Taking the Stand Read online

  Later in my career, I was a lawyer in the Bill Clinton impeachment, the Bush v. Gore election case, and the efforts to free Nelson Mandela, Natan Sharansky, and other political prisoners. I participated in the Senate censure of California senator Alan Cranston, the Frank Snepp CIA censorship case, prosecutions in The Hague involving the former Yugoslavia, the defense of Israel against international war crime prosecution, and the investigation of WikiLeaks and Julian Assange. I worked on the appeal of Jonathan Pollard and was an observer at the trial of accused Nazi war criminal John Demjanjuk and subsequently consulted with the Israeli government about that case. I worked on the defense of director John Landis, the O. J. Simpson double murder case, and the Bakke “affirmative action” litigation. I challenged the tenure denial of Maoist Bruce Franklin at Stanford and Harvard’s investigation of Dr. John Mack, who wrote about human contact with extraterrestrials. I appealed the Claus von Bülow attempted murder conviction, the Leona Helmsley tax case, the Mike Tyson rape prosecution, the Conrad Black fraud conviction, the David Crosby drug rap, and the Tison brothers multiple murder case. I participated in the Woody Allen–Mia Farrow child custody litigation, the defense of Michael Milken, the litigation against the cigarette industry, the Stephen J. Gould wrongful death suit, and the John DeLorean case.

  I have litigated or consulted on cases and causes throughout the world, including the Ukraine, the Soviet Union, the Russian Federation, the Republic of Georgia, Italy, Israel, China, New Zealand, Australia, Great Britain, Poland, the Vatican, France, Libya, The Hague, Norway, Sweden, Switzerland, Germany, South Africa, Pakistan, and Macedonia.

  I have won more than one hundred cases and have been called—with a bit of hyperbole—“the winningest appellate criminal defense lawyer in history.” Of the more than three dozen murder and attempted murder cases in which I have participated, I lost only a handful. None of my capital punishment clients has been executed.

  I will describe and analyze some of these cases and reveal the unique tactics I have developed over the years that helped win so many of them.

  Among the people I have advised in legal, political, and other matters are President Barack Obama; President Bill Clinton; Israeli prime minister Benjamin Netanyahu; Canadian prime minister Pierre Trudeau; Assistant Secretary General of the United Nations Luis Maria Gomez; Senator Ted Kennedy; Marlon Brando; Frank Sinatra; Woody Harrelson; Michael Jackson; Natalie Portman; Ben and Casey Affleck; David Merrick; Bill Belichick; Isabella Rossellini; Adnan Khashoggi; Carly Simon; Hakeem Olajuwon; Kevin Youkilis; Stan Getz; Peter Max; Yo-Yo Ma; Steven Wright; Robert Downey, Jr.; several billionaires, such as Sheldon Adelson and Mark Rich; authors such as Saul Bellow, David Mamet, and Elie Wiesel; and judges, senators, congressmen, governors, and other public officials.

  In addition I have played a role in some of the most interesting litigations involving people who are not well known but whose cases raised intriguing and fascinating issues, such as whether a man can be prosecuted for attempted murder for shooting a dead body that he thought was alive,17 whether a husband can be prosecuted on charges of slavery for not doing anything about his wife’s alleged abuse of domestic employees,18 whether a husband can be forced to adopt a child,19 whether a law firm can discriminate on ethnic grounds in its decision to promote an associate to partner,20 and whether a tenured professor of psychiatry should be investigated for publishing a book suggesting that some of his patients may actually have been abducted by space aliens.21

  Among the broad constitutional and legal questions I have confronted in my practice and teaching are the following:

  • Should governments be empowered to censor speech that endangers national security, defames or offends individuals, falsifies history, or provokes violence?

  • Should the death penalty be imposed on a nontriggerman who did not intend to cause the death of a victim?

  • Should governments, universities, or employers be allowed to consider race in order to achieve positive goals such as diversity, reparation, or representation?

  • Should evidence that conclusively proves the guilt of a criminal defendant—even one charged with multiple murders—be admissible against him if it was obtained in violation of his constitutional rights?

  • Should a president be impeached for lying about his sex life?

  • Should the courts order a recount of a hotly disputed presidential election?

  • Should the President be allowed to secure a warrant to authorize the use of nonlethal torture in an effort to prevent an imminent mass-casualty terrorist attack?

  • Should governments be permitted to target and kill suspected terrorists whom they cannot arrest?

  • Should the Palestinian Authority be authorized to bring criminal charges against Israeli officials in the International Criminal Court?

  An Italian magazine, after reviewing my cases, described my legal practice—also with some hyperbole—as “the most fascinating on the planet,” and a biographer of Clarence Darrow, when asked by National Public Radio whether there was “any attorney in this country today with the stature of a Clarence Darrow,” responded by mentioning me and saying that my cases “equaled some of the trials that Darrow had.”22

  My cases have been more interesting because I have brought the classroom into the courtroom, and my classes have been interesting because I bring the courtroom into the classroom. I have learned a great deal from my students, as I hope they have from me. I have always been skeptical of the distinction between “theory” and “practice” when it comes to a real-world discipline such as law. Theory has helped me to win cases, and practice has helped me to teach students. Both have been a major source of my writing. My primary job has been that of a professor and writer. I have taught thousands of students during the one hundred semesters of my career at Harvard. Some have gone on to become world, national, and local leaders, in politics, in the judiciary, in education, in business, and in the arts. I remain in touch with many of them.

  In the first phase of my academic career, I focused my writing on scholarly articles for law reviews, publishing more than two dozen on law and psychiatry and the prediction and prevention of violence.

  In the next phase, I turned to writing articles for the general public about the law, becoming the first law professor regularly to write about legal issues for the Week in Review, Book Review, and op-ed sections of the New York Times;23 to appear frequently on television shows, such as Nightline, the MacNeil-Lehrer Report, Larry King Live, The Today Show, and Good Morning America; and to write about the law in popular magazines, ranging from the New York Review to Penthouse.24

  In the third phase, I began to write books for the general public, including six national bestsellers and one—Chutzpah—that became the number one bestseller in the United States. I have written thirty books, including three novels, and continue to write every day about a wide range of subjects, including sports, art, politics, literature, and even delicatessens.25

  I write everything by hand, and one of my secretaries, who types my scribbles, has estimated that she types a million of my words each year. I venture to guess that I’ve probably published more words (not necessarily wiser or better) than any professor in the law school’s history.

  I’ve probably also taught more different courses than most other professors. These include Criminal Law; Constitutional Litigation; Family Law; Psychiatry and the Law; Prediction and Prevention of Harmful Conduct; Comparative Criminal Law Theory; Race and Violence; Scriptural Sources of Justice; Law of Sports; Legal, Moral, and Psychological Implications of Shakespeare’s Tragedies; Ethics and Tactics in the Trial of Criminal Cases; Human Rights; Terrorism and the Law; Probabilities and the Law; Comparative Analysis of Talmud and Common Law; WikiLeaks and the First Amendment; the Arab-Israeli Conflict Through Literature; Black Power and Its Legal Implications; Writings of Thomas Jefferson; and Constraining Prosecutorial Misconduct.

  In addition to my classes at the law school, I have taught numerous classes a
t Harvard College, including a large course that I created with Professors Robert Nozick and Stephen J. Gould, entitled Thinking About Thinking; a seminar with Professor Stephen Kosslyn on Neurobiology and the Law; a large class with Professor Steve Pinker on Taboos; and a series of freshman seminars entitled Where Does Your Morality Come From?

  I have engaged in public debates and controversies with some of the most contentious figures of the age, including William F. Buckley, Noam Chomsky, Rabbi Meir Kahane, Rabbi Adin Steinsaltz, Justice Antonin Scalia, Ken Starr, Elie Wiesel, Václav Havel, Golda Meir, Red Auerbach, William Kunstler, Roy Cohn, Norman Mailer, Patrick Buchanan, Norman Podhoretz, Bill O’Reilly, Sean Hannity, Skip Gates, Alan Keyes, Dennis Prager, Jeremy Ben-Ami, Peter Beinart, Mike Huckabee, William Bulger, Hannah Arendt, Wayne La Pierre, James Zogby, Jimmy Carter, Richard Goldstone, Norman Finkelstein, and others.

  I was part of an American team selected to confront Soviet debaters on a nationally televised show, during the height of the Soviet oppression of refuseniks, for which William Buckley suggested that the U.S. team be given Medals of Freedom. I was a regular “advocate” on the nationally televised Peabody Award–winning show The Advocates. I have been interviewed by nearly every major television and radio talk and news show.

  In recent years, I have devoted considerable energy to the defense of Israel, while remaining critical of some of its policies. The Forward has called me “America’s most public Jewish defender”26 and “Israel’s single most visible defender—the Jewish state’s lead attorney in the court of public opinion.”27 In 2010, the Jerusalem Post surveyed its readers and editors as to who were the fifty most influential Jews in the world. The readers ranked me fifth, while the editors placed me ninth.28 In 2010, the prime minister of Israel asked me to become Israel’s ambassador to the United Nations—an offer I respectfully declined because I am an American, not an Israeli, citizen.

  I keep fairly complete records of my cases and controversies. My archives are in the Brooklyn College Library. My professional life has been an open book, and the accessibility of my archives—containing letters, drafts, and other unpublished material—opens the book even further.

  But beyond the written record lies a trove of memories, ideas, dreams, conversations, actions, inactions, passions, joys, and feelings. Fortunately, I have a very good memory, and I am prepared to open much of my memory bank in this autobiography, because I believe that the biography that informs my ideology and life choices cannot be limited to the externalities of my career. It must dig deeper into the thought processes that motivate actions, inactions, and choices. I don’t know how much I will be able to retrieve, but I will try. Nor can I be absolutely certain that all of my memories are photographically precise, since my children chide me that my stories get “better” with each retelling.

  The law has changed in the half century I have been practicing and teaching it. If the past is the best predictor of the future, then it will change even more during the next half century. I will risk making some predictions about the changes we might anticipate.

  Oliver Wendell Holmes once admonished his young colleagues that “it is required [that you] share the passion and action of [your] time at peril of being judged not to have lived.”29

  I have lived the passion and action of my times. I now wish to share these experiences with my readers.

  FROM BROOKLYN TO CAMBRIDGE

  With Stops in New Haven and Washington

  1

  BORN AND RELIGIOUSLY EDUCATED IN BROOKLYN

  Williamsburg and Boro Park

  I was born on September 1, 1938, in a hospital—the first in my family not delivered at home. My parents lived in the Williamsburg neighborhood of Brooklyn, having moved as youngsters from the Lower East Side of Manhattan. Their parents were Orthodox Jews who had emigrated from Poland at the end of the nineteenth and the beginning of the twentieth century.1 When my mother was pregnant with my brother, Nathan, who is four years younger than me, we moved to the Boro Park neighborhood of Brooklyn, where I grew up and where my parents remained until their deaths. The Boro Park of my youth was a Modern Orthodox community of second-generation Jews. Following the end of World War II, some displaced persons who had survived the Holocaust moved into the neighborhood. The current occupants of Boro Park are Chasidic Jews who have moved from Williamsburg seeking to re-create the shtetels of Eastern Europe. (My daughter Ella and her contemporaries now see Williamsburg as a cool neighborhood—a far cry from the “old country” where grandparents with Yiddish accents lived when I was growing up.)

  My parents grew up in Williamsburg during the peak of the Depression. My mother, Claire, had been a very good student at Eastern District High School, graduating with honors at fifteen and a half. She then enrolled at City College in the fall of 1929—the first of her family to attend college. She was forced by her father’s deteriorating economic situation to leave before the end of the semester. She worked as a bookkeeper, earning $12 a week.

  My father, who was not a good student, attended Torah V’Daas—translated as “Bible and Knowledge”—Yeshiva in Williamsburg. He began to work during high school and never attended college.

  My grandparents knew each other from the neighborhood. My grandfathers were both chazanim, cantors, who sang the Jewish liturgy in small synagogues, called shteebles. They were involved in the founding of several Jewish institutions, including a free loan society, a burial society, the Young Israel synagogue, and the Torah V’Daas Yeshiva.2 Their day jobs were typical for their generation of immigrants. Louis Dershowitz sold corrugated boxes. Naphtali Ringel was a jeweler. My grandmothers, Ida and Blima, took care of their children. Each had eight, but two of Blima’s died of diphtheria during an epidemic. My mother, Blima’s second surviving child, nearly died during the influenza outbreak of 1917, but according to family lore, she was saved by being “bleeded.”

  Born toward the end of the Depression and exactly a year to the day before the outbreak of the Second World War, I was the first of more than thirty grandchildren on both sides of my family.

  My maternal grandfather had been married to my grandmother’s older sister, who died during childbirth, leaving two children. Pursuant to Jewish tradition, he then married the younger sister, my grandmother Blima, who was fifteen. In the 1930s, he traveled to Palestine by boat. Having little money, he worked as a mashkeach—the person whose job it was to make sure the Kosher food was ritually acceptable—to earn his fare. Once in Palestine, he purchased a small parcel of land on which he someday hoped to build a home, but he quickly realized that he couldn’t earn a living there and returned to Brooklyn. Several years later, he suddenly died. Since I was a toddler, I knew him only through family memories and sepia photographs. My grandmother, who still had three unmarried daughters at home, one son in the army, and another in California,3 could not afford to maintain her apartment, so my family moved in and my father paid the rent. We took in a border to help with the expenses, and I shared a room with her. After about a year, we moved to our own small apartment and then to the two-and-a-half-family house in which I grew up.

  My paternal great-grandfather, Zecharja, who was the first of us to arrive in America in 1888, died in 1921 at age sixty-two. His wife, Lea, died in 1941, at age eighty-two, and I vaguely remember her.

  My family has now been in the United States for more than half of our nation’s existence. Most of Zecharja’s numerous descendants have been very religious and relatively poor, giving rise to the family quip that the Dershowitzes have the lowest rate of wealth to time in America of any Jewish family.4 My grandfather Louis Dershowitz died when I was fifteen (he was seventy-one), so I knew him as a child. Though poor, he was respected for having saved many relatives from the Holocaust, by creating “jobs” for them as rabbis, cantors, ritual slaughterers, and other religious functionaries. The questionable affidavits he had concocted to “make up” these jobs helped to secure visas for twenty-eight of his European relatives, who arrived in America just bef
ore the outbreak of the war. A twenty-ninth relative, a young girl who was studying the violin in Poland, was trapped. My grandfather refused to give up on her, sending his oldest, unmarried son—my uncle Menash—into the belly of the beast to find and “marry” her, so she could come to America. Although the marriage was supposed to be a sham, it lasted for more than fifty years, ending with their deaths less than a year apart.

  Both of my grandmothers, Blima and Ida, lived to ripe old ages (Blima into her nineties, Ida into her eighties), and I knew them well. Blima played a significant role in my upbringing, since my mother worked and “Gramma Ringel” was always there to serve me milk and her homemade cookies when I came home from school.

  Among my earliest memories were vignettes from the Second World War, which ended when I was nearly seven. I can see my father pasting on the Frigidaire door newspaper maps depicting the progress of Allied troops. I remember hearing radio accounts, in deep, stentorian voices, from WOR (which I thought spelled “war”), announcing military victories. I can still sing a ditty (sung to the tune of the Disney song from Snow White):

  Whistle while you work

  Hitler is a jerk

  Mussolini is a meanie

  And the Japs are worse5

  The comic books we read during the war always pitted the superheroes against the Nazis and the “Japs,” and I wanted to help. I decided that if Billy Batson could turn into Captain Marvel by simply shouting “Shazam!,” so could I. And so, after making a cape out of a red towel, I jumped out of the window yelling “Shazam!” Fortunately, I lived on the first floor and I only sustained a scraped knee and a bad case of disillusionment.6