I’m not sure there’s a soul in the Jewish world who doesn’t know who Alan Dershowitz is. Made a full professor at Harvard Law School at age 28, one of America’s premier defense attorneys, a stalwart defender of Israel (though not of the settlements), and prolific author of books about the American legal system, Judaism, and Israel, Dershowitz was recently offered (and turned down) the job of Israel’s ambassador to the UN.
I’ve had The Best Defense on my bookshelf for ages. After spending years accumulating books, I’ve given myself the task, in recent months, of eschewing bookstores, book sales, and the library, and instead pulling out books that have been gathering dust on my shelves and reading them. (In the course of this exercise, I am evaluating which books I like enough to replace on my bookshelf to reread, lend, or recommend to the Cap’n, and which get tossed onto the pile for my next book swap. This, of course, makes more room for new books when I go back to collecting them.) I’ve been on a nonfiction reading streak, and The Best Defense appealed.
I have always found Dershowitz very readable. His intelligence and sense of humor come through no matter what he writes, and this book shows not only his great legal acuity but also a larger degree of humility than I’ve seen in many of his other books. (Published in 1982, it is one of his earlier books; perhaps the humility wore off over time as fame and fortune accompanied his career success.) This book is Dershowitz’s examination of some of the problems that exist in “American blind justice,” i.e. its lack of blindness. While he observes that the American judicial system is one of the better ones in the world, he has often come up against police perjury, prosecutors who withhold evidence and collaborate with witnesses who lie on the stand, and judges who are either activist or have a personal stake in the outcome of a trial which influences their decisions. The limitations of defense attorneys are not ignored, but Dershowitz makes a case for their necessity in our society, despite how their clients’ crimes and sleaziness are often projected onto them by the media and the public.
To illustrate his observations about the court system, Dershowitz draws on his colorful experiences as a trial lawyer defending JDL terrorists, a man tried for murder for shooting a corpse, First Amendment issues including pornography and a nude beach on Cape Cod, providing legal defense for Jewish refuseniks in the Soviet court system, and the case of the Tison brothers who were tried for murders their father committed, and among a few other cases. Some of the cases are more gripping than others (the Tison case had me riveted), and some were still unresolved at the time of publication, but all of them served as excellent examples of some of the flaws in the American judicial system.
It is ironic, but while I found myself very left-leaning in my youth (college and for many years after), I—as much as anyone else—criticized defense attorneys like Dershowitz for defending slimy characters like Leona Helmsley and O.J. Simpson: flashy, loud, aggressive defenders who seemed to revel in the limelight they themselves enjoyed while the media followed every motion and witness in the course of the trials. I say “ironic” because it should be the liberal thinkers in a society who should be the greatest proponents of the right of even the shadiest, most unsavory—and yes, guiltiest—characters in society to a quality defense. It is only since I’ve backed off from my unquestioningly liberal views that I have begun to see things differently, and Dershowitz’s critique of the seamier side of the judicial system, his vivid descriptions of the ways in which people accused of crimes are not dealt with fairly (or legally), and the reasons why a defense attorney must focus all his or her energy on providing a forceful, even aggressive, defense resonated with me. Dershowitz does not spare trial lawyers from his critique; he takes to task trial lawyers who compromise their clients’ interests through serving their own desire for fame, for a cozy relationship with prosecutors and judges, for laziness, for activism (when dedication to a cause is greater than that to a client), or for excessive integrity (when a “general reputation may be built on the imprisoned lives of those defendants whose short-term interest in freedom may have been sacrificed to the lawyer’s own long-term interest in developing a reputation for integrity”).
I’ve often wondered how defense attorneys sleep at night, having as they do the job of trying to get their clients (who are almost always guilty of the crimes they’re accused of) freed. Dershowitz answers this by writing, “I do not apologize for (or feel guilty about) helping to let a murderer go free—even though I realize that someday one of my clients may go out and kill again. Since nothing like this has ever happened, I cannot know for sure how I would react. I know that I would feel terrible for the victim. But I hope I would not regret what I had done—any more than a surgeon should regret saving the life of a patient who recovers and later kills an innocent victim.” This is an interesting analogy. The difference of course is that the surgeon who saves a life is keeping someone from dying, not from doing jail time (which is what most murderers get). And in this scenario, Dershowitz also doesn’t mention the surgeon knowing that his patient is a murderer, whereas the defense attorney seeks to keep a known murderer from being punished. In my view this is not a fair comparison. But I digress. I take Dershowitz’s point about a defense attorney’s job being that of helping his client go free. If I were accused of a crime (one that I’d done, or one that I’d not done), a zealous, savvy, highly skilled lawyer dedicated to nothing but securing my freedom would be exactly what I would want. In each of the cases he discusses having taken on, Dershowitz describes the tactics and strategies he and his legal team employed, from drawing on precedent-setting cases to prevent his clients from being sent to the electric chair, to rushing out to a barber for a conservative shave and haircut before defending clients before a court known to scorn “bearded, long-haired-hippies.”
Dershowitz is most persuasive when he discusses the freedoms that underlie even the very imperfect justice system in America. He writes, “Part of the reason why we are as free as we are, and why our criminal justice system retains a modicum of rough justice despite its corruption and unfairness, is our adversary process: the process by which every defendant may challenge the government. …I believe that defending the guilty and the despised—even freeing some of them—is a small price to pay for our liberties.” This is a compelling point: when justice systems are dismantled, or have no appeals process (the Cap’n reminded me of the Cardassian justice system, where the verdict is decided before the trial begins, and the trial is held merely to stir up the public and serve the government’s ends), then freedom is seriously compromised. Defense attorneys are “the final barrier between an overreaching government and its citizens,” words which would seem more predictable coming out of the mouth of a dyed-in-the-wool Republican than an active member of the ACLU. When Dershowitz traveled to China in 1980 to advise the People’s Republic on its criminal justice system, he was asked, “Why should our government pay someone to stand in the way of socialist justice?” His response is that “[s]ince not all defendants are created equal in their ability to speak effectively, think logically, and argue forcefully, the role of a defense attorney—trained in these and other skills—is to perform those functions for the defendant. The process of determining whether a defendant should be deemed guilty and punished requires that the government be put to its proof and that the accused have a fair opportunity to defend.”
Over the years I have become more suspicious of government power. It’s not because of any run-ins with the law, and it’s not because I’ve become rich. Rather, I believe I understand human nature better, and all of its temptations to stray from the proper path. (Sadly, this book confirms some of my darkest suspicions of human nature.) And as a Jew and an Israeli, I have also seen, both in history and in the present, the zealousness of the media, governments, and public opinion to convict a people and a nation of unspeakable crimes without proof or even a proper hearing. The court of world opinion is strikingly similar to the Cardassian courts, where nowadays Israel is guaranteed to lose its case, no matter what it is, before the trial even opens. Justice can, at times, seem to be as elusive as, well, peace in the Middle East.
In the end, I don’t know whether my liberal credentials have been enhanced or diminished by my views, which have been further shaped by reading Dershowitz’s book. On the one hand, my belief that everyone deserves a spirited defense in the court system would seem to argue in favor of my liberalism. On the other hand, my belief in that creed stems from a conviction that people are NOT basically good or trustworthy, and must be checked and balanced in an adversarial court system, which suggests a more cynical, conservative view. At the end of the day, I don’t suppose a label on my political views much matters. What matters is one of the statements Dershowitz closes the book with: “To me the most persuasive argument for defending the guilty and the despised is to consider the alternative. Those governments that forbid or discourage such representation have little to teach us about justice. Their systems are far more corrupt, less fair, and generally even less efficient than ours..”
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