Taking the Stand

by Alan Dershowitz

  These costs can be high for defendants who honestly believed they were acting lawfully, but whose actions ran afoul of the newly imposed demands of the changing legal landscape. Such is the price of progress. It may be difficult to live with—yet it would be even more difficult to live without. My role, as a defense lawyer, as a teacher, and as a writer, is to try to maintain a proper balance between the need for progress and the imperative of fairness and due process.56

  19

  THE CHANGING IMPACT OF THE MEDIA ON THE LAW

  Bill Clinton and Woody Allen

  Criminal trials involving life and death, such as the O. J. Simpson and Claus von Bülow cases, or rape, such as the Mike Tyson and DSK cases, always generate massive media coverage, especially when famous people are in the dock. Certain kinds of civil trials, especially those with allegations of sexual misconduct, are also widely covered. Here, I focus on two such cases—both quasi-criminal in nature, both involving allegations of improper sexual relations—that reflect the changing impact of the media on our legal process and remind us that the law does not operate in a vacuum. I also discuss my involvement in other cases in which celebrities and public figures have become the focus of media attention.

  In the days before radio and television, trials were covered primarily by the print media. Newspapers wrote articles about notorious cases. Pamphlets were issued containing excerpts from the transcripts. A few great lawyers became famous even without the benefit of the electronic media: Daniel Webster, Abraham Lincoln, William Jennings Bryant, and Clarence Darrow were all household names.

  The advent of gavel-to-gavel television coverage has changed the way in which the public views the law and the way in which the law operates. It has turned lawyers into celebrities and clients into household names. Today, everyone has an opinion on the high-profile cases of the day, and these opinions have an impact not only in the court of public opinion but in the courthouse as well. No lawyer, especially one who practices criminal or constitutional law, can afford to ignore the impact of this phenomenon on tactics and strategy. Cases can be won or lost on the courthouse steps.

  I have played a role in the ongoing debate regarding the manner by which trials are covered, most particularly whether they should be televised. (I think generally they should be and have advocated that view in debates, on television, and in articles.)1 Several of my cases were among the first and most widely televised trials in our history. In others, I have served (and I continue to serve) as a commentator for network television and Court TV.2

  Throughout my career, I have tried to use the media to the advantage of my clients, and the media has tried to use me and my clients in an effort to sell ads. Sometimes the relationship is symbiotic. More often it is antagonistic. It is rarely neutral. This is especially the case when celebrities are involved.

  Although the majority of my clients have been obscure and often penurious, the media often portrays me as a “celebrity” or “high-profile” lawyer. I don’t like those characterizations of my lifework, but there is some truth in it, because many of my cases have been extensively covered by the media. That is in the nature of a criminal or constitutional lawyer, since cases involving my specialties tend to raise issues of public interest. It is also true that because I have become well known as a result of these cases, I receive calls from famous people seeking my advice or representation. I don’t like the term “celebrity lawyer” because it suggests that I select my cases on the basis of the status of the client, rather than the nature of the case or cause. I turn down most celebrity requests, and cases involving celebrity clients have formed a tiny fraction of my practice over the years. But the few that I do take garner far more publicity than do the many cases involving unknown clients.

  Turning Down Bobby Fischer

  One celebrity whose case I turned down was Bobby Fischer, who was training for his world championship chess match at Grossinger’s, where my family and I were spending Passover. I received a note from Fischer asking me to meet with him. Since he grew up in Brooklyn and went to high school right next to the yeshiva I attended, I was anxious to meet him. He told me that he had heard that I was a good lawyer, and he wanted to ask my advice about an issue relating to whether he could copyright or trademark his chess moves. It was an intriguing question, and one that I would have been happy to research.

  I told him that I would be willing to provide a legal memorandum to him on the subject, and he asked me whether I would be willing to do it without charge to him. I said, “Sure, I will provide you legal advice for free, if you would do me the favor of playing one quick chess match with my son Elon.” He looked at me sternly and said, “I’m not a circus performer. I don’t perform for children.”

  I looked him straight in the eye and said, “I’m not a circus performer either. I don’t perform free legal services for ingrates who refuse to do a small favor for a young child who is learning how to play chess. Find another lawyer and pay him the going rate.” He walked away. I never saw him again.

  My own “celebrity” status among lawyers has been a decidedly mixed blessing. It has brought me some cases and clients I would not otherwise have gotten, and it has made me relatively wealthy, at least compared to other less well known law professors. This has caused some resentment and jealousy and has painted a target on my back at which ambitious journalists have repeatedly fired. It has also intruded on my privacy and that of my family. Once at a talk, a woman asked my wife, Carolyn, “So what is it like to sleep with Alan Dershowitz?” But the reality is that my “celebrity” is largely derivative: It derives from the famous and infamous clients I have represented over the years.

  Most people see celebrities at a distance—on the screen, stage, television, or athletic field. They see them at their best—acting, posing, playing, speaking, being interviewed, or participating in charitable causes.

  I see celebrities close up and at their worst. They come to me when they are in trouble, often deep trouble. Their celebrity is no longer a shield protecting them from the ordinary tribulations that befall most people on a daily basis. When they come to me, their celebrity has been turned into a sword being wielded against them. Celebrities generally live by publicity. When they come to me, they are dying from the publicity and want privacy and anonymity. But they can’t have it, because the very celebrity that brought them fame and fortune now threatens to magnify their problems.

  I have represented, advised, and consulted with dozens of celebrities, ranging from presidents and prime ministers to world famous athletes, actors, writers, and financiers. Most have gotten into trouble for one overarching reason: because they were willing to risk what they had limited amounts of in order to obtain more of what they had unlimited amounts of.

  This may sound self-defeating, if not bizarre—so let me explain. Celebrities share several common characteristics. They have more of something than ordinary people have: great athletes have extraordinary physical skills; good actors have unusual thespian skills; successful politicians have a special charisma; financiers have money and the ability to make more. These special characteristics generally give celebrities access to certain desiderata of life: lots of money and the things money and fame can buy, and the benefits that come with these commodities, such as access to numerous sexual partners—if they choose to use their celebrity to obtain such access (and excess!).

  Many of my celebrity clients, who have unlimited amounts of money or access to sex, have sacrificed what they have limited amounts of—freedom, career, time with loved ones, health—in order to obtain even more money or sex. Let me provide a few examples of such bizarre risk-taking in cases that are a matter of public record. (I could provide many more examples if I were free—which I am not—to disclose confidential information given to me by celebrity clients.)3

  Leona Helmsley, the celebrity hotel “queen,” had more than a billion dollars in the bank when, according to the government, she whited-out the words “stereo system” on a bill for services
and changed them to “security system” in order to have her accountant deduct the system’s cost from her taxes.4 She also, according to the government, evaded sales taxes on expensive jewelry in New York (which had a sales tax) by having the jeweler send empty boxes to Florida (which had no sales tax).5 As a result, she may have saved several thousand dollars, but she spent more than a year in prison, when she had only a few years left to live and even less time to spend with her dying husband. By any rational calculus, this was crazy behavior.

  The Queen of Mean

  Leona Helmsley was boring and rather stupid. She was called the queen of mean, and I can only disclose incidents that occurred in public. Here’s one that shows how she earned her title. We were having breakfast in the dining room of her hotel when a waiter brought me a cup of tea. She noticed that a little bit of the tea had dripped onto the saucer. She grabbed the cup and saucer and threw them on the floor in the direction of the waiter, shattering them, and screamed at the waiter, “Now clean it up and beg me for your job.” I walked away, not wanting to be associated with that kind of public rudeness.

  When my daughter was born, Leona had her private jet fly a large stuffed bear to Boston, where it was placed in a limo and brought to our home. My daughter loved the bear and several years later had an opportunity to thank Leona for sending it. Leona replied: “It’s stolen merchandise. I stole it from Donald Trump.” She then explained how she had sold a hotel to Trump that included a pastry restaurant called Rumplemyer’s, which was decorated with large stuffed animals. The sale included the stuffed animals, but Leona took the bear, which belonged to Trump, and sent it to my daughter. I told Leona that I would either have to return the stolen bear or get Trump’s permission to keep it. She said, “Tell the Donald I stole it from him. See what he says.” I told Trump. He laughed and said, “I’m not surprised. Let your daughter enjoy the bear.”

  One day my brother, who was another of Leona’s lawyers, was invited to a birthday party at her house. He brought my mother along. Leona knew that my mother did not want to be confronted with the reality that my brother is not kosher outside of his house. My brother, sensitive to this, always ate only kosher food in her presence. He was at the buffet with my mother, choosing among the smoked salmon and vegetables, when Leona came over and in her booming voice yelled, “In front of your mother you eat salmon. In front of me you eat lobster. Ha ha ha.” It was entirely gratuitous, hurtful, and all too typical.

  Mike Tyson, as the world’s greatest boxer, had a limited career ahead of him but virtually unlimited access to sex. As with many famous athletes, women were falling all over him, sending him “audition” tapes, waiting for him wherever he appeared, and begging to have sex with him. Yet he agreed to be alone in a hotel room with a young woman he had just met and to risk being falsely accused of rape—which, in my view, he was—in order to get even more sex. The result was that he was sentenced to several years in prison near the end of his short career and lost almost everything he had worked so hard to acquire. Even he later acknowledged to me that he was a “schmuck” for risking so much for so little.

  In both of these cases, celebrities risked what they had limited amounts of—in Helmsley’s situation, the few remaining years of her life and time with her husband; in Tyson’s situation, the few remaining years of his career—in order to obtain more of what they had unlimited amounts of: money and sex. Of course, they didn’t expect to be convicted for what they did, but they both engaged in behavior that carried the risk that they would be deprived of what they had only limited amounts of. No rationally calculating person, weighing the costs and benefits of taking such risky actions, would do so. But these celebrities—and many others who have consulted me—did just that.

  Some of my celebrity clients have also gotten into trouble because they needed, or felt entitled to, immediate gratification without sufficiently considering the longer-term implications of their conduct, not only to themselves and their careers but to their loved ones, friends, and associates. They believed that when the future finally arrived, there would be new quick fixes. And often they were right. Someone generally managed to clean up the mess they left behind. It requires a combination of unlikely factors and some bad luck to produce their particular brand of disaster, since most successful people are good at making problems go away. But even celebrities are subject to the law of probabilities, and eventually—if they persist in their reckless behavior—the statistics will likely catch up with them.

  Why do so many celebrities—even relatively intelligent ones—act so recklessly? Is there something special about being a celebrity that makes one feel invulnerable to ordinary risks? Are they so accustomed to “getting away with it” that they weigh costs and benefits differently from ordinary people? Is there a sense of entitlement? Are there expectations that the rules don’t apply to them? Do they feel guilty about their “undeserved” success and unconsciously want to be caught? Do they surround themselves with groupies who encourage bad behavior and refuse to be truthful with them about the risks? Are temptations placed so readily before them that they become difficult to resist?

  One answer may well be that some of them have been doing it all their lives, starting well before they were rich and famous. People often have a hard time changing old habits. I know that no matter how much money I now have, I cannot throw away a tea bag after using it only once. It drives my family crazy to see a soggy tea bag in a cup waiting to be reused, but I simply can’t “waste” a good tea bag that has at least one more cup in it. I’m not suggesting that reusing tea bags is in any way analogous to cheating on one’s taxes or committing other financial or sexual crimes, but I am suggesting that people who have earned their money or fame by illegally cutting corners will sometimes continue to do so, even though there is no longer a financial or other rational need to do so. Old habits die hard, but they can also kill or at least wound those who can’t break the illegal ones. This is not in any way to justify such continuing misconduct. Indeed, quite the opposite, it is to condemn it—because celebrities have few excuses for their misconduct—while at the same time trying to explain why it persists among some celebrities.

  I have thought a great deal about what motivates famous and powerful people to act so self-destructively. The celebrities whom I have represented and advised have faced a wide array of problems, ranging from criminal charges, to loss of careers, to public humiliation, to custody fights, to defamations, to physical threats. Some of the most fascinating stories I can never tell, because I learned them in confidence and helped to resolve them so that they would never become public. Most have become matters of public record, and I am free to write about those stories and to offer my insights about the famous people I advised over the years and the problems they faced.

  The question I am asked most frequently about this is: Does being famous help a celebrity who gets in trouble with the law? Or does it hurt? My answer is yes. Sometimes it helps. Sometimes it hurts. Always it matters. One of the most important jobs a lawyer who represents famous people has is to figure out how to turn that celebrity into an advantage rather than a disadvantage, or at the very least to neutralize it (which is a near impossibility in our celebrity-driven world). I recall Claus von Bülow once telling me that in England it’s all about “class and breeding,” while in America it’s all about “fame and celebrity.” Before he became famous for being accused of trying to kill his wife, von Bülow couldn’t get a good table at certain posh restaurants despite his wealth and social status, but when his name and face began to appear in every newspaper—as a high-profile defendant—he got the best table in every restaurant.6

  It’s All in the Name

  A wealthy friend invited me to a party filled with financial celebrities. “Say hello to Donald.” It was Trump. “To Ron.” It was Perlman. “To Mort.” It was Zuckerman. Then he introduced me to a man wearing a sweatshirt. “Say hello to Andy.” I asked Andy what he did: “Are you one of these financial guys?” He repli
ed, “No, I work for my mum.” “Does she run a company?” I inquired. “I guess you could say so,” he replied. “Would I have heard of the company she runs?” I wondered. “Most definitely,” he said with a smile. “What is it?” I asked. “It’s Great Britain,” he replied. “My mum’s the Queen.” I had been conversing with Prince Andrew.

  During the conversation, he asked whether he could attend one of my classes. I invited him to a class during which we were discussing the use of deadly force. Being a member of the British military, he joined the class discussion. He then wrote me a letter describing his experiences:

  Dear Alan,

  Thank you for a most intellectual experience, it was a fascinating insight into the law and the very serious subjects and dilemmas you face. Your generous offer of attending one of your lectures was a true revelation in thought provocation.

  My mind … has not been educated in the way you and your class thinks but I managed to keep up for most of the time and find where you were off to with your hypotheticals. As you know I made the decision to attend the university of life rather than the academic variety at an early stage in my life and until now I would not change that in any way. You have managed to awaken an interest which I didn’t realise had lain dormant. Perhaps, when I leave the Royal Navy to rejoin the real world, I will get the chance to conduct further academic studies. But in the meantime, the opportunity to be a student for just one lecture was an expanding experience and I cannot begin to thank you enough for your kindness.