Taking the Stand

by Alan Dershowitz

  Israel Philharmonic

  Shortly after the O. J. Simpson case, my wife and I were attending a concert at Boston Symphony Hall featuring the Israel Philharmonic and the violinist Midori. When the concert was over, a woman raced down the aisle. My wife was sitting on the aisle; I was one seat in. We were giving Midori a standing ovation. We thought the woman was heading toward the stage to give flowers to Midori. She wasn’t. She pushed passed my wife and starting hitting me, screaming, “Murderer, you shouldn’t be allowed to listen to music! You are responsible for the deaths of Nicole Simpson and Ron Goldman!” My wife, who is taller, younger, and stronger than me, shielded me from the woman’s blows, blocking her from getting to me. We quickly left the hall, but later learned that the woman asked the people sitting near us to be witnesses to the fact that I attacked her. They all told her they would be witnesses to her attack on me. I bring Carolyn with me everywhere. She is my protector.

  Being well known and recognized from television frequently results in people thinking they know you and that you know them. This often creates an awkward situation. Someone once came up to me at an airport and said, “I know who you are!” I extended my hand and said, “Hi, I’m Alan Dershowitz.” She pulled her hand away quickly and said, “No, I know who you are.” Clearly she had confused me with someone else she had seen on television. People who know you from the media sometimes think they know what your ideas are and what you stand for. They become “disappointed” when you depart from the image they have of you. I receive many letters expressing disappointment in my views or in my decision to take on a particular case. My standard answer is that my wife, my children, my late mother—all have the right to be disappointed in me, but a stranger has no such right. “You can hate me, despise my views, or disagree with me, but you do not have sufficient claim on me to express disappointment.” Nonetheless, many do, and they express it with passion and deep feelings of personal affront. And when they turn against you, they do so with a fury more typical of family arguments than disagreements between strangers.

  Following the jury acquittal of O. J. Simpson, in particular, I received a barrage of hate mail from Jewish people who said they had admired me for having written my book Chutzpah but had become “disappointed” in me for representing Simpson “against the Jewish man he had murdered.” “Whose side are you on?” asked one writer. Another threatened to “do to your mother what your client did to Ron Goldman.” One disappointed fan sent me his copy of Chutzpah defaced with a swastika.

  Hate and Love Mail

  One disturbing aspect of fame is hate mail, which I make a point of exhibiting on my office door, so students will understand what they face if they become public figures. Much of my recent hate mail has been anti-Semitic, because I am identified with support for Israel. Among them:

  Dear Dirtyshits,

  Why don’t you go spill your filthy Jew guts for Israel instead of demanding that real American men and women spill theirs? Oh, I forgot—kikes are the Chosen People and all others should give it up for them. Never forget—MILLIONS of us hate you kike bastards and would love to see all of you herded into gas chambers. Hitler’s crime was leaving the job half done.

  Alan Dershowitz, you sir are a zionist dick sucking FASCIST, you pig!!!!!!!

  Alan,

  You’re a money-grubbing piece of shit Zionist who should’ve been taken out during the Third Reich. On behalf of the silent majority, LEAVE AMERICA!

  The letter was signed with a large swastika.

  Some of the hate mail I receive regarding Israel comes from right-wing Jewish extremists who believe my support for a two-state solution constitutes disloyalty to the Jewish people:

  Professor, any Jew who voted for Obama is asking for a second holocaust & the destruction of Israel and Jews. I hope you are satisfied with your complete & utter sellout of the Jewish people. You, sir, are a Judas.

  Another:

  You remind me of the Jews that worked for the Nazi’s in the death camps. DROP DEAD YOU PIECE OF SHIT!!!

  When I was publicly more identified with the defense of O. J. Simpson, much of my hate mail came from Jews. Several of them reflected anti-Semitic tropes:

  As a Holocaust survivor, I am ashamed you are a Jew. You never met a $ you did not like. You fulfill the stereotype of a Jew and I declare you: not Jewish.

  Another:

  Dear lying Jew (remember, I’m Jewish):

  Congratulations—a murdering butcher is on the street. If the nigger is so innocent, then he should have no problem speaking. May you catch cancer.

  That charming note was from a practicing dentist and was written on his prescription pad. Another of this genre:

  I hope I can still be alive when I hear someday that you have terminal cancer or even better, that you are a victim of a vicious crime which would be so appropriate for “dreck” like you.

  My support for civil liberties and for Israel has also brought me positive responses, such as a letter from Kirk Douglas saying, “I’m a fan of yours,” a call from Herman Wouk telling me how much he supports my positions on Israel, several supportive calls from Barbra Streisand, a letter from Justice William Brennan, and admiring notes from President Clinton, President Obama, and several prime ministers and presidents of Israel.

  Because I am a controversial lawyer who is both admired and detested, I feel obligated to caution my clients before they retain me. Accordingly, I often begin my discussion with a new client with “the warning”:

  You should think hard before deciding to retain me as your lawyer. I come with baggage, some positive, some negative. People tend to either love me or hate me. Almost no one is neutral. When I become involved in a case, it tends to raise its profile in the media. Sometimes that’s an advantage, sometimes a disadvantage. Prosecutors sometimes work harder when I am their opponent, because they think that beating me in court will be a kind of trophy.

  As a result of this speech some clients wisely choose to retain other lawyers. Those who pick me generally fall into several categories: clients who need more attention brought to their case; clients who have lost hope in more conventional legalistic approaches to the law; clients whose cases have already achieved maximum notoriety; and clients who have heard, quite erroneously, that I never lose.

  I am also quick to point out to clients that no lawyer can promise them success, that all I can promise them is my best effort; and that—to paraphrase the offering pamphlets of money managers—past performance is no guarantee of future success.

  I have also lost some clients because I told them what they did not want to hear—that the likelihood of success with their appeal is very low, that certain legal arguments will not work, or that their best hope is to try to make a deal. A good lawyer must always be ready to be fired by his clients for telling them the truth rather than acting as a cheerleader to a lost cause. But a good lawyer can sometimes turn what looks like a lost cause into a winning case, especially if there is new evidence or if the old evidence has not been correctly analyzed.

  Because the death cases that brought me fame involved science and technology, many of the cases that followed also involved these disciplines. Defendants wanted me to use science in their cases to secure reversals of their conviction. One such case bore such an eerie resemblance to the von Bülow case that at first I thought it might have been a “copycat crime.”

  “MY FATHER DIDN’T KILL MY MOTHER”: THE CASE OF DR. WILLIAM SYBERS

  The call came from a young woman pleading with me to take her father’s appeal. He had been convicted of killing her mother by injecting her with a drug that stops the heart from working. “It’s just like the von Bülow case,” the daughter insisted. “My father didn’t kill my mother. He didn’t inject anything into her. She died of natural causes.” (No one seeking my help ever tells me their case is “just like” O. J. Simpson’s!)

  When the daughter of an alleged murder victim is so certain the defendant is innocent, even when the defendant is her father,
the case is certainly worthy of a hard second look. I agreed to provide that look.

  My initial review was not encouraging. There was a needle mark on the victim’s arm that was consistent with an injection. Moreover, a subsequent lab test had revealed traces of the metabolite of a drug called succinylcholine—a paralytic agent capable of stopping the heart. Finally, the defendant was having an affair, and he was a medical doctor—indeed the medical examiner of his Florida county—and thus had the motive and knowledge necessary to stop his wife’s heart. All the classic components for homicide—motive, opportunity, means, and scientific evidence—were present, and they pointed in the direction of guilt. I could easily understand why a jury would convict. And it did convict by a unanimous vote, coming very close to imposing a death sentence on Dr. William Sybers. Instead, he was sentenced to life imprisonment.

  The Sybers case had begun more than a decade before I was called. Kay Sybers had died in her sleep on May 30, 1991. She was fifty-two years old and in good health, though she had suffered from allergies for which she took medication. An autopsy was performed, but no cause of death could be determined. One of the investigators did, however, think she saw a needle mark. The original death certificate read: “sudden unexpected death due to undetermined natural causes.”

  Rumors immediately began to circulate that Dr. Sybers was having an affair with a lab technician, and an investigation was begun. An officer was dispatched to the Sybers home, and the grieving husband was asked to describe his wife’s final night. He told the investigator that at about 4 A.M. his wife awoke with chest pains. She had taken some medication, so Dr. Sybers decided to draw some blood to give to her doctor the next day. He did not succeed in drawing the blood, and he threw the syringe into the garbage. The syringe could not be found because the trash had already been collected. This all seemed suspicious and the investigation continued. After more than a year, the state attorney reported that he had found no physical evidence that Dr. Sybers had killed his wife. The case was closed.

  But a year later the Sybers’ twenty-seven-year-old son killed himself on his mother’s birthday. Shortly before he shot himself, Tim was talking on the phone with a friend about his mother’s death and the suspicion that his father might have killed her. Tim’s suicide resulted in a reopening of the investigation. The case was now on “the front burner.” It was also on the front pages of local newspapers.31

  Investigators began to focus on the drug potassium, which in large enough doses can kill and which is difficult to detect in a body. It was a perfect murder weapon, especially for a sophisticated medical examiner with extensive experience in causes of death.

  Bowing to pressure from the media, the governor of Florida appointed a “special prosecutor” from a different county to investigate the case. He had only one job: to prove that Dr. William Sybers had murdered his wife. With the single-minded determination of an Inspector Javert, the special prosecutor set out to get Dr. Sybers.

  On February 18, 1997, he had Sybers indicted for capital murder. The indictment alleged that he had murdered his wife with an “unknown substance.” There was no hard evidence of any substance, but the prosecutor was confident he could find it. It was an example of indict first—and then search for the evidence later.

  The prosecutor was convinced that Dr. Sybers had injected his wife with potassium and that a thorough analysis of her tissues, preserved from the autopsy, would prove that theory. The problem was this theory was based on “junk” science. A “test” that purported to show high concentrations of potassium in the preserved tissues was not scientifically valid. It could not be replicated by other scientists, and the methodology had never been peer-approved. Accordingly, one court denied the petition for exhumation of Kay’s body, and another court ruled that the potassium evidence could not be presented to the jury. The theory that Dr. Sybers had used potassium as the murder weapon was now dead.

  The special prosecutor was left with a capital indictment, but no theory, no evidence, and no weapon. So he set out to find a new murder weapon. He turned his attention to the drug succinylcholine. The paralytic drug itself quickly disappears from the human body, but a scientist assured him that a by-product of the drug—succinylmonocholine, or SMC—could be detected in tissues even years later by a sophisticated test. That test was then conducted, and it purportedly found traces of SMC in Kay’s tissues. This time the test results could be replicated by the famous FBI lab, although with slight variations. The prosecutor had his smoking gun—his murder weapon. And it had been certified by no less an authority than the Federal Bureau of Investigation.

  The same judge who had excluded the potassium theory as “junk science” now concluded, after an extensive hearing, that the succinylcholine theory was based on real science and could be presented to the jury.

  The prosecutor not only now had science on his side, he also had a sex motive that would surely grab the jury’s attention, even if it were to become bored by the highly technical scientific evidence.

  The state’s scientific case gave rise to the usual clash of experts. The two primary witnesses for the prosecution were the scientist who had conducted the test and the FBI chemist who had replicated it. The defense introduced experts who opined that since the body had been embalmed before autopsy, any chemical analysis could have been contaminated by the embalming fluid.

  The jury, after only a few minutes of deliberation, convicted Dr. Sybers of first-degree murder. He was sentenced to life. His only hope of experiencing freedom was an appeal, or a new trial motion, which my brother and I were retained to prepare and argue.

  My brother, Nathan, four years my junior, has long been my secret weapon. After graduating from NYU Law School, he served as an appeals lawyer in the New York Legal Aid Society, where he argued hundreds of criminal appeals. Then he worked in a large law firm and at the American Jewish Congress, before starting his own boutique appellate law firm. His firm includes two other excellent appellate lawyers who are his partners, as well as several associates. I work on many of my most difficult cases with the firm—Dershowitz, Eiger and Adelson. Their work proved invaluable in the Sybers case, as it did in many others.

  We began by reviewing the scientific evidence, as we had in the von Bülow and Simpson cases. We discovered massive incompetence and sloppiness on the part of the private lab that had “found” traces of SMC, and serious problems in the FBI lab as well.

  We were fortunate that among the judges assigned to hear our appeal, one—Judge Peter D. Webster—had a background in chemistry. I had learned of this when inquiring—as I always do, with any appeal in which I’m involved—about the judges who would be hearing the appeal. I decided to direct my argument to this judge. I wasn’t sure whether his background would make him more or less skeptical regarding scientific evidence, but I knew he would be interested in the issue, and it was my job to persuade him to apply the principle, articulated by the courts over the years, that “novel scientific evidence” can be admitted at a criminal trial only if it is “sufficiently established to have gained general acceptance” by the scientific community.32 He immediately glommed on to that principle. As he was later to put it: “A courtroom is not a laboratory, and as such is not the place to conduct scientific experiments,”33 and “doubts as to admissibility” of such evidence should be resolved “in a manner that minimizes the chance of a wrongful conviction.”34

  With these salutary principles in mind, we set out to convince the appellate court that the “science” on which Sybers had been convicted was not science at all, but was the result of an unscientific effort by an overzealous prosecutor to discover, or if necessary concoct, “evidence” that would confirm his vendetta against Dr. Sybers. We were convinced, based on our research, that the “finding” of SMC in Kay’s tissues was the result of a classic false positive, based on contamination. We presented our new evidence of massive contamination, along with our legal issues, to the appellate court.

  The appellate argu
ment turned into a seminar on the scientific method. I began as the “teacher” but soon became the “student” when I realized that Judge Webster knew at least as much about the science as I did. He quickly made the argument we had laid out in our brief his own, asking questions that appeared calculated to persuade the other judges. Realizing that it is always better to let a judge make your argument for you, I deferred to his expertise and agreed with the thrust of his questions.

  A few months after the argument, the court published its decision reversing Sybers’s conviction, on the ground that the prosecution had failed to prove the scientific validity of its theory.35

  We later learned that the special prosecutor had information that should have led him to know or at least suspect that the test results were at best highly questionable and at worst flat-out false.36 Yet he did not disclose this information to the court or to the defense. We also learned that a fellow prisoner (who had murdered a prosecutor) was trying to secure his freedom by claiming that Dr. Sybers had “confessed” to him that he had murdered his wife. The prosecutor was trying to use that “confession” against Dr. Sybers, despite his knowledge that the prisoner had made several similar claims—all proved to be false—against other fellow prisoners in an effort to buy his way out of prison. We filed a complaint with the appropriate authorities, since such conduct on the part of the prosecutor raises grave ethical issues. The prosecutor then filed a countercomplaint alleging—quite absurdly—that the very act of filing a complaint against him constituted misconduct. This tactic is only one of the ways overly aggressive prosecutors discourage lawyers from complaining about their ethical violations. Nothing came of either complaint,37 but when President Obama was considering appointing this prosecutor to become a United States attorney in Florida, we notified the White House and the Senate Judiciary Committee of his ethical lapses and he was passed over for the job.38 (The White House reportedly claimed he was rejected for other reasons.)