Taking the Stand

by Alan Dershowitz

  61 Christianity views suicide as a grave sin against God. Since one’s life belongs to God, suicide amounts to asserting dominion over what is God’s property. Another line of reasoning is that committing suicide is a violation of the Sixth Commandment, “Though shalt not kill.” See, e.g., The Catechism of the Catholic Church 2281 and 2325. Judaism also condemns suicide—unless it is committed as an act of religious martyrdom. See, e.g., Sidney Goldstein, Suicide in Rabbinic Literature (1989). Islam, the youngest monotheistic religion, prohibits suicide as well. As the Quran instructs, “And do not kill yourselves, surely God is most Merciful to you.” Quran, Sura 4:29. Some imams obviously believe that suicide bombing of any enemy is not only not forbidden, it is to be praised and rewarded in paradise. For a nuanced account of the theological justifications for jihad advanced in the name of Islam, see Noah Feldman, “Islam, Terror and the Second Nuclear Age,” New York Times, October 29, 2006.

  62 “Backers of Mass. Assisted Suicide Measure Concede,” Boston Globe, November 7, 2012.

  63 There is a third category that combines mercy killings with mercy suicides. In another one of my cases, a mother was accused of engaging in the combined act of trying to kill her autistic and sexually abused son and trying to kill herself. She succeeded in the former and failed in the latter. She reasonably believed that the child’s biological father was repeatedly abusing the eight-year-old autistic boy and that her former husband was planning to kill her, which would leave the child in the hands of his father. This phenomenon too has a name: altruistic filicide-suicide. We are raising a defense based on necessity (choice of evils), justification (killing to protect her son), and duress (killing under fear of death). That case is pending as I write these words.

  64 See, e.g., “When Is Death a Matter of Mercy?” Miami Herald, December 17, 1988; “A Conflict That Won’t Rest Easy, Rosier Case Stirs Up Old Debate on Mercy Killing,” Orlando Sentinel, December 5, 1988; “Acquittal Renews Euthanasia Debate,” Miami Herald, December 3, 1988; “Doctor Freed in Wife’s Death,” New York Times, December 2, 1988; “Was His Act of Mercy Also Murder?” New York Times, November 7, 1988; “Euthanasia an Issue as Jurors Picked in Doctor’s Murder Trial,” Orlando Sentinel, November 2, 1988.

  65 Harold and Maude (Paramount Pictures, 1971).

  66 Peter Rosier, The Lady.

  67 In the interview with the local WBBH-TV, he admitted: “I administered something to terminate her life.” “Man’s TV Admission He Killed Wife Spurs Probe,” Miami News, November 14, 1986.

  68 A strange analogy for Buchanan, who has expressed admiration for Hitler and doubt that the Nazis gassed Jews during the Holocaust. See Alan M. Dershowitz, Chutzpah 162–64 (1991).

  69 Rosenblatt subsequently wrote a book about the case. Stanley M. Rosenblatt, Murder of Mercy: Euthanasia on Trial (1992).

  70 Fla. Stat. Ann. § 782.08. (“Every person deliberately assisting another in the commission of self-murder shall be guilty of manslaughter, a felony of the second degree.”) The Supreme Court left this issue to the state after holding that there is no right to physician-assisted suicide in the Constitution. Washington v. Glucksberg, 521 U.S. 702 (1997); Vacco v. Quill, 521 U.S. 793 (1997).

  71 See, e.g., Jeff Weiner, “State Attorney Candidates Slug It Out in Debate,” Orlando Sentinel, July 25, 2012 (quoting a veteran state attorney in central Florida as having served in an office “where prosecutors feel pressure to overcharge cases and take weak ones to trial”).

  72 Miranda v. Arizona, 384 U.S. 436 (1966).

  73 Escobedo v. Illinois, 378 U.S. 478 (1964).

  74 I subsequently wrote Is There a Right to Remain Silent? (2008).

  75 State v. Doody, 187 Ariz. 363, 930 P.2d 440 (Ct. App. 1996).

  76 Chief Justice Earl Warren had presided over the high court from 1953 to 1969, and his court had handed down many important decisions expanding civil rights, civil liberties, defendant’s rights, freedom of speech and press, and other rights.

  77 Doody v. Schriro, 548 F.3d 847 (9th Cir. 2008).

  78 Doody v. Schriro, 596 F.3d 620 (9th Cir. 2010).

  79 Ryan v. Doody, 131 S. Ct. 456 (2010).

  80 Doody v. Ryan, 649 F.3d 986 (9th Cir. 2011).

  81 Ryan v. Doody, 132 S. Ct. 414 (2011)

  82 “Buddhist Temple Killing Retrial Begins,” CBS 5 KPHO, January 25, 2012.

  83 “$5 Million Bond Set in Temple Killings Case,” CBS 5 KPHO, February 15, 2012.

  84 Joe McGinniss, Fatal Vision (1983).

  85 Fatal Vision (NBC, 1984).

  86 Ibid.

  87 United States v. MacDonald, 641 F.3d 596, 604–605 (4th Cir. 2011).

  88 In re Blackburn, 174 N.J. 380 (2002).

  89 Ross Gelbspan, “New Allegations in MacDonald Case,” Boston Globe, October 20, 1990.

  90 Memorandum from Thomas McNamara (U.S. attorney) to Carl W. Belcher (Crime Division, Department of Justice), re: Captain Jeffrey MacDonald Murder Case, June 26, 1973. (“Colette’s right ring finger when examined for fingernail scrapings, revealed the presence of human skin. However, this skin was apparently lost.”)

  91 In another case, in which I am currently involved, the government lost crucial blood evidence that could establish whether my client tried to commit suicide after killing her son. See, e.g., Colin Moynihan, “Evidence Lost in Murder Case,” New York Times, August 1, 2011.

  92 Most notably, in 1996 Congress passed the Anti-Terrorism and Effective Death Penalty Act (AEDPA) (28 U.S.C. 2254), which imposes significant restrictions on the ability of federal courts to grant relief to state prison inmates. It is therefore not surprising that, just a year later, in 1997, the Court of Appeals for the Fourth Circuit refused to grant MacDonald’s habeas review. See Harvey Silverglate, “Jeffrey MacDonald, Innocence, and the Future of Habeas Corpus,” Forbes.​com, October 18, 2012. But even before the enactment of the AEDPA, the chances of obtaining relief in state criminal proceedings were slim. As my colleague Daniel Meltzer put it, three years before Congress passed the AEDPA: “Of every 100,000 persons committed to state custody, no more than about 30 obtain federal habeas relief.” Daniel J. Meltzer, “Habeas Corpus Jurisdiction: The Limits of Models,” 66 Southern California Law Review 2507, 2523–24 (1993).

  93 United States v. MacDonald, 966 F.2d 854 (4th Cir. 1992).

  94 See Harvey Silverglate, “Jeffrey MacDonald, Innocence, and the Future of Habeas Corpus,” Forbes.​com, October 18, 2012.

  95 United States v. MacDonald, 641 F.3d 596, 599 (4th Cir. 2011).

  96 Errol Morris, A Wilderness of Error: The Trials of Jeffrey MacDonald (2012).

  97 U.S. v. MacDonald, 688 F.2d 224, 236 (1982).

  98 According to the Innocence Project, which was founded by my cocounsels in the O. J. Simpson case Barry Scheck and Peter Neufeld, in almost 50 percent of postconviction DNA testing exonerations, the actual perpetrators have been identified through DNA testing as well. Innocence Project, Innocence Project Case Profiles, available at http://​www.​innocence​project.​org/​know/.

  99 Com. v. Dixon, 458 Mass. 446 (2010). See also Jonathan Saltzman, “SJC Ruling Extends Reach of DNA Cases,” Boston Globe, December 10, 2010.

  100 In re Davis, 130 S. Ct. 1 (2009) (Scalia, J., dissenting).

  101 In 2009, I challenged Justice Scalia, who has written that he would have to leave the Supreme Court if his constitutional views conflicted with his obligation to the Catholic Church, to debate this issue:

  I hereby challenge Justice Scalia to a debate on whether Catholic doctrine permits the execution of a factually innocent person who has been tried, without constitutional flaw, but whose innocence is clearly established by new and indisputable evidence. Although I am neither a rabbi nor a priest, I am confident that I am right and he is wrong under Catholic Doctrine. Perhaps it takes chutzpah to challenge a practicing Catholic on the teachings of his own faith, but that is a quality we share.

  I invite him to participate in the debate at Harvard Law School, at Georgetown Law School, or an
ywhere else of his choosing. The stakes are high, because if he loses—if it is clear that his constitutional views permitting the execution of factually innocent defendants are inconsistent with the teachings of the Catholic Church—then, pursuant to his own published writings, he would have no choice but to conform his constitutional views to the teachings of the Catholic Church or to resign from the Supreme Court (Alan M. Dershowitz, “Scalia’s Catholic Betrayal,” Daily Beast, August 18, 2009).

  Scalia did not take up my challenge.

  102 Most prominently, Governors George Ryan of Illinois, Winthrop Rockefeller of Arkansas, and Toney Anaya of New Mexico granted blanket commutations to all death-row inmates before leaving office. See, e.g., Jodi Wilgoren, “Citing Issue of Fairness, Governor Clears Out Death Row in Illinois,” New York Times, January 12, 2003.

  103 This is what the Court of Appeals for the Fourth Circuit said in the Jeffrey MacDonald case:

  We acknowledge that MacDonald has a daunting burden ahead in seeking to establish that he is eligible for habeas corpus relief solely because of his “actual innocence.” The Supreme Court has only “assume[d], for the sake of argument … that in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional.” Herrera v. Collins, 506 U.S. 390, 417, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993). The Court has yet to come across any prisoner who could make the “extraordinarily high” threshold showing for such an assumed right. Ibid.; see Dist. Attorney’s Office v. Osborne, 129 S. Ct. 2308, 2321, 174 L. Ed. 2d 38 (2009). (“Whether [a federal constitutional right to be released upon proof of ‘actual innocence’] exists is an open question. We have struggled with it over the years, in some cases assuming, arguendo, that it exists while also noting the difficult questions such a right would pose and the high standard any claimant would have to meet.”)

  United States v. MacDonald, 641 F.3d 596, 616–617 (4th Cir. 2011).

  104 See, e.g., David Grann, “Trial by Fire: Did Texas Execute an Innocent Man?” New Yorker, September 7, 2009.

  105 Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52.

  106 Ibid. 88 (2009) (Stevens, J., dissenting).

  107 Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 72 (2009), quoting Reno v. Flores, 507 U.S. 292, 303 (1993).

  108 Oliver Wendell Holmes, “The Path of the Law,” 10 Harvard Law Review 457, 469 (1897)

  Chapter 16

  Death, Politics, Religion, and International Intrigue

  1 Those were the original Prisoners of Zion: Mark Dymshitz and Eduard Kuznetsov. I discuss their case in Alan M. Dershowitz, The Best Defense 238 (1983).

  2 I used to view President Carter as a man of integrity and principle, and even campaigned for him. But recent disclosures of Carter’s extensive financial connections to Arab oil money and his bias regarding the Middle East have deeply shaken my belief in his integrity. See Alan Dershowitz, The Case Against Israel’s Enemies 17–19 (2008).

  3 On July 24, 1978, he appeared on the cover of both Newsweek and Time.

  4 T. S. Eliot, Murder in the Cathedral (1935).

  5 Michael Schwirtz, “Ex-President of Ukraine Is Implicated in Journalist’s Death,” New York Times, March 22, 2011.

  6 Yevgeny Yevtushenko, Selected Poems 82 (2008).

  7 Orest Subtelny, Ukraine: A History 127–28 (2000).

  8 Irena Taranyuk, “Ukraine Gongadze Case: Court Convicts Journalist’s Killer,” BBC News Europe, January 29, 2013.

  9 In another situation, a television ad by the organization J Street showed a video of my lips moving and a voice—not mine—saying words that I didn’t say.

  10 Alan M. Dershowitz, Reversal of Fortune 149 (1985).

  11 Glenn Kates, “Former Ukrainian President’s Murder Charge Is Dismissed,” New York Times, December 14, 2011.

  12 Earl Caldwell, “Angela Davis Acquitted on All Charges,” New York Times, June 5, 1972.

  13 See also Alan M. Dershowitz, Chutzpah 81–82.

  14 United States v. Ham, 998 F.2d 1247, 1250–51 (4th Cir. 1993).

  15 Ibid. 1252.

  16 See Alan Dershowitz, Finding Jefferson 34–37 (2007).

  17 Ibid. 1252–53.

  18 February 20, 1978, p. 76.

  19 Black Hawk Down (Columbia Pictures, 2001).

  20 The story first appeared in the New Yorker. Raffi Khatchadourian, “The Kill Company: Did a Colonel’s Fiery Rhetoric Set the Conditions for a Massacre?” New Yorker, July 6, 2009.

  21 Raffi Khatchadourian, “The Kill Company: Did a Colonel’s Fiery Rhetoric Set the Conditions for a Massacre?,” New Yorker, July 6, 13, 2009, pp. 40–59.

  22 Ibid.

  23 U.N. Human Rights Council, Fact-Finding Mission on the Gaza Conflict, Human Rights in Palestine and Other Occupied Arab Territories 1884, 1895, U.N. Doc. A/HRC/12/48 (September 25, 2009). For my critique of the Goldstone Report, see Alan Dershowitz, “The Case Against the Goldstone Report,” Huffington Post, February 1, 2010. A longer version of my critique is available at http://​www.​alander​showitz.​com/​gold​stone.​pdf.

  24 Richard Goldstone, “Reconsidering the Goldstone Report on Israel and War Crimes,” Washington Post, April 1, 2011.

  25 See Alan M. Dershowitz, “Blood Brothers,” Boston magazine, June 2000. I also wrote a few shorter follow-ups to this: Alan M. Dershowitz, “With Bulger Brothers, the Cover-up Continues,” Boston Daily, July 8, 2001; Alan M. Dershowitz, “Oh, Brothers,” Boston magazine, July 2002.

  26 Dick Lehr and Gerald O’Neill, Whitey 217–18 (2013).

  27 Ibid. 201

  28 The Departed (Warner Bros., 2006).

  29 When Connolly retired from the FBI, Billy arranged for him to get a high-paying job that included lobbying Billy at the State House.

  30 Dick Lehr and Gerard O’Neill, Whitey 200, 201 (2013).

  31 Ibid.

  32 State v. Connolly, 2006 WL 6164733.

  33 “Ex-FBI Agent John Connolly Sentenced to 40 Years,” Boston Herald, January 16, 2009. Whitey Bulger was arrested in June 2011. Adam Nagourney and Ian Lovett, “Whitey Bulger Is Arrested in California,” New York Times, June 23, 2011.

  34 This was not the only time I offered to help prosecutors fight against evils. On September 12, 2001, I wrote a letter to the attorney general of the United States, offering to work—for a dollar a year—on the prosecution of terrorists, such as the ones who perpetrated the 9/11 attack against the United States. In my letter, I explained that as an experienced defense attorney, who had helped to defend several accused terrorists (including members of the Jewish Defense League), I knew all the tricks of the defense trade and how to combat them in the interests of justice. I received no reply to my letter.

  35 ABA Model Rules of Professional Conduct 1.6 (b)(1)-(3). I discuss the lawyer-client relationship in my first novel, The Advocate’s Devil (1995).

  36 Lennon v. Immigration Serv., 527 F. 2d 187 (2d Cir. 1975).

  37 The Godfather (Paramount Pictures, 1972); The Godfather Part II (Paramount Pictures, 1974).

  38 Babylonian Talmud, Sanhedrin 73a.

  39 Leviticus 19:16.

  40 Maimonides, Mishneh Tora, Hilkhot Rotze’ah U-Shmirat Nefesh I:9.

  41 I am comfortable describing this “defense,” since it was made public by him and his family. See, e.g., Jessica Stern, Terror in the Name of God 91 (2003).

  42 See, e.g., William A. Schabas, The Abolition of the Death Penalty in International Law 65 (3d ed. 2002).

  43 Excerpts of the sentencing decision from March 27, 1996, are available at http://​www.​mfa.​gov.​il/​MFA/​MFAArchive/​1990_​1999/​1996/​3/​Excerpts+​of+​Yigal+​Amir+​Sentencing+​Decision+-+​March.​htm?​WBCMODE=​Presentation​Unp?.

  44 Jonathan Lis, “Wife of Jailed Rabin Assassin Yigal Amir Gives Birth to Son,” Haaretz, October 28, 2007.

  45 “Defense Lawyer Alan Dershowitz May Defend Serb Leader Radovan Karadzic Ac
cording to Harvard Crimson,” PR Newswire, May 8, 1998.

  46 I wrote a brief on joint criminal enterprise in the Momčilo Krajišnik case. Prosecutor v. Momčilo Krajišnik, IT-00-39-A, Appeal Judgement (March 17, 2009).

  47 Jack Henry Abbott, In the Belly of the Beast: Letters from Prison (1981).

  48 Mailer later expressed remorse over having secured Abbott’s release. See, e.g., Claudia Wolffs and Dean Brelis, “In the Belly of the Beast,” Time, August 3, 1981.

  49 For some of my views on this case, see Alan M. Dershowitz, “Zimmerman Prosecutor Threatening to Sue Harvard for My Criticism,” Newsmax.​com, June 5, 2012; Alan Dershowitz, “New Forensic Evidence Is Consistent with Zimmerman’s Self-Defense Claim,” Huffington Post, May 21, 2012; Alan M. Dershowitz, “Drop Zimmerman’s Murder Charge,” New York Daily News, May 18, 2012; Alan Dershowitz, “The ‘Rorschach’ Facts in the Killing of Trayvon Martin,” Huffington Post, April 11, 2012; Alan M. Dershowitz, “Prosecutor’s Quandary: Zimmerman May Be Indicted, Then Acquitted,” CNN, April, 10, 2012.

  Chapter 17

  Death Cases from the Classroom to the Courtroom and from the Courtroom to the Classroom

  1 New Edition of the Babylonian Talmud (Section Jurisprudence—Damages) (Michael L. Rodkinson, ed.), Tract Sanhedrin, chapter IX, 229 (1903).

  2 State v. Damms, 100 N.W.2d 592 (Wis. 1960).

  3 Ibid. 597.

  4 Alan Dershowitz, “Why Criminal Attempts Fail? A New Defense,” 70 Yale Law Journal 160 (1960).

  5 Ibid. 163.

  6 Ibid. 164.

  7 Ibid., citing Sigmund Freud, A General Introduction to Psychoanalysis 48 (Permabook ed., 1958).

  8 N.Y. Crim. Proc. Law § 60.22 (McKinney).

  9 People v. Dlugash, 51 A.D.2d 974, 380 N.Y.S.2d 315 (1976) aff’d as modified, 41 N.Y.2d 725, 363 N.E.2d 1155 (1977).

  10 Ibid. 317.

  11 Ibid.

  12 People v. Dlugash, 59 A.D.2d 745, 398 N.Y.S.2d 560 (1977).

  13 Dlugash v. People of State of N.Y., 476 F. Supp. 921 (E.D.N.Y. 1979).