Taking the Stand

by Alan Dershowitz

  ANATOLY SHARANSKY: DEATH FOR SPYING FOR THE UNITED STATES

  The client with whom I most closely identified personally was falsely charged with a capital crime because he was a political dissident in the Soviet Union who made repeated contact with American political and media figures. He was a Soviet Jew whom I never met during the years I was fighting to save his life. His name (at the time) was Anatoly (it’s now Natan) Sharansky.

  Sharansky was a prominent defender of human rights, not only of his fellow Soviet Jews but of all victims of Soviet oppression. He worked closely with Andrei Sakharov, the father of the Soviet nuclear weapons program who had become the leading voice for human rights in the Soviet Union.

  Sharansky was arrested by the KGB in 1977 on charges of spying for the United States—a charge that carried the death penalty. I had previously represented two Jewish refuseniks who had tried to steal a small airplane in which to escape to Israel, via Sweden. They had been sentenced to death. Although we got their death sentences reversed and they were eventually allowed to emigrate to Israel,1 there was no assurance that similar efforts would help Sharansky, who faced the more serious charge of spying for an enemy.

  I had been asked, along with Canadian law professor Irwin Cotler, to represent Sharanksy. The request came from his wife, who was in Israel, and his mother, who lived in Moscow. They had no money to pay for a lawyer. We agreed to do what we could to save his life and, hopefully, secure his freedom.

  Our first job was to try to get the espionage charge dropped, since that was the one that carried the death sentence. Because Sharanksy was accused of spying for the United States, I decided to go directly to the White House to try to persuade President Carter to issue a statement expressly denying the Soviet charge that Sharansky had been a CIA operative.2 Carter faced great pressure from the CIA to continue the long-standing American policy of never affirming or denying anyone’s alleged association with the agency. But after several requests, and pressure from his chief domestic policy advisor, Stuart Eizenstat, who had been my student, President Carter did issue the following statement:

  I have inquired deeply within the State Department and within the CIA, as to whether or not Mr. Sharansky has ever had any known relationship in a subversive way, or otherwise, with the CIA. The answer is “no.” We have double-checked this, and I have been hesitant to make that public announcement, but now I am completely convinced.

  Shortly after President Carter made his unprecedented statement, the Soviet prosecutors dropped the espionage charge and took the death penalty off the table. But they were still determined to see Sharansky die in prison. The Soviets called it “special regime,” consisting of a diet that no one could long survive on. The prisoners called it “death on the installment plan.”

  Sharansky’s wife pleaded with me to get him out of prison before he starved to death and before she was too old to have children. We had saved him from execution; now we had to save him from starvation.

  We decided that the best way to keep him alive was to personalize him to the world. If the world got to know Anatoly as a human being, rather than merely as another prisoner of conscience, it would become more costly, in terms of international reactions, to the Soviet Union to let him die in the Gulag. With this in mind, we set out to plaster his smiling face on every possible magazine cover, newspaper front page, and television show. I appeared on ABC News with Barbara Walters, published a minibrief in Newsweek magazine, gave dozens of speeches, and testified on his behalf at many governmental and nongovernmental proceedings, as did Professor Cotler. We enlisted Sharansky’s very beautiful, very photogenic, but very shy wife (Natasha, now Avital) in our campaign. Before long, Sharansky’s name became a household word and his image became familiar around the world.3 His wife’s pleas to release him in time to father their children fell on receptive ears—at least outside of the Soviet Union.

  At the same time, we filed legal briefs, lobbied for legislative action, and convened academic conferences.

  Ultimately, after nine years of unremitting efforts, I traveled to Paris on Thanksgiving day to meet with an East German lawyer whose specialty was arranging spy swaps. We were able to arrange a prisoner exchange that resulted in the release of an East German spy, whom I had been asked to represent in Boston, and Sharansky, along with several others. Because Sharansky was not a spy, but a human rights activist, he refused to participate in any “spy swap.” The compromise we reached resulted in Sharanksy walking alone, and not as part of any exchange, across the Glienicke Bridge in Berlin, his book of Psalms in his hand. We later learned that Mikhail Gorbachev had personally ordered Sharansky’s release.

  Mikhail Gorbachev

  Shortly after Sharansky’s release, I invited Soviet president Mikhail Gorbachev to join me at Rosh Hashanah services in Moscow, where I had been invited to the Kremlin to speak at a conference on law and bilateral economic relations in September 1990. It was a time of transition, but the Soviet Union was still in existence and Gorbachev was still running it.

  Gorbachev attended the closing dinner, having just come from an emotional meeting of the Supreme Soviet at which he had sought emergency powers to confront the ongoing crisis. I introduced myself to him as he was eating dinner, and we had a lengthy conversation in which I asked him to come with me to the synagogue and denounce anti-Semitism as Pope John Paul II had done when he appeared at the Rome synagogue and deplored “the hatred, persecutions, and displays of anti-Semitism directed against the Jews at any time and by anyone.”

  Gorbachev smiled and asked me rhetorically, “Are you here to help bring down my government?” He said he could not go to the synagogue, but he promised me that he would condemn anti-Semitism. Shortly thereafter, he announced that “the Democratic Russian public denounces anti-Semitism and will do everything in its power to uproot the phenomenon from our society.”

  Sharanksy got out in time to father two beautiful daughters, whom I enjoy meeting when I visit Natan and his wife in their home in Jerusalem. The reason I so closely identify with Sharansky is that there, but for the grace of God and the luck of having grandparents and great-grandparents with the foresight to leave Eastern Europe, go I. If Sharansky’s grandparents had come to America and mine had remained in Europe, our roles could easily have been reversed. That’s why helping to save Sharansky’s life was the case about which I had the most personal feelings. It was also the case that required the widest array of weapons—law, politics, diplomacy, media, economics, persistence, and luck—to win.

  Natan Sharansky became a prominent political and moral leader who continues to serve the Jewish people and humanity.

  DEFENDING THE FORMER PRESIDENT OF UKRAINE AGAINST MURDER CHARGES

  An international client with whom I could not easily identify was the former president of Ukraine, Leonid Kuchma, who was facing an array of charges for having ordered the killing of a journalist. The lawyer who asked me to help the former president assured me that the case was politically motivated and the charges “trumped up.”

  In T. S. Eliot’s famous play Murder in the Cathedral,4 King Henry II is anxious to be rid of Thomas Becket, the archbishop of Canterbury. Unwilling to bloody his own hands, the king hints of his wishes to several loyal knights by issuing a rhetorical challenge: “Will no one rid me of this turbulent priest?” The knights, believing they are following the king’s command, then murder the archbishop.

  Lawyers and historians have long debated whether the king was legally, morally, or historically guilty of Becket’s murder. Prosecutors believed that the Kuchma case was a modern-day variation on Murder in the Cathedral.

  Ukrainian prosecutors were investigating Kuchma for ordering the murder of a journalist who was allegedly critical of the government. The journalist was murdered during President Kuchma’s term in office, and the resulting scandal contributed to the ending of Kuchma’s political career.

  Over the next several years, there were investigations, but they all exculpated the former p
resident. But now, a decade later, the prosecutors claimed they had a smoking gun: a surreptitiously recorded conversation involving President Kuchma in his “Oval Office” making statements about the murdered journalist akin to those made by King Henry II about the archbishop.5

  The conversations were allegedly recorded on a small Toshiba digital recorder that had been secreted beneath a couch in the president’s office. The voice on the recording was unmistakably that of Kuchma and the words—if he had indeed uttered them—were damning.

  My brother and I were retained by a former student of mine, Doug Schoen, a brilliant political strategist who was counseling the former president’s family. Our job was to advise the Ukrainian lawyers with regard to the recording and other legal and scientific issues.

  I flew to Kiev to meet my client. It was an emotional trip for me, since my family—including many who were murdered during the Holocaust—came from areas not too far from there. They would have been shocked to learn that their descendant was now representing the former president of a nation that was known to them primarily as a hotbed of anti-Semitism.

  I went to Babi Yar, the site of one of the worst mass slaughters of Jewish residents of the area. I had been told that some members of my mother’s family were almost certainly among the tens of thousands of victims of the Babi Yar massacres. I was shocked to see that there was hardly any memorial to the murdered Jews. A current resident of Kiev who visited the area, which is just outside the center of town, wouldn’t even know that the Jewish residents of Kiev had been gathered in the area and systematically shot and thrown into pits. The tiny memorial has a faded plaque that is extremely vague about what happened. I knew that under the Soviet regime, there had been denial and silence. I knew that from the famous poem by the Soviet dissident poet Yevgeny Yevtushenko, which begins:

  No monument stands over Babi Yar

  A steep cliff only, like the rudist headstone

  I am afraid.6

  Now there is a monument, but it is unworthy of that term, and it is not as if the city of Kiev doesn’t know how to build giant monuments. In the center of Kiev stands a monumental statue to Bohdan Khmelnitsky, who conducted pogroms in the seventeenth century that slaughtered tens of thousands of Ukrainian Jewish babies, women, and men.7 To this day, Khmelnitsky’s picture adorns Ukrainian currency. I found it much harder to identify with a leader of such a country than it had been to identify with a dissident like Anatoly Sharansky, whose family had come originally from the Ukraine.

  The visit to Kiev wasn’t easy for me, for my wife, or for my brother (who had made a separate visit with his late wife, Marilyn). It was especially difficult for Marilyn, my sister-in-law, whose father’s entire family had lived in the Ukraine, where almost all of them were murdered during the Holocaust. The difficulty was exacerbated when one of the Ukrainian lawyers with whom I was working was found dead in his bed just after we completed an evening work session and hours before we were to resume our work in the morning. The official cause of death was ruled a heart attack, but the KGB—whose role in the case we were investigating—is expert at giving enemies “heart attacks.” Nor was this the only mysterious death that occurred during the investigation. Earlier, the interior minister, on whose direct orders the man who killed the journalist had allegedly acted, was found dead just hours before he was scheduled to testify. The death was officially declared to be a “suicide,” despite the fact that two bullets were found in his body. As the BBC put it: “Questions have been asked about how he managed to shoot himself twice in the head.”8 These questions have never been answered. But we were there to save the life and liberty of a Ukrainian political leader and we got down to work.

  President Kuchma immediately told me that although it was his voice on the smoking gun recording, they were not his words, as least not in the sequence that appeared in the transcript. I listened to the recording but could not tell very much because the words were Russian and they were difficult to hear.

  I told my client that I too had been the victim of a doctored recording in which my voice and words had been edited and resequenced to make it sound as if I had said the exact opposite of what I had actually said.9 This fake recording had been made by a man named David Marriot, who had offered to be a witness in the Claus von Bülow case. He had asked me for money, and I told him it would be improper to pay him for his testimony and we wouldn’t do it. He surreptitiously recorded our conversation on a tape and then simply cut and spliced the tape to make my refusal to pay him sound like a willingness to pay him. His splicing job was so amateur—he used Scotch tape—that our expert was able to demonstrate it without any question. Moreover, in an abundance of caution, I had recorded my side of one of the telephone conversations that he had spliced to change the meaning. My unspliced recording showed that I had categorically rejected his request for payment.10

  But times had changed, and the recording at issue in the Kuchma case was digital. Changes on a digital recording are much more difficult to detect than on a tape recording. It was our job to demonstrate that the Kuchma recording, like mine, had been tampered with to change the meaning of his words. It would be a challenging scientific task in this new age of recording technology, but my team was up for it. We retained the most sophisticated audio scientists in the world, who were able to demonstrate that words could be digitally resequenced to alter the meaning of a conversation without the change being detectable.

  We also established that the recording device and the recording had been removed from the chain of custody, thereby enabling the tampering to be accomplished. Finally, we proved that under Ukrainian law, the recordings had been made and handled unlawfully. The end result was that the court ruled that the recordings could not be used against President Kuchma in any criminal case and the prosecution was dropped.11

  Once again science had come to the rescue, this time of a man who was being framed by his political enemies. Part of my fee for taking the case was a promise to try to get the picture of Khmelnitsky removed from the Ukrainian five-hryvnia bill. Unfortunately, it is still there, as is the statue of the mass-murdering anti-Semite in the center of Kiev. Science progresses, but some things never change.

  THE CASE OF THE HEADLESS KIDNAPPERS

  Following the breakup of the Soviet Union, many individuals took advantage of the emerging free market system to earn extraordinary amounts of money. Among them was a young doctor from Tiblisi, the capital of the Georgian Republic. He and his family moved to Russia and developed lucrative businesses.

  In the meantime, criminals from the Georgian Republic, encouraged by some political leaders, figured out a way to relieve their nouveau riche former neighbors of part of their wealth: They would kidnap relatives and hold them for ransom. Kidnapping became a thriving business, and paying ransom an occupational hazard in the new Russian economy.

  One day the young doctor’s father was kidnapped and a multimillion-dollar ransom demanded. The doctor met with two of the kidnappers and negotiated his father’s release. So far, business as usual. Then, several days later, the bodies of the two kidnappers were found in shallow graves, their heads severed from their torsos. The young doctor was arrested, and his family—including the father whom he had rescued—came to see me, imploring me to become involved in his defense.

  The family reminded me of my own, a generation or two back, except that they were rich. They were close-knit, somewhat insular, and very warm. They were also very frightened. They assured me that the young doctor could not possibly have killed anyone, and especially not two professional and armed gangsters. But the Russian authorities needed a suspect, and the young doctor was an obvious target because he had a motive: revenge.

  It seemed like a weak circumstantial case, but I knew enough about the Russian criminal justice system to understand that unless we could solve the crime—unless we could point to the real killers—the young doctor would languish in prison for years, even if he were ultimately acquitted following a long-delayed trial.
Our burden was not only to prove our client innocent; we had to take on the role of Perry Mason—to find the guilty parties.

  I agreed to help the doctor’s Russian lawyers, both by becoming involved in the investigation and by trying to secure support from American and international human rights advocates.

  I studied the history of kidnapping in the Georgian Republic and reviewed the sketchy evidence in this case. We followed the money and the forensics. Ultimately, we concluded that the kidnappers had been murdered by the crime bosses who had sent them on their mission. The motive was to silence them and cut off the chain of evidence—along with their heads—that might link them to their bosses if they were apprehended and tortured, or otherwise coerced, into implicating higher-ups. This, we discovered, was not an unusual consequence, especially if the kidnappers had a face-to-face meeting with the ransom-payer, who might then be able to lead the police to them.

  Notwithstanding this compelling evidence that exculpated the doctor, and inculpated the real killers, the Russian authorities kept our client in prison, even while claiming to search for the real murderers. The family believed that some people in authority were trying to extort a second ransom from family members, this time for the release of the doctor, who had paid the first ransom to the kidnappers. I was asked to keep the outside pressure up, which I did. During a trip to Moscow, I met with several influential people and told them that the pressure would be maintained until justice was done.