Taking the Stand
Page 61
12 Perhaps, of course, had my forbears remained in Poland, my father might not have met my mother (although their families lived in neighboring shtetels). Accident, timing, and luck determine virtually everything relating to birth.
13 In 1999, I wrote a novel, Just Revenge, that reflected my deep feelings about the unavenged murders of so many of my relatives.
14 My mother’s father did travel by boat to Palestine in the 1930s, hoping to move there, but after a few weeks, he determined that he couldn’t make a living there and he returned to Brooklyn.
15 In a recent documentary about American Jews, Justice Ginsburg asks and answers the following question: “What is the difference between a bookkeeper in the garment district and a Supreme Court justice? One generation.” The Jewish Americans: A Series by David Grubin, PBS (2008).
16 French politician François Guizot remarked, “Not to be a republican at twenty is proof of want of heart; to be one at thirty is proof of want of head.” John Adams expressed a similar idea. In a 1799 journal entry, Thomas Jefferson quotes Adams as having quipped, “A boy at 15 who is not a democrat is not good for nothing, and he is no better who is a democrat at 20.” Fred Shapiro, John Adams Said It First, August 25, 2001, http://www.freakonomics.com/2011/08/25/john-adams-said-it-first/.
17 People v. Dlugash, 51 A.D.2d 974, 380 N.Y.S.2d 315 (1976). For a discussion, see infra at pp. 311–313.
18 United States v. Sabhnani, 599 F.3d 215 (2d Cir. 2010).
19 Matter of Baby Boy C., 84 N.Y.2d 91 (1994).
20 Lucido v. Cravath, Swaine & Moore, 425 F. Supp. 123 (S.D.N.Y. 1977).
21 See infra at pp. 172–175.
22 Transcript for John A. Farrell, Clarence Darrow: Attorney for the Damned, http://thedianerehmshow.org/shows/2011-06-16/john-farrell-clarence-darrow-attorney-damned/transcript. Farrell also mentioned my friend and colleague Roy Black. The comparison to Darrow, while flattering, is also troubling, since it is likely that Darrow bribed jurors, witnesses, and judges in an era when this was all too common. See Alan M. Dershowitz, America on Trial, 213–17, 260–61 (2004). The Boston Phoenix described me as “probably America’s most famous attorney” (Scott Kearnan, “At Home with Alan Dershowitz,” October 31, 2012); and Nabeal Twereet said I was “the best known criminal lawyer in the world” (Nabeal Twereet, LawCrossing, available at http://www.lawcrossing.com/article/900005794/Alan-Dershowitz-Is-the-Best-Known-Criminal-Lawyer-in-the-World/#).
23 More than one hundred of my submissions have been published by the New York Times since 1969. More than one thousand have been published by other media. See Albany Law Review 71, pp. 794–859 for a list through 2008.
24 These include Sports Illustrated, TV Guide, Good Housekeeping, Penthouse, Parade, New Women, American Film, Newsweek, the New York Review of Books, the Saturday Review, the Atlantic, the Daily Beast, the Huffington Post, and Harpers.
25 See Alan M. Dershowitz, “Lox on Both Their Houses,” New York Times, August 18, 1988.
26 “Activism,” Forward, November 14, 2003.
27 Jewish Daily Forward 50, 2007, available at http://forward.com/forward-50-2007/.
28 Steve Linde, “World’s 50 Most Influential Jews,” Jerusalem Post, May 21, 2010.
29 Oliver Wendell Holmes, Address delivered for Memorial Day, May 30, 1884, at Keene, New Hampshire.
Part I
From Brooklyn to Cambridge
Chapter 1
Born and Religiously Educated in Brooklyn
1 My great-grandfather “Zecharja Derschowitz,” who was born in Pilsno in 1859, was a tailor who sewed small coin purses. He emigrated to the United States in 1888. His wife, Lea, and their four children, including my grandfather Leib (Louis) followed in 1891. My maternal grandparents arrived during the first decade of the twentieth century.
2 My paternal grandfather is credited with having been the cofounder of Torah V’Daas.
3 My uncle Morris Ringel moved to California to work in the aeronautics industry. In 1951, he wrote the family a letter in which he said that he was being hounded by the House Un-American Activities Committee, who wanted to question him about possible Communist associations. He asked that no one try to contact him. He was never seen or heard from again. In 1971, when I lived in California for a year, I tried to locate him, but without success.
4 The origin of the name Dershowitz is unclear. According to my uncle Zecharia, the only living member of my father’s generation:
The name “Derschowitz” or “Deresiewicz” is reported to be a derivative of Derzow or Derzowci (a powerful Jewish leaseholder in Galicia). “Dereszewicz,” “Dershovitz,” or “Derschovitz” are also reported to be derivatives of deresz (a roan—a reddish-gray horse). Finally, “Derschowitz” is also reported to derive from the town Derschowitz in Moravia. It was also the name of a Polish patriot in the 17th Century.
Family legend also relates our name to the Hebrew words drash, doresh, and darshan, which mean “interpretation” or “interpreter,” particularly of the Bible. There is also a town near the Polish-German border called Dershov, from which it could derive. My great-grandfather’s original name, Derschowitz, lost the “c” somewhere along the way, either by design or by a transcription error at Ellis Island.
5 And another (sung to the melody of “My Country, ’Tis of Thee”):
My country, ’tis of thee
Sweet land of Germany
My name is Fritz
My father was a spy
Caught by the FBI
Tomorrow he must die
My name is Fritz.
6 For my seventieth birthday, my brother found a card that commemorated the superhero phase of my life; it showed an elderly Superman standing on a ledge, ready to fly, but wondering, “Now, where is it I’m supposed to be flying?”
7 My Grandmother Ringel, who was recovering from a heart attack, took me to a rehabilitation home in Lakewood, New Jersey, where several wounded or shell-shocked soldiers were also being rehabilitated.
8 A few weeks earlier, we had cried over Roosevelt’s passing, which I heard of while listening to the radio, and broke the news to my grandmother Ringel, who was taking care of me. She refused to believe it, until she herself heard it on the radio. Then she cried. Roosevelt (which she pronounced like “Rosenfeld”) was the hero of our neighborhood (and other Jewish neighborhoods).
9 With regard to this cultural stereotype, Steven Pinker writes:
It cannot be taken for granted that Jewish culture favors achievement in physics, philosophy, or chess. In his autobiography, the eminent social psychologist Stanley Schachter wrote that “I went to Yale much against my father’s wishes. He couldn’t have cared less about higher education and wanted me to go to a one-year laundry college (no kidding) out in the Midwest and join him then in the family business. I never have understood what this intellectually driven Jewish immigrant business is all about. It wasn’t true of my family, and I know very few families for which it was true.… To me, Jewish love of learning has always seemed a myth perpetrated by a few rabbis’ sons who weren’t good at anything much but going to school and then spending the rest of their lives writing novels about it. (Steven Pinker, “The Lessons of the Ashkenazim: Groups and Genes,” New Republic, June 26, 2006)
10 Decades later, I saw my FBI file. It was quite thick, but there was no reference to the Rosenberg petition.
11 For a fuller account of my collection, see Alan Dershowitz, Finding Jefferson 3–25 (2007).
12 Stephen Jay Gould, “Nonoverlapping Magisteria,” Natural History, March 1997.
13 Half a century later, my daughter, Ella, was graded down by her teacher at Milton Academy for raising her hand too frequently in class.
14 One of my jokes did get chosen recently for the online version of Old Jews Telling Jokes. It can be accessed at www.gocomics.com, dated January 6, 2013.
15
To David Snir, November 10, 1963, translated from the Hebrew.
16 For a fuller account of this episode, see Alan M. Dershowitz, The Best Defense 12 (1983).
17 The classic Jewish joke reflecting this xenophobia is about Moishe, who says to his wife, “It’s too hard to be a Jew. I’m converting to Christianity.” He goes to church, converts, and goes home to sleep. Next morning his wife wakes up and sees Moishe wearing his talit (Jewish prayer shawl) while davening (praying in Hebrew). “What are you doing, Moishe?” she asks. “You’re a Christian.” Moishe replies, “I forgot! Goyisher Kup.”
18 Joshua Prager, “For Branca, an Asterisk of a Different Kind,” New York Times, August 14, 2011.
19 Alan M. Dershowitz, The Genesis of Justice (2001).
20 I’m reminded of the joke about the pollster who approaches four random people in Times Square and says, “Excuse me, I’d like your opinion on the meat shortage.” The first one, an Ethiopian replies, “There’s a word I don’t understand. What ‘meat’ is?” The second, an American, also says there’s a word he doesn’t understand: “What’s ‘shortage’?” The third, from China, also doesn’t understand something: “What’s ‘opinion’?” Finally, the Israeli too says there’s something he doesn’t understand: “What’s ‘excuse me’?”
We never said “excuse me.” Conventional politeness was not part of our language. Nor was rudeness. We simply didn’t regard interrupting someone as rude, as long as everyone eventually got to say what he wanted.
21 I still have the letter from Production Services Company at 667 Madison Avenue informing me that the results of my written examination “are gratifying” and inviting me for the personal interview I failed.
22 Shoftim, Deuteronomy 16:18–21:9.
23 Similar differentials are still at work today, but they operate beneath the radar screen, under the rubric of “diversity” and “discretion.” An admissions officer at an elite college told me that he turns down many students with perfect SAT scores. When I asked him who these rejected students were, he acknowledged that they were almost exclusively of Asian and Jewish background: “If we took everybody with perfect SAT scores, there would be little diversity,” he explained. He too apparently believed in the “Yiddisher (and Asian) kop” theory. According to a recent study examining more than nine thousand students applying to selective universities, white students were three times more likely to be admitted than Asian students with the same academic record. See Carolyn Chen, “Are Asians Too Smart for Their Own Good?” New York Times, December 20, 2012.
24 Alan Dershowitz, “Collectible Adolescence,” New York Times, May 31, 1987.
Chapter 2
My Secular Education
1 Larry Ruttman, American Jews and America’s Game (2013).
2 For years, I had been telling people that the flights were canceled, but a couple of summers ago I was at a party with a man (now married to a prominent public figure) who was at Brooklyn College with me. He and several of his friends were also going to Havana for the same reason. “I made it to Havana,” he boasted. “But the flights were canceled,” I replied. “No, they weren’t. The State Department just issued a warning that it was a little bit dangerous.” I guess he was more determined to lose it than I was. His wife, who was then his college girlfriend, said that she didn’t “touch him for a year after that.”
3 In my application, I wrote the following:
I believe that my college career has been a period of moral and intellectual growth throughout which time I have felt an increasing responsibility to my conscience in matters of self improvement. I felt this personal responsibility so strongly in college because I had almost completely neglected it throughout high school. A firm determination to show myself, as well as my high school contemporaries, that I could become an outstanding student in college has been a most potent motivating force.
I also listed my academic, political, and athletic achievements, and promised that if admitted to Oxford
I would read for the Oxford B.A. in the Honor School of Jurisprudence and then enter Law School in the United States.
4 Brooklyn College received its first Rhodes Scholarship in 1991. See James Barron, “Brooklyn College Firsts: Marshall and Rhodes,” New York Times, December 12, 1991.
5 One of the reasons I chose Yale was that I was thinking—even back then—of becoming a professor. An article in the Brooklyn College paper about my tenure as president of the student council included the following:
Alan’s leisure time has somehow stretched to include pitching for Knight House’s baseball team, listening to music (his tastes run to early Classical, late Baroque, choral music), watching wrestling on television, teaching a Sunday school class, contributing to the activities of the Young Israel of Borough Park and commuting between New York and Bayonne, New Jersey, where his fiancée, Sue Barlack, is a Rutgers sophomore.
His future plans are almost as impressive as his past activities. He plans to become a professor of law.
6 The Finzi-Continis were a wealthy Jewish-Italian family whose destruction was immortalized in the Giorgio Bassani novel The Garden of the Finzi-Continis (1962) and the Oscar-winning movie of the same name (1970).
7 The current chairman of Sullivan & Cromwell is an ordained Orthodox rabbi. Cyrus Sanati, “For Law Firm’s New Chief, Challenges Abound,” DealBook, New York Times, January 4, 2010.
8 Lucido v. Cravath, Swaine & Moore, 425 F. Supp. 123 (S.D.N.Y. 1977). For a full account, see Alan M. Dershowitz, Chutzpah 54–55 (1991).
9 Alan Dershowitz, A Pragmatic Approach to the Effect of the 5th Amendment upon Administration of Justice, Political Science 34, Prof. Wilson (Brooklyn College, New York, 16 May 1958). From the Brooklyn College Archive.
10 Alan M. Dershowitz, Is There a Right to Remain Silent? (2008).
11 Alan M. Dershowitz, “Why Do Criminal Attempts Fail? A New Defense,” 70 Yale Law Journal 160 (1960).
12 Alan M. Dershowitz, “Increasing Community Control over Corporate Crime—A Problem in the Law of Sanctions,” 71 Yale Law Journal 280 (1961).
13 See Alan M. Dershowitz, Chutzpah 166–70 (1991).
14 Guido Calabresi, “Some Thoughts on Risk Distribution and the Law of Torts,” 70 Yale Law Journal 499 (1961).
15 Joseph Goldstein and Jay Katz, “Dangerousness and Mental Illness: Some Observations on the Decision to Release Persons Acquitted by Reason of Insanity,” 70 Yale Law Journal 225 (1960).
16 Jay Katz, Joseph Goldstein, and Alan M. Dershowitz, Psychoanalysis, Psychiatry, and the Law (1967).
17 See Telford Taylor, Courts of Terror: Soviet Criminal Justice and Jewish Emigration (1976) (with Alan Dershowitz, George Fletcher, Leon Lipson, and Melvin Stein).
18 John F. Kennedy, Yale University Commencement, New Haven, Connecticut, June 11, 1962.
Chapter 3
My Clerkships
1 David Lat, “The Supreme Court’s Bonus Babies,” New York Times, June 18, 2007; Adam Liptak, “San Francisco Led in Fighting Marriage Ban,” New York Times, March 19, 2013, 1, 12 (“Signing bonuses are now in the neighborhood of $280,000.00.”)
2 Mory’s did not allow women until 1972, three years after Yale College had became coeducational. See http://www.morys1849.org/Home/test.aspx. Eventually (and resentfully), Rodell moved his seminar to a classroom after several women complained.
3 For my views on Bickel’s constitutional jurisprudence, see my review of his The Morality of Consent, New York Times Book Review, September 21, 1975, 1–2.
4 See Noah Feldman, Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justice 430 (2010).
5 The Harvard Club of New York started to accept women in 1973. Jeffrey R. Toobin, “The New York Harvard Club: Changing Traditions on West 44th,” Harvard Crimson, January 3, 1979.
6 A variation on this story was told by Judge Learned Hand: “I remember once I was with [Justice Holmes]; it was a Saturday when the Court was to confer. It was before we had a motor car, a
nd we jogged along in an old coupé. When we got down to the Capitol, I wanted to provoke a response, so as he walked off, I said to him: ‘Well, sir, goodbye. Do justice!’ He turned quite sharply and he said: ‘Come here. Come here.’ I answered: ‘Oh, I know, I know.’ He replied: ‘That is not my job. My job is to play the game according to the rules.’ ” Judge Learned Hand, “A Personal Confession,” in The Spirit of Liberty 302, 306–7 (Irving Dilliard, ed., 3d ed., 1960).
7 Deuteronomy 16:20. The traditional translation “pursue” doesn’t quite capture the essence of the Hebrew words “Tzedek, Tzedek, Tirdof,” since Tirdof comes from the root that means “to run or chase after.”
8 Sanhedrin 32b.
9 Durham v. United States, 214 F.2d 862, 875 (D.C. Cir. 1954) abrogated by United States v. Brawner, 471 F.2d 969 (D.C. Cir. 1972).
10 As I wrote these words, I was working on a pro bono case with Judge Bazelon’s granddaughter, Lara Bazelon, a clinical law professor at Loyola Law School. I told her about her grandfather’s demanding approach and promised not to replicate it with her.
11 The Bazelon Center, He the Pebble, We the Ripples on the Pond: Reminiscences About Judge David L. Bazelon by 58 of His Clerks, Colleagues and Friends, Written for the Center’s 1993 Rededication to Honor His Pioneering Role in Mental Health Law (1993).
12 This changed with the District of Columbia Court Reform and Criminal Procedure Act of 1970 (84 Stat. 473). See Federal Judicial Center, Federal Courts of the District of Columbia, http://www.fjc.gov/history/home.nsf/page/courts_special_dc.html.
13 309 F.2d 234 (1962).
14 372 U.S. 335 (1963).
15 For an account of Ely’s involvement in the case, see Anthony Lewis, Gideon’s Trumpet 122–29 (1964).
16 Miller v. United States, 320 F2d 767 (1963).
17 Ibid. 768.