Taking the Stand

by Alan Dershowitz

  Dr. Sybers married the lab technician with whom he had been having an affair.39 Every Christmas, the couple sends me, my brother, and the lawyers in his firm a card thanking us for saving Dr. Sybers.

  THE BINION CASE: MURDER OR DRUG OVERDOSE?

  The classic thriller case is a whodunit. The fact of a murder is clear, as it was in the O. J. Simpson case. The only question is who committed it. “Who Killed Cock Robin?,” as the old ditty asks.

  Many of my homicide cases have not been whodunits, but rather wasitduns—was anything criminal done at all? Was the dead (or comatose) body the result of a criminal act, or the result of natural causes, self-induced harm, or accident?

  That was the issue in the von Bülow and Sybers cases. It was also the question presented when Ted Binion, the owner of the Binion Horseshoe Casino in Las Vegas—the home of the World Series of Poker—was found dead in his home on September 17, 1998.

  Binion’s live-in fiancée, Sandra Murphy—a young sometime exotic dancer—and her equally young lover, Richard Tabish, were accused of murdering Binion, by an unusual means harking back to the days of Sherlock Holmes. Dr. Michael Baden, one of the world’s leading forensic pathologists (and a friend), concluded that Binion had been “burked” to death.

  The term “burke” derives from two notorious nineteenth-century Scottish murderers, who killed their victims in order to provide fresh cadavers to medical students for research. The case was so notorious that it became the subject of a short story, “The Body Snatchers,” by Robert Louis Stevenson,40 and of several films, including one that starred Boris Karloff and Bela Lugosi41 and “Burke and Hare”42 directed by my client John Landis. Burke and Hare compressed the chest of their victims, smothering them to death, without leaving bruises.

  Dr. Baden opined that Sandra Murphy and her lover had done this to Binion.43 And their diabolical plan—if there was such a plan—worked, at least for a while. Since it was well known that the high-living Ted Binion was a heroin addict, and since there was evidence that his drug supplier had delivered black tar heroin just hours before his body was found, the police concluded that this was just another Las Vegas drug overdose, albeit by one of the city’s most famous celebrities.44 Since no crime (other than charges relating to the drugs) was suspected, the home was not declared a “crime scene,” but an autopsy the next day noted various marks on the body and the examiner photographed them. It was these marks that led Dr. Baden to conclude that Binion had been burked to death. Other medical experts also concluded that Binion had been murdered, but not by “burking.” Their theory was that he had been forced to swallow a deadly mixture of heroin, Xanax, and Valium—a cocktail of death.45

  In addition to the scientific evidence, Binion’s estate lawyer testified that on the day before his death, Binion had said to him: “Take Sandy [Sandra Murphy] out of the will if she doesn’t kill me tonight. If I’m dead, you’ll know what happened.”46 It was the stuff of soap operas, and several television shows treated it as such. But it was a real case, the outcome of which would determine whether Sandy Murphy would spend the rest of her life in prison.

  The prosecution had evidence of motive, means, and opportunity, and they charged Murphy and her lover with “murder by suffocation and/or poisoning.” At trial, they presented what I later characterized as a “multiple choice” prosecution:47 The jury could choose either burking or poisoning; they did not have to agree on the means used to murder Binion, as long as they all agreed that “his death was caused by a criminal agency.” Nor did they have to tell anyone which theory they had chosen if they found the defendant guilty.

  The jury deliberated for eight days and found the defendants guilty.48 My brother and I were retained to prepare and argue Sandy Murphy’s appeal and to file a motion for a new trial based on newly discovered evidence.

  We began our investigation by focusing on the burking theory. Since the jury could have convicted based on that theory alone, if we could undercut it, Murphy would have to be given a new trial,49 since the jury might have convicted on that false theory. We would turn the prosecution’s “multiple choice” offense into an appellate defense.

  One important pillar of the burking theory was a “bruise” on Binion’s chest that had been photographed. Since Dr. Baden hadn’t examined Binion’s body, he had to rely on the photograph alone. Dr. Baden concluded that the bruise—which appeared consistent with the shape of Binion’s shirt button—had been caused by Binion being burked. We had the photograph enlarged and enhanced by the most sophisticated technology. We showed it to one of the world’s most distinguished dermatologists, who examined it “at high magnification.” His conclusion dealt a powerful blow to the burking theory: The mark on Binion’s body was not a bruise; instead, the structure of the blood vessels proved that it was a benign skin tumor he had for years before his death.50 It had not been produced by “an external cause.” Our expert, who had examined thousands of lesions, wrote that he had “never in my experience seen lesions such as this caused by pressure.”

  Additional field research further discredited both the burking and the cocktail theories.51 We were now confident that if Murphy were to receive a new trial, a jury would acquit her. The prosecution’s “multiple choice” theory had become a “no choice” near certainty.

  Now all we needed was an opportunity to obtain a new trial. Our best chance was to win the appeal, and the best issue on appeal—the safest and neatest—was the judge’s decision to allow Binion’s lawyer to testify that Binion had told him the day before his death that if he were found dead, Murphy would be his killer. This was a smoking gun that must have influenced the jury, since it was, in effect, testimony from the grave. The ghost of the dead man, as in Shakespeare’s Hamlet,52 was pointing to his killer.

  We did not believe that the conversation had occurred. Murphy told us that the lawyer, who hated her, had made it up after the fact to assure her conviction. But the jury had believed the lawyer, and we could not challenge his credibility on appeal, since credibility issues—whether in-court witnesses are telling the truth or lying—are for the jury to decide. But we could try to raise doubts about the credibility of the dead man, who had not testified in court—the man whose words were quoted by the lawyer. How could the jurors assess Binion’s credibility, since he could not be cross-examined? His “testimony” from the grave was classic hearsay,53 and his unavailability denied Murphy the constitutional right to confront her accuser.54

  The prosecution responded that the only reason Binion wasn’t in court was that my client had murdered him. Our argument, they claimed, paralleled the classic definition of “chutzpah”: the young man who murders his parents and demands mercy from the court on the ground that he is an orphan. Murphy had murdered Binion and was now demanding that his last words be excluded. What chutzpah! But the conclusion that Murphy had, in fact, murdered Binion begged the very question to be decided by the jury: Did Murphy, in fact, murder him?

  Although hearsay statements—that is, in-court testimony by one person as to out-of-court statements made by another—are generally not admitted at trial, there are exceptions to this rule of exclusion. One of them is the “chutzpah exception”: A defendant can’t kill a witness and then seek to exclude testimony about what he would have said if he were alive.55 This exception was created to discourage defendants from murdering witnesses. But to invoke that exception, it has to be clear that the defendant did, in fact, kill the witness. This presented a chicken-egg problem: The jury had concluded Murphy killed Binion, based on hearsay evidence that would be admissible only if she had, in fact, killed him.

  Another exception is “deathbed” confessions—statements made by a man who knows he’s dying and speaks in anticipation of his imminent death.56 The “science” behind this exception is the assumption that no person will lie if he knows he is about to meet his maker. But this too is junk science, since there is no real evidence to support the assumption. Moreover, there was no evidence (aside from the challe
nged statement itself) that Binion actually anticipated death or that he was a religious man who feared meeting his maker with a lie on his lips.

  The final relevant exception is that an otherwise hearsay statement is admissible if it is relevant to the “then-existing state of mind” of the dead person.57 For example, if Binion had told his lawyer that he was feeling depressed and was considering suicide, that statement could be heard by the jurors to help them decide whether his subsequent death was caused by his suicide rather than murder. The prosecution argued that Binion’s “fear” of being murdered was evidence of his state of mind, and that his death was not caused by self-administered drugs. The problem with this argument was that Binion’s statement was also evidence of Murphy’s allegedly murderous state of mind, and the jurors would not be able to limit its consideration of this explosive statement only to Binion’s state of mind. As lawyers like to argue: “When you throw a skunk in the jury box, you can’t get rid of the smell even if you remove the skunk.” This was especially true since the judge had failed to give the jury what is called a “limiting instruction,” namely that “you can consider the statement only to prove what Binion was thinking and not what Murphy was thinking.” (There is grave doubt whether jurors actually follow such limiting instructions, or whether they are more like the admonition “Don’t think about the eight-hundred-pound gorilla in the room.” In any event, the judge didn’t give that instruction.)

  Because of this serious and prejudicial error (as well as others), the Nevada Supreme Court reversed the murder convictions and ordered a new trial.58

  The jury at the second trial, having heard our new scientific evidence, acquitted Murphy of murder.59 They believed neither the burking nor the cocktail theory. The more likely cause of death, they apparently concluded, was a self-administered overdose of heroin. Murphy now lives in California, where she runs an art gallery. She recently had her second baby daughter.

  ASSISTING MERCY SUICIDE: THE CASE OF DR. PETER ROSIER

  Another highly emotional case in which science was used to establish the immediate cause of death involved the mercy killing by a doctor of his cancer-ridden wife. This case also raised profound and controversial moral, religious, and legal issues.

  Although the media characterized Patricia Rosier’s death as a “mercy killing,”60 it is more aptly described as a “mercy suicide,” because she alone made the decision to end her life. A mercy suicide, when committed by an adult of sound mind, is not a crime. (Although historically suicide was a crime, it obviously can’t be prosecuted if it succeeds. Attempted suicides were sometimes prosecuted.)

  Mercy killing—the taking of the life of another person who is suffering and usually no longer sentient—is different from mercy suicide in the eyes of the law. The letter of the law simply does not generally recognize mercy as a defense to murder: It regards all deliberate killings as murder, whether done in the name of love or hate. But suicide is not a crime, though in some religions it is still regarded as a sin, even when committed to relieve the pain accompanying an imminent death.61

  Assisted suicide, on the other hand, remains a crime in most jurisdictions. In 2012, one of the most controversial referenda issues on the Massachusetts ballot was a proposal to authorize assisted suicide in a narrow range of cases. Following the expenditure of a considerable sum of money by opponents and strong opposition from the Catholic Church, it was narrowly defeated.62

  The line between suicide and assisted suicide is not always clear. Sometimes it is simply a function of timing or happenstance. When what was originally intended as an unassisted mercy suicide cannot be completed without the help of others, it becomes, in the eyes of a prosecutor, a criminal mercy killing.63

  What began as a clear case of mercy suicide by Patricia Rosier ended up with the trial of her husband, Peter, for first-degree murder and conspiracy to murder. The prosecutor sought the death penalty, analogizing the crime to “a serialized gang murder.”

  The basic facts were not much in dispute, but the legal consequences of those facts gave rise to one of the most contentious and emotional cases in Florida legal history.64

  Dr. Peter Rosier, who was a pathologist, learned of his wife’s cancer by examining X-rays. After being told she had incurable cancer and had only weeks to live in excruciating pain, Patricia made the fateful decision to pick the time and circumstances of her death, not wanting to leave it to the unpredictable clock of cancer. When she told her husband of her decision, Peter said that he would end his life with her. When the children learned of this, they pleaded with their father not to take his life. Peter relented. No one tried to talk Patricia out of her decision, for two reasons: First, she had made up her mind; second, it wasn’t really suicide, since her act would only hasten her painful demise by a few weeks.

  Patricia selected the time of her death and planned a farewell dinner for her family. Among those in attendance, in addition to her husband and children, were her stepfather and her two half brothers.

  There was wine, and there were toasts. Patricia wore an elegant dress and had had her nails polished. After dinner they all watched the movie Harold and Maude, about an aging woman who commits suicide to prevent herself from “growing old.”65 When it was over, Peter and his wife retired to the bedroom and made love. After bidding farewell to family members, Patricia Rosier took twenty pills that she had selected. She quickly fell into a coma, from which she expected never to wake.

  But the coma began to lighten. Peter didn’t know what to do. Would she awaken or remain comatose? Would there be brain damage? Pain? Emotional turmoil? All Peter knew was that his wife did not want to awaken. What was his obligation to his comatose wife? Would he be breaking his final promise to her if he did not assist her in achieving her goal: a painless and dignified death? He could not ask her. The decision was his, but it was her decision—she had already made it and acted on it, albeit incompletely.

  Peter administered morphine, but it was not enough. While Peter was outside the house, pacing and crying, Patricia’s stepfather placed his hands over her nose and mouth. She died in her sleep.

  The stepfather and brothers informed Peter that Patricia had died, without providing any more information. For nearly a year, the circumstances surrounding Patricia’s death remained a secret. Then Peter decided to write a book about his wife’s decision66 and gave an interview to a local television reporter in which he related what he believed were the circumstances of his wife’s death,67 still unaware that her stepfather had administered the coup de grâce.

  As soon as the interview was aired, the local prosecutor began a murder investigation. He wanted to interview Patricia’s stepfather, but he demanded total immunity from prosecution for himself and his sons. That should have tipped off the authorities that he might have something to hide. But instead of asking for a “proffer”—a truthful outline of the facts—before deciding whether to grant immunity, the prosecutor agreed to his condition.

  The stepfather then disclosed that it was he who had caused Patricia’s death. The prosecutors had committed a blunder feared by every law-enforcement official: They’d given the wrong person immunity. But they could not back out of their deal. Now the only possible target was Peter.

  Despite the certainty that Peter had not actually killed his wife, and that she wanted to take her own life, the prosecutor treated the loving husband as if he were the triggerman in a serialized gang murder. Peter was indicted on charges of first-degree murder and conspiracy to murder. The prosecution’s theory was that the stepfather’s ultimate act was merely the final stage in a family conspiracy of which Peter was the architect and participant. Under the same principle that had been used against Harry Reems and the Tison brothers, Peter would be deemed guilty of the stepfather’s acts. Moreover, Patricia’s death, according to the prosecutor, would never have occurred but for Peter’s actions in helping her kill herself.

  Suddenly Peter Rosier found himself in jail, facing a possible death sentence in a
state that has one of the highest execution rates in the country. Right-wing commentators, such as Patrick Buchanan, absurdly compared what Peter had done to what the Nazis had done under Hitler.68 Rosier called me from prison on the day of his arrest and asked me to help him. I worked with his local lawyer to get him out on bail and to formulate a trial strategy. In the event of his conviction, I was to be his appellate lawyer.

  First we had to establish through scientific evidence that suffocation, rather than morphine, was the immediate cause of death, since Rosier did not suffocate Patricia. (Cancer was, of course, the real “but for” cause, in the sense that but for the cancer she would not have tried to commit suicide.) Second, we had to show that the stepfather’s decision to suffocate his daughter was not part of any plan or conspiracy agreed to by Peter. And finally, we had to make the jurors wonder what they would have done under such circumstances and to conclude that the criminal law should not sit in judgment over loving family members who had to make a tragic choice between keeping a promise to a comatose loved one or abandoning her in a moment of crisis.

  Peter’s trial lawyer, Stanley Rosenblatt of Miami, did an excellent job persuading the jury that the murder statutes were put on the books not for loving husbands like Peter Rosier but for brutal killers like Charles Manson and Ted Bundy. He tried the case with emotion and empathy, inviting the jurors to put themselves in the unenviable situation Peter faced on that terrible night.69 The prosecutor, on the defensive for having given Patricia’s stepfather immunity before he knew the facts, played the avenging angel. He demanded that the jurors simply apply the law to the facts and not distinguish among murders on the basis of motive.