Alan M. Dershowitz - The Best Defense

First Vintage Books Edition, May 1983
Copyright 1982 by Alan M. Dershowitz

All rights reserved under International and Pan-American Copyright Conventions. Published in the United States by Random House, Inc., New York, and simultaneously in Canada by Random House of Canada Limited, Toronto. Originally published by Random House, Inc. in 1982.

The author is grateful to CBS Inc. for permission to quote material on originally broadcast November 20, 1977, over the CBS Television Network as part of the 60 Minutes program series. Copyright 1977 CBS Inc. All rights reserved.

Grateful acknowledgment is made to the following for permission to reprint previously published material:

E. P. Dutton & Co.: Excerpt from Bombs for Balalaikas by Yevgeny Yevtushenko, translated by Stanley Kunitz with Albert C. Todd, from Yevtushenkos Reader. English translation, Copyright 1962, 1963, 1965, 1967, 1972 by E. P. Dutton & Co., Inc.
William Morrow & Co.: Excerpts of letters, dated March 13, 1977, and July 23, 1978, from Next Year in Jerusalem by Avital Shcharansky with Ilana Ben-Joseph. Copyright 1979 by Avital Shcharansky.
New York Post: Excerpt from article by Robert Lipsyte dated August 3, 1977, entitled The Bergman Case: A Matter of Legalisms. Copyright 1977 The New York Post Corporation. New York Times Company: Excerpt from article by Myron Farber dated July I, 1974. Copyright 1974 by The New York Times Company. Reprinted by Permission.

Library of Congress Cataloging in Publication Data
Dershowitz, Alan M.
The best defense.
1. Trials United States.
2. Dershowitz, Alan M.
I. Title.
KF220.D37 1983 345.7302 8240426
eISBN: 978-0-307-75520-9 347.3052

v3.1

This book is dedicated with love to my parents
Harry and Claire Dershowitz
for encouraging and tolerating me through my Boro Park years
and to my children Elon and Jamin
for encouraging and tolerating me through my Cambridge years

This book has been a labor of love. I was fortunate to have had the assistance of friends, family, and colleagues who made the work seem like fun even when it consumed long hours. My son Elon provided excellent editorialand, even more important, common sensesuggestions. My son Jamin provided just the right degree of healthy skepticism. My brother Nathan and his son Adam read portions of the manuscript and made helpful suggestions. My mother, in addition to providing cookies and other nourishment during exhausting court proceedings, coordinated the family effort to recall our roots. And my father, in his own quiet way, has always been a source of support. My close friends and colleagues Jeanne Baker and Harvey Silverglate, who are supporting actors in several of the cases described in the book, were always there when I needed them. My editor, Rob Cowley, who is a master of his craft and of the art of gentle urging, helped at every turn. My publisher, Bob Bernstein, who has the knack of calling at just the moments when I most needed encouragement, urged me to write this book.

My students at the Harvard Law School played a central role. I used several chapters in my classes and received valuable feedback. Studentsnow distinguished young lawyerssuch as Cynthia Hamilton, Joanne Crispi, James Witkin, Laura Hanft, and Marjorie Heins, provided invaluable help. Betty Arnquist, Wendy Roth, Blue Tabor, and Anne Mandelbaum contributed valuable criticism and editorial comments. Other students too numerous to mention also assisted in the research, including, most recently, Elaine Mandelbaum, Mark Fabiani, and Donna Levin.

My colleagues at the Harvard Law School encouraged me in my efforts while not always agreeing with my conclusions. I especially want to thank John Ely, James Vorenberg, Phillip Heyman, Susan Estrich, and Alan Stone. The support services at the Harvard Law School were also invaluable, especially the help of Kaye Tousley, Sylvia Madrigal, Pam Foley, Debbie Reimal, and the people at the word-processing and Xeroxing centers. Sandy Schoenfein of Random House displayed enormous patience and real expertise in her copy editing.

Finally, the actors in the chaptersclients, prosecutors, judges, other defense attorneysprovided the grist. I have tried to be fair to them all, but to the extent that fairness is constrained by truth, I hope I have erred on the side of the latter.

One
GUILTY UNTIL PROVEN INNOCENT

2 Whatever Else It May Be, It Is
Not Murder to Shoot a Dead Body.
Man Dies but Once.

3 Would You Represent
The Meanest Man in New York?:
The Case of Bernard Bergman

Two
DISTURBING THE PEACE

4 Defending Pornography from Fundamentalist
and Feminist Censors: Deep Throat
and the First Amendment

5 How I Spent My Summer Vacation:
Nudity and Environmentalism on
the Cape Cod Beach

6 The First Amendment and the Vietnam War:
The Cases of the Stanford Stalinist
and the CIA Whistle-Blower

7 An American Lawyer in
the Soviet Court System

8 Is the Threat to Bring a Lawsuit
a Mental Illness or a Crime?:
The Cases of the Turnabout Judge
and the Fenway Park Cop

9 Capital Punishment for
the Sins of Their Father

Three
OBSTRUCTING INJUSTICE

10 It Takes One to Catch One:
The Case of Edmund Rosner versus
the United States Attorneys Office for
the Southern District of New York

A conspiracy of silence shrouds the American justice system. Most insiderslawyers and judgeswont talk. Most outsiderslaw professors and journalistsdont really know. Few of those who are outside the club ever get close enough to the day-to-day operations of the system to appreciate how it really works.

Some insiders wont talk because they have a stake in not exposing the dark underside of the legal profession. Others are afraid of reprisals. Indeed, the formal rules governing the legal profession discourage lawyers from publicly criticizing their professional brethren, and encourage them to promote public confidence in our courts and in the honor of our profession. Equally important is the informal understanding among insiders that they should criticize only within the club and not in public.

This dichotomy between insiders who know but wont say and outsiders who will say but dont know has deprived the public of a realistic assessment of the American justice system. In this book I try to break down that dichotomy. Although I am a law professor, I have been litigating cases at every level of our justice system for more than a decade. Because I do not rely on my legal cases for a living, I have less fear of reprisal than do most practicing lawyers. Because I insist that my students approach the law with rigorous honesty, I can hardly remain silent about the dishonesty I encounter in the real world of justice.