my growing name (but apparently not face) recognition came in the form of a romantic letter from a woman whom I had “picked up” in a bar the previous week and taken away for a weekend in Maine at my ski lodge, where we made love in front of a roaring fire. She described the wonderful time we had had and asked if we could do it again sometime. The only problem was that I have no ski lodge in Maine and I had been in New York with my wife and daughter that entire weekend. Putting two and two together, my wife and I figured out that someone had impersonated me in his, apparently successful, effort to woo and seduce a woman. I’m happy that the experience was a good one for her, because I can only imagine the consequences if the “Alan Dershowitz” she’d gone to Maine with had treated her poorly.
Another example of name recognition occurred when a judge in Arizona allowed a man who claimed to be the object of a mafia murder contract to change his name. That sounds reasonable enough, but he wanted to
change it to Alan Dershowitz. Without notifying me and giving me an opportunity to object, the judge allowed the man to take my name. I wrote to the judge advising him that the next time one of my clients had to go into the “witness protection program” and assume a new identity, I would recommend he take the judge’s name.
All of these mixed experiences with fame were more than made up for by a positive experience I had when I was invited to address a singles breakfast, sponsored by the Combined Jewish Philanthropies of Boston, on the subject of “the changing nature of human rights.” I was single at the time, and as soon as I got up to speak, I spotted a beautiful woman near the back of the audience. Whenever I speak, I try to focus on one or two audience members in order to gauge their reaction. This time I focused only on her. As soon as the event was over, I bolted to the back of the auditorium to get her name and phone number. All I managed to get was her name. Immediately upon returning home, I looked up “Carolyn Cohen” in the phone book and found five of them. I called the first one and asked if she would be interested in having dinner with me. She said she would but that she had to be back to the nursing home by 9 P.M. The second Carolyn Cohen also said she’d be happy to have dinner with me, but she wondered if she could bring her husband along. I finally reached my future wife on the third phone call. During dinner I mentioned that this was the first time I had actually obtained an advantage from being well known. Carolyn quickly responded, “I had never heard of you when I decided to go to what sounded like a talk on an interesting subject.”
Carolyn never allows my recognition to go to my head. Once, after we dropped off our daughter at summer camp in rural Maine, we stopped at a local antiques store on the way home. The owner looked at me and said: “It’s a pleasure having you in our shop, Mr. Dershowitz.” I whispered to Carolyn, “They even know me in Maine,” to which she quickly responded, “That’s because you didn’t take off the name tag they gave you in camp,” as she removed the HELLO, I’M ALAN DERSHOWITZ tag from my lapel.
Taking the Stand Page 31
