A case that involved both science and logic arose in the context of the attempted murder prosecution of a young man who had shot a corpse, believing that it was still alive.  The case presented a series of perplexing scientific and logical riddles: When is a person who has been mortally wounded actually dead?  Can you kill a man who is already dead?  If not, can you attempt to kill a man who is already dead if you believe he is still alive.  

My client had watched one acquaintance, who was having a disagreement with another acquaintance, shoot him in the heart.  The shooter then asked my client to shoot the victim in the head, which he did.  On the first appeal, which I argued in Brooklyn, the court reversed the murder conviction on the basis of scientific evidence that it was impossible to know whether the victim was alive or dead at the moment my client shot him in the head, since someone else had shot him in the heart just moments earlier.  It ruled that the prosecution had not satisfied its burden of proving he was still alive when my client’s bullet shattered his brain.  The court also ruled that my client could not be convicted of attempted murder, on the ground that since it is factually impossible to murder a corpse; it is also legally impossible to attempt to do that which it is factually impossible to do.  On the second appeal, which I argued in Albany, the court agreed that my client could not be convicted of murder because “man dies but once,” but it concluded that he should be convicted of attempted murder.  I then brought a federal Habeus Corpus petition, and the federal court threw out the attempted murder conviction as well. My client went free.  This intriguing case, which I wrote about in more detail The Best Defense, is taught today in many law schools as part of the standard course on criminal law.  The issue of whether it is legally possible to attempt to do what is factually impossible—namely to kill a dead person—continues to confound new generations of law students.

Another attempted murder case presented a problem right out of the Bible.  My client was accused of attempting to kill his sister’s former boyfriend.  The boyfriend was suspected of burning down the sister’s house and burning her severely.  She ultimately died of her painful burns, but while she was still alive, my client went to her former boyfriend’s home, held a knife over his chest and said he would kill him unless he admitted his role in the fire.  The police burst into the apartment and disarmed my client before he could stab the former boyfriend.  My client was convicted of attempting to kill the former boyfriend, and I was retained to argue the appeal.  

I analogized the situation to the one described in the Book of Genesis when God told Abraham to sacrifice Isaac, and Abraham stood, knife in hand, ready to inflict the fatal wound when God’s angel came down and stopped him.  I argued that we can never really know whether my client would actually have killed the boyfriend had the police not intervened, just as we can never know for sure whether Abraham would actually have complied with God’s command.  There were other issues in the case as well and we won the appeal.  The state declined to re-prosecute and this client too went free.  


                    Anatoly Sharansky:  Death For Spying For the United States

Other potential death cases raised issues not of science, but of politics, diplomacy and economics.  The case that combined these elements also involved the client with whom I most closely identified personally.  He was a Soviet Jew who I never even met during the years I was fighting to save his life.  His name (at the time) was Anatoly Sharansky (now Natan Sharansky).  

Sharansky was a prominent and vocal defender of human rights, not only of his fellow Soviet Jews but of all victims of Soviet oppression.  He worked closely with Andrei Saklarov, the father of the Soviet nuclear weapons program who had become the leading voice for human rights in the Soviet Union.

Sharansky was arrested by the Soviet KGB in 2003 [check] on charges of spying for the United States—a charge that carried the death penalty.  I had previously represented two Jewish Refusenicks who had tried to steal a small airplane in which to escape to Israel, via Sweden.  They had been sentenced to death, so I knew that the threat of capital punishment against Sharansky was real.  Their death sentences against were later reversed and they were eventually allowed to emigrate to Israel.  But there was no assurance that similar efforts would help Sharansky, who faced the more serious charge of spying for an enemy.

I had been asked, along with Canadian law professor Irwin Cotler, to represent Sharanksy.  The request came from his wife, who was in Israel, and his mother, who lived in Moscow.  They had no money to pay for a lawyer.  We agreed to do what we could to save his life and, hopefully, secure his freedom.  

Our first job was to try to get the espionage charge dropped, since that was the one that carried the death sentence.  Because Sharanksy was accused of spying for the United States, I decided to go directly to the White House to try to persuade President Carter to issue a statement expressly denying the Soviet charge that Sharansky had been a CIA operative.  We faced great pressure from the CIA to continue the longstanding American policy of never affirming or denying anyone’s alleged association with the agency.  But after several requests, President Carter did issue the following statement:

     I have inquired deeply within the State Department and within the CIA, as to whether or not Mr. Sharanksy has ever had any known relationship in a subversive way, or otherwise, with the CIA.  The answer is “no.”  We have double-checked this, and I have been hesitant to make that public announcement, but now I am completely convinced. 

Shortly after President Carter made his unprecedented statement, the Soviet prosecutors dropped the espionage charge and took the death penalty off the table.  But they were still determined to see Sharansky die in prison.  The Soviets called it “special regime” imprisonment, consisting of a diet that no one could long survive.  The prisoners called it “death on the installment plan.”  

Sharansky’s wife pleaded with me to get him out of prison before he starved to death and before she was too old to have children.  We had saved him from execution; now we had to save him from starvation.  We had our work cut out for us.
We decided that the best way to keep him alive was to personalize him to the world.  If the world got to know Anatoly as a human being, rather than merely as another prisoner of conscience, it would become more costly, in terms of international reactions, to the Soviet Union if he were to die in the Gulag.  With this in mind, we set out to plaster his smiling face on every possible magazine cover, newspaper front page and television show.  We enlisted his very beautiful, very photogenic, but very shy wife (Natasha, now Avital) in our campaign.  Before long, his name became a household word and his image became familiar around the world.  His wife’s pleas to release him in time to father their children fell on receptive ears—at least outside of the Soviet Union.

At the same time, we filed legal briefs, lobbied for legislative action and convened academic conferences.  

Ultimately, after 9 years of unremitting efforts, we were able to arrange a prisoner exchange that resulted in the release of an East German spy, who I had been asked to represent in Boston, and Sharansky.  Because Sharansky was not a spy, but a human rights activist, he refused to participate in a “spy swap.”  The compromise we reached resulted in Sharanksy walking alone, and not as part of any exchange, across the Glienicke Bridge in Berlin, his book of Psalms in his hand.  


Sharanksy did get out in time to father two beautiful daughters, who I enjoy meeting every time I visit Natan and his wife in their home in Jerusalem.  There, but for Grace of God and the luck of having grandparents and great grandparents with the foresight to leave Eastern Europe, go I.  If Sharanksy’s grandparents had come to America and mine had remained in Europe, our roles could easily have been reversed.  That’s why helping to save Sharansky’s life was the case with which I had the closest personal identification.  It was also the case that required the widest array of weapons—law, politics, diplomacy, media, economics, persistence and luck—to win.  

Several years later, I was asked by a television talk show host, “In which case did you earn your biggest fee?”  Without a moment’s hesitation, I replied, “Sharanksy.”  The host was surprised.  “I didn’t know Sharansky had any money,” he exclaimed.  “He didn’t,” I replied.  “I worked on his case without any fee or expenses for 9 years, but when I saw him walk across the Glienicke Bridge, my eyes filled with tears of joy, and when he whispered in my ear the Hebrew words “Baruch matir assumrim” (“Blessed are those who free the imprisoned”), that was the biggest fee I will ever earn.”



                    My most ungrateful homicide client: Angela Davis

Clients whose cases I have helped to win generally respond in one of two ways:  some express great, sometimes excessive, gratitude.  They offer to do anything in exchange for you having saved their lives.  Others behave as if the case had never happened and you don’t exist.  I have seen former clients purposely cross the street to avoid even “seeing” me.  They don’t want to be reminded of the dark period in their lives during which they required a criminal lawyer.  In only one case did a former client show absolute ungratefulness for my role in helping her avoid a murder conviction.

During the year that I was a visiting scholar at the Center For Advanced Studies and Behavioral Science at Stanford, I was asked to consult on several aspects of the Angela Davis murder case.  Davis, who was one of the leaders of the American Communist Party, was accused of murder in connection with a shootout that had occurred at the Marran County Courthouse as part of an attempted escape of radical prisoners.  Davis was accused of purchasing and providing the shotgun that was used in the crime.  She was also suspected of having engineered the attempt to take hostages is order to barter them for the release of a prisoner she loved.  

I worked on jury selection as well as on some constitutional issues.  Davis was claiming that she could not get a fair trial in any American court because she was black, female and a Communist.  Part of the reason I took the case was to help assure that she did get a fair trial.  After several grueling months, she was acquitted and set free.  I don’t know whether she now believes she received a fair trial.  I do know that shortly thereafter I read that she was hired to become a professor at the University of California in Santa Cruz.  

Shortly thereafter, I read that she was going to Moscow to receive the Lenin human rights prize from the Soviet Union.  She said that she was pleased to receive the prize and that she would spend the rest of her life helping to free political prisoners around the world.  I called her office and gave them a list of prisoners of conscience in the Soviet Union—mostly Jews who had been imprisoned because they wanted to emigrate to Israel or to learn about their heritage.  (Sharansky was not yet among these prisoners, but he would soon join them.)  I asked if she would be willing to speak up on behalf of these political prisoners.  Several days later, I received a call back from Ms. Davis’s secretary informing me that Davis had looked into the people on my list and none of them were political prisoners.  “They are all Zionist fascists opponents of socialism.”  Davis refused to speak up on behalf of the Soviet dissidents.

Recently, I ran into an older and somewhat more reserved Angela Davis on the porch of the Chilmark Store on Martha’s Vineyard.  She was wearing a bicycle outfit and was cycling around the island with some mutual friends, including her trial lawyer in the murder case.  It was a strange scene in this bastion of bourgeois affluence to see these former radicals enjoying the comforts of capitalism in so relaxed a way.  I reminded Davis of my participation in her case and she expressed appreciation.  I also reminded her of her refusal to speak up on behalf of Soviet dissidents.  In her mellow response, she said, “well so many other people were speaking up for them, that I didn’t think it was necessary for me to add my voice.”  It’s interesting how time changes people’s memories.  I did not press her as to whether she would today speak up on behalf of Cuban dissidents, Chinese dissidents or other heroic people who stand up against what remains of Communist oppression.  

Angela Davis remains the best proof that in America, as distinguished from the countries she so admires, it is possible for a Black, Communist woman to receive a fair trial.  The key, of course, is for the trial to have the kind of high visibility and media attention hers received.  There are still far too many obscure defendants, of all races, who do not receive fair trials or fair sentences.  The struggle to achieve universal fairness and equal treatment is an ongoing one.  



                    Hare Krishna Murder

The most bizarre murder case I ever litigated involved a Hare Krishna leader in West Virginia, who was charged with a wide assortment of crimes, ranging from murder—to copyright infringement!  

My clients real name was Keith Gordon Ham, but he called himself Kirtanananda Swami, or just Swami, when he founded a Hare Krishna community in West Virginia, which he called New Vrindaban.  He became the absolute ruler of this cultish community, whose members testified that he exercised total control over all aspects of community life.  Vrindaban became a magnet for people who wanted to lose their identity beneath the saffron robes and changed names, including several members with criminal records and violent backgrounds.  The community expanded to 3,000 acres with 500 “devotees” and profits from solicitations that reached $10-12 million.  Much of this money was allegedly obtained by selling counterfeit copywrited images of sports teams and popular cartoon characters.  Hence the copyright charge.

The events that precipitated the murder prosecution were described by the court as follows:  

     The…incident involved the murder of devotee and community member Charles St. Denis on June 10, 1983. When community member Daniel Reid learned that St. Denis had raped Reid's wife, Reid decided to kill St. Denis. Before attempting to murder St. Denis, Reid consulted Swami. Swami instructed Reid that the killing was acceptable under Krishna scriptures, but that such action violated secular laws and that Reid might be caught and punished. Swami then directed Reid to talk to Thomas A. Drescher, a fellow devotee. When Reid approached Drescher and told him what Swami had said, Drescher testified he felt duty bound to help Reid kill St. Denis. The two then enticed St. Denis to Reid's house one night, shot and stabbed him several times, and then buried him in a pre-dug grave before he was dead. 

     [Another] incident likewise involved the murder of a devotee. In 1985, Steven Bryant, a former New Vrindaban devotee, began publishing statements accusing Swami of engaging in homosexual activity and permitting sexual molestation of children in the community. Around April of 1986, members of the Krishna community in Los Angeles notified Drescher that Bryant was in Los Angeles. Drescher received $2,500 from the New Vrindaban community, authorized by Swami, and flew to Los Angeles. He located Bryant and shot him twice in the head.  


Swami and several of his lieutenants were convicted and sentenced to long terms of imprisonment.  I was asked to appeal Swami’s conviction.  I read the transcript of the trial and found it to be filled with prejudicial evidence that was irrelevant to whether Swami was responsible for the crimes of his followers.  I took this case not because I approved of anything about Swami, but because I believe that if the most reviled defendants are not afforded a fair trial, there is grave risk to all defendants.  Greta Van Susteren, then a lawyer now a TV commentator, was retained by one of the lutenants.  


I argued that the prosecutors had deliberately “thrown a skunk into the jury box” when they introduced irrelevant evidence that Swami had engaged in a homosexual relationship with a follower.  To a West Virginia jury back then, this could be massively prejudicial.


In addition, the prosecution introduced evidence that teachers at the community school had molested children and that Swami was aware of this but did nothing.  Finally, they introduced:


      “a videotape segment from the television program West 57th Street (a "news" exposé program). The videotape showed a child of the New Vrindaban community stating that he prayed "to" Swami, a statement generally offensive to the religious sensitivities of typical jurors. More inflammatory was a statement by Swami comparing women to dogs and condoning lightly slapping one's wife for disciplinary reasons.”


I argued the appeal before a panel of the U.S. Court of Appeals for the Fourth Circuit consisting of three elderly conservative judges in Charleston, South Carolina.  I could not imagine a group that would be less sympathetic to a Hare Krishna guru accused of the horrendous crimes of which my client stood convicted.  But my wife’s older cousin, Morris Rosen, an experienced lawyer from Charleston, cautioned me not to give up.  “These old-line Southerners care about justice, and they don’t have ambitions beyond their current job.  They’ll give your client a fair shake as long as you don’t overstate your case.  Be straight with them and they’ll be straight with you.”  


My cousin, who was himself “a good ol’ boy,” was absolutely on target.  I argued in a low key manner, focusing on precedents from the court, and especially from the three judges.  In their decision, they followed the law, concluding as follows:


     “We accept without need of extensive argument that implications of child molestation, homosexuality, and abuse of women unfairly prejudice a defendant. Indeed, no evidence could be more inflammatory or more prejudicial than allegations of child molestation. When evidence of a defendant's involvement in several of these activities is presented to the jury, the risk of unfair prejudice is compounded. In such a case, we fear that jurors will convict a defendant based on the jurors' disdain or their belief that the defendant's prior bad acts make guilt more likely. Furthermore, we are especially sensitive to prejudice in a trial where defendants are members of an unpopular religion.”


The court in a 2-1 decision reversed the convictions.  The rule of law prevailed over the prejudices of men and women.  






                    The Case I still can’t talk about:  Chappaquiddick

There is one homicide case that I still can’t say very much about, even though all the principles are dead and the case is more than 40 years old.  I was one of the lawyers involved in the Chappaquiddick case—the investigation of Senator Edward Kennedy for driving his car off a bridge on the Island (or peninsula of) Chappaquiddick, resulting in the drowning death of Mary Jo Kopechne.  

1969 was an eventful summer.  My family and I were on Fire Island anticipating watching a man walk on the moon.  I had no idea how much more exciting the summer would become.  

I received a call from one of Senator Kennedy’s aides, telling me that the Senator had been involved in a fatal automobile accident and asking me to make my way to Martha’s Vineyard—a place I had never visited.  I was asked to become part of the legal team being assembled in anticipation of the upcoming criminal investigation.  My job was to prepare a brief concerning the rights of the young women (they were referred to as the “boiler room girls”, because they had worked on Kennedy campaigns from an office that had once served as a boiler room) who had been vacationing on Chappaquiddick along with Senator Kennedy and several of his friends.  The women who had shared a house with Mary Jo Kopeche were being subpoenaed to testify at an “inquest” regarding the tragedy.  

There was very little law on the rights of witnesses or potential defendants at this sort of hybrid hearing which is neither a trial nor a grand jury proceeding.  One important issue was whether or when their testimony, which might require them to divulge personal matters, would be made available to the media, which was seeking every possible tidbit of information—or gossip—about the events surrounding the tragedy.  I worked with my colleague, Professor Charles Fried, and we produced a brief that succeeded in keeping the testimony of the women confidential during the course of the criminal investigation.

I also consulted with the lawyers responsible for trying to prevent Senator Kennedy from being charged with vehicular homicide or some other serious crime.  We succeeded, and the Senator ultimately pleaded guilty to a relatively minor offense.

I remained close to Senator Kennedy until his death, consulting with him on numerous projects involving criminal law, constitutional law, judicial appointments, and human rights.  Ken Feinberg, who served as his chief-of-staff and in many other capacities, recently told me that before anything involving these issues left his office, Senator Kennedy would tell his staff members, “check it with Alan.”  It was high honor and privilege to assist so great a senator on so many occasions.  The last time I was him was just months before his death when he invited me to sit next to him for several innings during the opening game of the Red Sox season at Fenway Park on April ___, 2010.  




                    Defending Soldiers

I have a policy of representing, without fee, soldiers who risk their lives for our liberties and are charged with killings growing out of their military service.  I have helped to defend several soldiers, most prominently Colonel Michael Steele, the real life hero of the tragic events in Mogadishu that gave rise to the film “Blackhawk Down.”  I have also helped to defend ordinary enlisted men accused of unlawful killings of non-combatants.  

Several of Colonel Steele’s enlisted men had killed Iraqi civilians following a deadly attack by Iraqi militants against U.S. soldiers.  Colonel Steele was being investigated for instructions regarding the rules of engagement that he had given to his men prior to the killings.  Some higher-ups believed that his speech had incited the killings, or at the very least had created an atmosphere in which such killings would be seen as acceptable.  Colonel Steele adamantly denied any such responsibility and asked me to help his military lawyers prepare a defense to any such charge.

The rules of engagement for terrorist groups are confusing at best.  The directive Colonel Steele had received granted him the authority to target “groups, cells and facilities belonging to terrorist groups.”  How to distinguish such groups from non-combatants in the fog of asymmetric warfare, in which terrorists blend into the civilian population, is one of the most daunting challenges of modern combat.  After conducting extensive research on the applicable law and on what Colonel Steele had actually told his men, I was convinced that he had complied both with the letter and spirit of the laws of war, and that the soldiers who had killed civilians were not following his lawful directives.  We prepared a brief arguing against any charges been brought against the Colonel.  

In the end Colonel Steele was not charged with any crime but his career was harmed by the allegation.  In appreciation for my work on his case, the Colonel sent me an American flag that had been “flown for 9 minutes and 11 seconds over the 3rd Brigade Combat Team Head Quarters, Tikrit, Iraq” near a flag that was “hanging inside of Building #7 on the morning of 11 September 2011.”  In his letter accompanying the flag, Colonel Steel explained that a policeman, ran into Building Seven right after the attack to help get everyone out.  On his way out, he saw the flag in the atrium and took it down.  “The building came down about ten minutes later.”  The policeman gave the Colonel the flag to take with him into combat.  Colonel Steel ended his letter with the following words:  “My sincerest thanks, Alan, for all you have done for me and for the men of the Rakkasans.”  The flag stands in a place of honor in my home office, as a reminder of those who have given their lives to defend our liberties.  

The complex issues surrounding the war against terrorists plays out not only on the battlefields of Iraq and Afghanistan, but in Israel and Gaza as well.  I stand ready to defend Israeli soldiers and commanders who have been falsely accused of killing Palestinian civilians in their efforts to protect Israeli civilians from terrorist rocket attacks.  In 2011, I traveled to the Hague in an effort to persuade the prosecutor of the International Criminal Court not to bring charges based on the deeply flawed “Goldstone Report,” whose conclusions Richard Goldstone himself subsequently repudiated.  I have represented the Mossad in its efforts to prevent prosecution of its agents by foreign governments.  In 1999, I received a letter of thanks from the head of that shadowy organization, which included the following:

     “I remember the energy you showed when we came to you seeking both advice and action.  You threw yourself into the fray and showed every possible willingness to give us both your time and renowned counsel.

     As you know, there is no greater “Mitzva” in Judaism than “Pidyon Shevuyim”—prisoner release.  And nevertheless, not every person would be prepared to be associated with “one of us.”  So be it you, for your part, acted in the best and nobles of our traditions.

     We wish you well; we thank you for what you did and what you were willing to do.  May we all live to see the day when a profession such as mine gives way to more pleasant occupations.  There is still some way to go before this comes about.”

Tragically, the world is still far from a time when those brave men and women who serve in the United States and Israeli armed forces and intelligence services can pursue “more pleasant occupations.”  Until that day arrives, I will always remain available to lend my time and counsel in support of their noble efforts to combat evil.  



                    Helping the prosecution keep an FBI murderer in prison

I’m a defense lawyer.  Unlike many current defense lawyers, I never served as a prosecutor (though I advise my students who want to become defense attorneys to work in a good prosecutor’s office for a few years.)  Also unlike some defense attorneys, I admire good prosecutors, who do their jobs ethically and professionally.  The adversarial system of justice requires zealous prosecution as well as zealous defense.  Good prosecutors are the “gatekeepers” of justice: they decide which of the many cases that come before them to prosecute, which not to prosecute, what charges to seek, when to plea bargain and how high a sentence to recommend.  Bad prosecutors—those who base such critical decisions on political, personal, financial or other corrupt considerations—can do enormous harm to our system of justice.  I’ve been privileged over my career to know some extraordinary prosecutors.  I’ve also been privileged to help expose some corrupt prosecutors, policemen and FBI agents.  

The case of John Connolly was an example of both.  In that highly-charged case, which was the subject of the semi-functional, but mostly fact-based, film “The Departed,” I helped an excellent prosecutor keep a corrupt FBI agent in prison.  The prosecutor who asked for my help is the State Attorney of Dade County Florida, which covers the City of Miami and several smaller cities.  Katherine Fernandez Rundle replaced Janet Reno in 19__, when President Clinton appointed Reno to serve as Attorney General of the United States.  She has been repeatedly reelected and served with distinction since.  

John Connolly was a high ranking FBI agent in Boston, who had grown up in the “Southie” neighborhood of Boston along with the notorious “Whitey” Bulger, who was responsible for dozens, perhaps hundreds, of cold-blooded murders, and his corrupt younger brother William “Billy” Bulger who served as President of the Massachusetts Senate and then President of the University of Massachusetts, before he was forced out of office by Governor Mitt Romney.

During the reign of the Bulger brothers, Billy served as the Godfather and Whitey as the enforcer of a systematically corrupt political, economic and legal system.  Nothing got done—no large buildings were constructed, no important jobs secured, no political appointments made—without “tribute” being paid to the Godfather.  If anyone crossed Billy, he had to worry about being literally killed by Whitey.  If anyone crossed Whitey, he had to worry about suffering political or economic death at the hands of Billy.  For example, when a state trooper stopped and searched Whitey at Logan Airport, finding a large bag filled with cash, the trooper found himself demoted, disgraced and ultimately driven to suicide.  And when Whitey was about to be indicted, Billy’s protégé, John Connolly, tipped the gangster off, allowing him to escape and become a fugitive for __ years.  Connolly also tipped off Billy to the details of an investigation that targeted him for extorting a half-million dollar bribe from a Boston builder.  

But these were not the only tip-offs John Connolly provided the Bulgers.  He also gave Whitey the names of “stool pigeons” who were about to inform or testify against him—in other words who had to be “silenced” to protect Whitey and his colleagues.  

Several murders were plainly attributable to this leaking of information from the FBI to gangland killers and hit men.  One such murder was committed in the Miami area and John Connolly was successfully prosecuted for it by the State Attorney’s Office.  The problem was that several years had passed between the murder and the prosecution and Connolly had a plausible statute of limitations argument on appeal.  

I was asked by State Attorney Rundle to consult with her appellate lawyers and to prepare them for what they expected would be a grueling oral argument.  I agreed and worked with them, and with federal prosecutors in Boston, on the appellate brief.  I also conducted a “moot court” in which I played judge and asked the hardest questions I could come up with.  The “moot court,” as it turned out, was more grueling than the actual argument, and the prosecution won the appeal.  It was the first time I recall cheering when I heard that the prosecution had won an appeal.  

There is nothing more corrosive to the administration of justice than corrupt law enforcement officials (except, perhaps, corrupt judges, several of whom Billy Bulger had appointed to “his” bench).  The Bulger gang is now history.  Whitey and Connolly are in prison, probably for the rest of their lives.  Billy is “retired” from politics, but still widely admired by some in Boston, who ought to know better.  

                    Defending a man who admitted his guilt

The myth that guilty clients, even those who have committed murder will confide their guilt to their trusted lawyer, is widespread in literature and reflected in legal rules that encourage a relationship of trust between lawyer and client.  The reality is that guilty (as well as some innocent clients) don’t trust their lawyers with their deep, dark secrets.  Most believe that their lawyer will work harder for innocent defendants than for guilty ones, so they lie through their teeth.  

They claim, especially at the beginning of their relationship with their lawyer, that they are the totally innocent victims of a horrible injustice.  They admit nothing.  In order to get some sense of what actually happened, I ask them the following question:

     “If your worst enemy, the person behind this horrible injustice, were to testify against you, what lies would he testify to?  What would he say you did?”

The answer they give often comes close to what really happened.  In this way, I obtain a working knowledge—always subject to reevaluation based on new evidence—of what may have occurred, without directly accusing my new client of being a liar.  

Only one client who was accused of a killing has admitted to me that he was guilty.  He really had no choice, since the very fact of his guilt was an essential element of his defense.  The case was a strange one from beginning to end.  Not only was my client guilty of having participated in a crime that resulted in the death of a young woman, he also—it turned out—was a government informant who was providing information to the police as to what he and his group were doing.  

I have related this story in detail in The Best Defense and will not repeat it here, except to describe how it feels to win a case on behalf of an admittedly guilty defendant.  Not only did he go free as the result of our legal arguments, but all of his co-conspirators—the ones who actually planted the smoke bomb that suffocated the woman—went free as well.  (My client, who was an engineer, had constructed the smoke bomb, knowing that it was going to be placed in a crowded area.)

When I first undertook the pro bono representation of Sheldon Siegel, he faced a possible death sentence.  I had no idea that he was informing against his colleagues in the Jewish Defense League at the same time that he was making bombs for them.  Informers are a peculiar lot, often undecided about which side they are on—other than their own side.  Siegel was committed to the ideology of the JDL, including their sometime use of violence to make their point.  But he was also desirous of protecting his own head and he knew he was vulnerable to prosecution for the bombs he had constructed that had been used against Soviet targets in the United States.  He hoped to avoid prosecution by providing the government with selective information about his JDL colleagues and their plans.  He also hoped the JDL would never find out that he was playing both sides against the middle.

One of their plans—to plant a smoke bomb in the office of Sol Hurok, a Jewish impresario who brought musicians to the United States from the Soviet Union—went awry and a young Jewish woman named Iris Kones died from inhaling smoke from a bomb that was intended to disrupt but not to kill.  Because the bomb was inherently dangerous and caused death, the perpetrators were indicted for capital murder.

In the end, I was able to capitalize on Siegel’s status as an informer, the fact that he was first discovered by the use of an unlawful wiretap, and the promises that were made to him in order to secure his cooperation.  We obtained a legal ruling from the United States Court of Appeals that ordered the trial judge to set all the defendants free.

As the trial judge implemented that decision, my client and his co-defendants started to leave the courtroom, congratulating each other and laughing.  The judge turned to them in anger and said, “Do you know who isn’t in court today? Iris Kones.”  As my thoughts turned to the innocent victim of the Hurok bombing, I heard the judge’s voice grow louder and angrier:  “Someone has committed a dastardly, vicious, unforgettable crime; someone is frustrating the administration of justice in a case that, in my mind, involves murder.  People who deliberately do so will learn the power of the law even if there are those who have literally gotten away with murder.”  While enunciating these final words, the judge averted his eyes from the young defendants and focused them directly at me, almost as if to say, “And you are responsible.”

His words went through me like a knife.  Never had I been so uncomfortable as I was then, with the case over and my client entirely victorious.  He was right.  In one sense I was responsible:  I had devised the novel legal strategy that resulted in the release of guilty defendants whose crime had caused the death of an innocent young woman.  

I sat in court for a full hour after everyone else had left.  I wanted no part of the victory celebration.  I could not forget Iris Kones.  I’ve thought of her often and of other victims of my clients who have gone free because of my legal arguments and my investigative work.  I think especially of Iris Kones because she is the only homicide victim who I know was killed by defendants who I know were guilty and went free.  I suspect there were others as well, but I can’t be absolutely sure of any but Iris Kones, because my client in that case told me, and the world, that he was guilty.

I also think of Iris Kones because her family—who are active in both Jewish causes and Harvard University—constantly remind me, and all of our mutual friends and associates, of my role in freeing the murderers of their relative.

Although I don’t believe in divine justice, it is true that Sheldon Seigel died at a very young age after an unsuccessful heart transplant.  His premature death didn’t make me feel any less responsible for the unjust, but legally proper, result I helped produce on his case.  



The killing of John Lennon

Another death for which I have long felt some responsibility was the murder of John Lennon by Mark Chapman in 1980.  Lennon was in the United States on that fateful day because I helped him avoid deportation back to England in 197_.  Had our legal team not been successful in stopping the Nixon Administration’s efforts to deport Lennon on trumped up allegations relating to his use of marijuana in England, Lennon would have been deported and banned from the United States.  It is highly unlikely (though not impossible) that Chapman would have stalked and shot him on the streets of London or Liverpool, as he did on Central Park West in New York.

I was retained by an excellent deportation lawyer named Len Wildes to write a legal memorandum on the impropriety of the deportation request.  (My fee was to be a record album signed by John Lennon: Lennon signed it; Wildes lost it; and my children nearly killed me!)  We won the case and Lennon continued to live in Dakoda for the ___ years before he was killed.

His killer, Mark Chapman, had no money to hire a lawyer and so the court appointed a former student of mine and friend Jonathan Marks, to represent him.  Marks is a brilliant and innovative lawyer who wanted to raise a defense based on Chapman’s mental state.  He asked me to consult with him on the case, but I didn’t feel comfortable helping a defendant who had killed my former client.  So I declined.  

Several years after Chapman was convicted, I happened to run into Yoko Ono at an art auction.  I told her how sad I was that we had won the deportation case, because if we had lost, John would still be alive.  She became angry at what I had said:  “Don’t ever think that,” she admonished.  “Those ___ years were the happiest in his life and mine.  He gave me John Ono.  You did a good thing.”  She reached over, kissed me and thanked me.  I still feel somewhat responsible for what happened on that awful day in front of the Dakoda.  




                    Dealing with the family of homicide victims—then experiencing it

Whenever I defend an accused killer, I’m asked how it feels to be up against the family of the victim.  It’s a hard question, even when asked in the abstract.  In one case I was confronted directly by the mother of the victim, who thrust a photograph of her murdered son in my face. 

My client was a woman who had admittedly shot and killed her husband.  She claimed that she had killed him in self defense after he tried to kill her.  The problem was that the evidence showed that after she emptied her gun into his head, she reloaded and emptied it again into his body.  She was found guilty of premeditated murder and asked me to try to get the conviction reversed or reduced to manslaughter.

I argued the appeal in the Maryland Court of Appeals.  I was satisfied that I had done the best I could with a difficult fact pattern.  As I was leaving the courtroom feeling pretty good about myself, an elderly woman approached me.  “You did a fine job, sir,” she began.  I thanked her and started to walk away.  “The man she murdered was my son,” she politely continued, “and I want you to know that my son never tried to kill her.”  She looked me straight in the eye and persisted:  “He would never do such a thing.  He was a fine young man.  She was just trying to get rid of him.  I want you to know the truth regardless of how the court decides the case.”  She showed me his picture:  “Look at him.  Look at his eyes and tell me whether you think he could try to kill her.”  

I looked at the picture and simply said “I’m sorry for your loss.”  The woman began to cry as she walked away.

I couldn’t sleep for several days as the picture of the sobbing mother holding her dead son’s photograph kept popping into my head.  Maybe he hadn’t tried to kill her.  Maybe my client made up the story to justify a cold-blooded murder.  Maybe not.  Nice looking people often do unnice things.  You can’t tell a killer by his eyes—or by his mother.  I could never know.  All I could go on was the evidence that had been presented at the trial.  

I will never forget this encounter with the victim’s mother.  It still haunts me, as do all the other possible victims of what my clients may have done.  Nobody ever said it would be easy to be a criminal defense lawyer, and it hasn’t been.  Any defense lawyer who says he doesn’t lose sleep over the moral ambiguity and complexity of his role is either lying or is unworthy of the responsibility of representing the possibly guilty in order to prevent the conviction of the possibly innocent.  

The Rubin case itself was convoluted in the extreme.  It actually involved several cases.  Rubin claimed to have evidence that her estranged husband, who she admittedly shot, had tried to poison her previous lover who had tried to beat her up.  She then developed a personal relationship with one of her investigators and an unusual relationship with several of her lawyers.  Eventually, after years and years of litigation, her conviction was reversed on the ground that several of her trial lawyers were guilty of a conflict of interest that denied her the effective assistance of counsel under the Sixth Amendment.  I still have no idea whether the victim’s mother was correct in her assessment of her dead son.  The situation seems a bit more complex, but that’s often the case when you drill down to the real story behind the killing.      

In July of 2011, my own family learned what it felt like to become the victim of a possible homicide.  My brother’s beloved wife, Marilyn, was killed while riding her bicycle on a New York City street.  Marilyn was a brilliant lawyer who had just retired from being a judicial referee in the New York Matrimonial Court.  Her sudden death was devastating to my brother, their children and our entire family.  She had been run down by a United States postal truck and rushed to the hospital where a team of doctors worked feverishly to cut off her bike helmet and try to save her life.  They couldn’t help her and she died.

Because New York City, like many large urban areas, has security cameras on nearly every block, my nephew (who is an engineer) and I were able to view video footage of the event from several different angles.  What we saw was a mail truck and an unidentified van barreling down a narrow street in what appeared to be a game of “chicken.”  Neither would give the right of way to the other, so they both decided to drive down the narrow street in tandem.  The mail truck struck my sister-in-law.  It then stopped, appeared to look back, and proceeded to drive away.  It stopped again and then made a sharp left turn into the basement of the mail building.  

Upon viewing the video and talking to witnesses, we came to believe that Marilyn had been the victim of two crimes:  negligent vehicular homicide and leaving the scene of an accident.  Suddenly our family became the victims seeking justice from a reluctant prosecutor.  It was a painful shifting of roles, as my brother demanded a thorough investigation and prosecution of the offending driver or drivers (the driver of the van was never identified or caught).  We were now using technology and engineering science to try to prove criminal guilt on the part of the mail truck driver.  In the end, the prosecutor charged the mail truck driver with leaving the scene of an accident, but not with causing Marilyn’s death.  This horrible tragedy made me better understand what it feels like to be the family of a homicide victim.  


                    Defending the Former President of the Ukraine Against Murder Charges

In T.S. Eliot’s famous play Murder In The Cathedral—which is loosely based on historical events—King Henry II is anxious to be rid of Thomas Becket, the Archbishop of Canterbury.  Unwilling to bloody his own hands, the King hints of his wishes to several loyal knights by issuing a rhetorical challenge:  “Will no one rid me of this turbulent priest?”  The knights, believing they are following the King’s command, then murder the Archbishop in the Cathedral.

Lawyers and historians have long debated whether the King was legally, morally or historically guilty of Becket’s murder.  In 2011, I was asked to become involved in what prosecutors believed was a modern-day, real-life variation on murder in the Cathedral.

My client was the former President of the Ukraine, Leonid Kuchma.  Ukrainian prosecutors were investigating him for ordering the murder of a journalist who was critical of the government.  The journalist was murdered during President Kuchma’s term in office, and the resulting scandal contributed to the ending of Kuchma’s political career.

Over the next several years, there were investigations but they all exculpated the former president.  But now, a decade later, the prosecutors claimed they had a smoking gun:  a surreptitiously recorded conversation involving President Kuchma in his “oval office” making statements about the murdered journalist akin to those made by King Henry II about the Archbishop.

The conversations were allegedly recorded on a small Toshiba digital recorder that had been secreted beneath a couch in the president’s office.  The voice on the recording was unmistakably that of President Kuchma and the words—if he had indeed uttered them—were damning and incriminating.  

My brother and I were retained by a former student of mine, Doug Schoen, a brilliant political strategist who was counseling the President’s family.  Our job was to advise the Ukrainian lawyers with regard to the recording and other legal and factual issues.

I flew to Kiev to meet my client.  It was an emotionally wrenching trip for me, since my family—including many who were murdered during the Holocaust—came from areas not too far from Kiev.  I wanted to visit Babi Yar, the site of one of the worst mass slaughters of Jewish residents of the area.  I had been told that some members of my mother’s family were almost certainly among the tens of thousands of victims of the Babi Yar massacres.  I asked to visit the memorial as soon as I got to Kiev.  I was shocked to see that there was hardly any memorial to the murdered Jews.  A current resident of Kiev who visited the area, which is just outside the center of town, wouldn’t even know that the Jewish residents of Kiev were gathered in the area and systematically shot and thrown into pits.  The tiny memorial has a faded plaque that is extremely vague about what had happened.  I knew that under the Soviet regime, there had been denial and silence.  I knew that from the famous poem by the Soviet dissent poet Yevgeny Yevtushenko, 



which begins:

     “No monument stands over Babi Yar
     A steep cliff only, like the rudist headstone
     I am afraid.”

Now there is a monument, but it is unworthy of that term, and it is not as if the city of Kiev doesn’t know how to build giant monuments, if it chooses to.  In the center of Kiev stands a monumental statue to Bohdan Khmelnitsky, who had conducted pogroms in the 17th Century that had slaughtered tens of thousands of Ukrainian Jews.  To this day, Khmelnitsky’s picture adorns Ukrainian currency.

It was not an easy visit either for me, for my wife or for my brother (who made a separate visit with his wife).  It was especially difficult for his late wife Marilyn, whose father’s entire family had lived in the Ukraine, where almost all of them were murdered during the Holocaust.  The difficulty was exacerbated when one of the Ukrainian lawyers with whom I was working was found dead in his bed just hours after we completed an evening work session and hours before we were to resume our work in the morning.  The official cause of death was ruled a heart attack, but the KGB—whose role in the case we were investigating—is an expert on giving enemies “heart attacks.”  We were there to save the life and liberty of a Ukrainian political leader and we got down to work.

President Kuchma immediately told me that although it was his voice on the smoking gun recording, it was not his words, as least not in the sequence that appeared in the transcript. I listened to the recording but could not tell very much because the words were Russian and they were difficult to hear.

I told my client that I too had been the victim of a doctored recording in which my voice and words had been edited and re-sequenced to make it sound as if I had said the exact opposite of what I had actually said.  72   This fake recording had been made by a man named David Marriot, who had offered to be a witness in the Claus Von Bulow case.  He had asked me for money and I told him it would be improper to pay him for his testimony and we wouldn’t do it.  He surreptitiously recorded our conversation on a tape and then simply cut and spliced the tape to make my refusal to pay him sound like a willingness to pay him.  His splicing job was so amateur—he used scotch tape—that our expert was able to demonstrate it without any question.

But times had changed, and the recording at issue in the Kuchma case had been digital.  Changes on a digital recording are much more difficult to detect than on a tape recording.  It was our job to demonstrate that the Kuchma recording, like mine, had been tampered with to change the meaning of his words.  It would be a challenging scientific task in this new age of recording technology, but my team was up for it.  We retained the most sophisticated audio-scientists in the world, who were able to demonstrate that words could be digitally re-sequenced to alter the meaning of a conversation without the change being detectable.

We also established that the recording device and the recording had been repeatedly removed from the chain of custody, thereby enabling the tampering to be accomplished.  Finally, we proved that under Ukrainian law, the recordings had been made and handled unlawfully.  The end result was that the court ruled that the recordings could not be used against President Kuchma in any criminal case and the prosecution was dropped.    
Murder Cases I Didn’t Take

For every client whose case I agree to take, I must, regretfully, turn down many.  Every week, I receive dozens, sometimes hundreds, of calls, emails and letters asking me to review cases.  Many of them involve homicides, because some of my most highly publicized cases have involved clients accused of murder. Because I am a full time professor, my time for litigation is limited.  So I must choose only a handful each year among the many worthy cases.  I have several criteria for choosing which cases I will accept.  I rarely turn down cases in which defendants face the prospect of the death penalty by an American court, and when I do, I try to get another lawyer, often a former student, to take the case.  (The same is true for cases involving freedom of speech or other First Amendment protections.)  


I never turn down a homicide case because it is too hard or because I am too unlikely to win.  When I took the Von Bulow case, nearly everyone thought we had no chance of winning.  New York Magazine, in an article about my involvement in the case, quoted “one of the country’s leading criminal lawyers” predicting that I would lose the appeal:  “He’ll add something useful and do a brilliant analysis of the record.  He isn’t going to make it.  Of some guys you can say “That’s a patient he isn’t going to save.  He can only make him more comfortable.”

Esquire magazine had commented that the Von Bulow appeal “looked like another ritualistic exercise in civil libertarian dogma” that “would churn through the courts simply because there was money available and a set of arguments that could be made, rather than because [I] had any real sense that justice in some way had gone astray.”

And one commentator snidely observed that Von Bulow’s “recruitment of Harvard Law Professor Alan Dershowitz shortly after his conviction would tend to reinforce” the view that Claus Von Bulow “was no longer protecting his innocence, merely the methods used to catch him…Dershowitz enjoys a wide reputation as a last resort for convicted criminals, being especially keep at finding legal loopholes that render his clients’ convictions unconstitutional.”

Similar predictions were made about the O.J. Simpson case and others that I subsequently won.  I actually prefer difficult and challenging cases which the pundits claim are unwinnable.  I also never decline clients because they are too unpopular, too controversial or too guilty.

Why do I defend people who I know are guilty?  Because that’s the job of a criminal defense lawyer and I have chosen that noble profession.  But why did I choose a profession in which my job would be to defend guilty, as well as innocent, defendants?  Because unless the guilty are vigorously defended, the innocent will be at greater risk of being prosecuted, convicted and executed.  The reality is that the vast majority of people who are charged with serious crimes are factually guilty—that is, they did it!  Thank goodness for that.  Would anyone want to live in a country where the majority of people charged with crime were innocent?  That may be true in Iran, China and Belarus, but it is not true of the United States, England, Israel and other countries with a zealous defense bar.  And in order to keep it that way, everyone accused of crime, whether innocent or guilty, must be vigorously defended within the rules of law and ethics.  I’m proud to be a leader of the criminal defense bar and to have successfully defended many accused criminals, some innocent, some guilty.    

There are, however, certain categories of clients I will almost never accept.  These include professional criminals who are in the business of doing illegal things and will almost certainly go back to that business if I get them off:  drug dealers, Mafioso, terrorists, gang leaders.  These professional criminals are entitled to counsel, but I do not want to become a “consiglieri” to a crime family (remember Tom Hagen in the Godfather) or an advisor to those who are in the business of committing crimes.

I also do not generally represent fugitives from justice while they are still “on the lam.”  A lawyer’s job does not include helping a client illegally evade or escape from justice.  

I try to take interesting cases that will have an impact on law, cases in which an injustice has been done or seems likely to be done, and cases involving my personal areas of expertise (science, constitutional law, psychology).  I take about half of my cases on a pro bono basis and the other half on a fee basis.  I use the fees to support the expenses of my pro bono cases.

Among the most interesting cases I declined have been accusations of murder committed outside the United States and involving foreign leaders.  As an American lawyer, I have less of an obligation to take foreign cases than I do to take American ones.

Perhaps the most difficult case for me to have turned down involved the Israeli student, Igal Amir, who was accused of assassinating the late Yitchaz Rabin, the then Prime Minister of Israel.  Several days after the crime that rocked the world, the family of the man accused of committing it asked me to become his lawyer.  I met with them and they told me that he had in fact pulled the trigger, but that he was legally innocent, because the killing was justified under the Jewish law of “rodef”—a concept akin to preventive or anticipatory self-defense, or defense of others.  This concept, which derives from a Biblical passage, as interpreted by Jewish sages including Maimondes, authorizes the killing of a person who is about to do great harm to an individual or to the community as a whole.  The man who killed Rabin apparently believed that Rabin was about to make a peace with the Palestinians that involved giving back “sacred” land that had been captured by Israel during the Six Day War.  He also believed that such a peace would endanger the lives of Israelis, and so he set out to stop it by killing the “rodef” who had endangered it. 73 

The trial of Rabin’s killer promised to be among the most interesting of my career and among the most important in the history of the Jewish state.  Although the crime did not carry the death penalty (Israel has abolished the death penalty except for the Nazi genocide against the Jewish people, under which Adolph Eichman was hanged), the case fit many of the criteria I generally consider in taking a case.  But I decided not to take it.  

The reason was that it involved the kind of political defense that I abhorred.  If every citizen had the right to decide who was a “rodef” deserving of death, there would be anarchy.  The “rule of personal politics” would replace the rule of law.  The defense of “rodef” was not, in my view, a legitimate legal defense, and I, as a lawyer, was not obligated to present it.

I had a more personal reason as well.  I deeply admired Rabin and I supported his efforts to make peace.  We knew each other, though not well, and he had consulted with me regarding several issues, including the one that may have led to his death.  

Eight days before Rabin was killed, Israel’s Ambassador to the United States had asked me to meet with Prime Minister Rabin, when he was scheduled to speak in Boston later that month.  I asked the Ambassador what the subject of the meeting would be, and he told me that the Prime Minister was deeply concerned about the increasingly virulent level of rhetoric in Israel and the fact that certain fringe religious and political figures were advocating violence against government officials.  He wanted to discuss whether there were ways of constraining the level of vitriol without infringing on the right of free speech.

I agreed to meet with Rabin and wrote the appointment in my calendar.  The meeting was not to be.  Rabin was murdered a week before his scheduled trip to Boston.  I could never erase the scheduled meeting from my appointment book.

I declined the offer to represent Amir, and watched with interest as his lawyers tried to present the “rodef” defense to an appropriately unsympathetic judge.  Amir was convicted and sentenced to life in prison.  He was married while in prison and allowed conjugal visits, during which he fathered a child.  

Other murder clients I rejected included Radovin Karadic, the head of Bosnian Serbs during the terrible ethnic wars in the former Yugoslavia.  Karadic first called me while he was still a fugitive and while the killings were still ongoing and asked me to represent him.  I told him of my policy of not representing fugitives or people involved in ongoing crimes.  He asked if he could call me again if the circumstances changed.  I did not say no.

Shortly after receiving this call, I had occasion to be at a dinner with then President Clinton and First Lady Hillary Clinton.  My decision to turn down Karadic had been reported in the press (he or someone close to him disclosed it) and it became the subject of discussion.  Mrs. Clinton was adamantly against my representation of this “butcher,” but President Clinton said that if I could persuade him to turn himself into the international tribunal in the Hague as a condition of my representing him, it would be a worthwhile tradeoff.  Karadic did not turn himself in, and when he was finally caught many years later, he asked me to meet with him in his prison cell in the Hague.  I met with him just days after his capture and we discussed his case, as well as the cases of several of his former colleagues (one of which I was involved in).  In the end, I did not represent him.  He is still on trial in the Hague.

During the “Arab Spring” of 2011, I received calls from individuals representing both deposed President Hosni Mubarak of Egypt and then fugitive leader of Lybia, Muammar Gaddafi, both of whom were being accused of killing innocent civilians.

A Norweigan human rights activist who was close to Mubarak asked me if I would be willing to go to Cairo as part of the Mubarak legal team.  I raised the question of whether it would be wise for Mubarek to be represented by a Zionist Jew.  He said that I would be part of a team of three lawyers, the other two to be selected by the Arab League.  I doubted that the Arab League would agree to have me participate in such a team, but he assured me that he would try to obtain their consent.  That was the last I heard.  I don’t know whether, in the end, I would have been willing to go to Cairo as part of such a defense team, but I certainly was tempted.

I was less tempted by the offer made by Gaddafi’s Lybian lawyer.  The Gaddafi offer was firm, accompanied by a signed formal retainer letter and contract.  I have the contract in front of me as I write these words.  It begins “In the Name of G-d, the most gracious, the most merciful.  In G-d we trust.”  In the end, I couldn’t agree to what they wanted me to do, and the issue became moot with the fall of the Gaddafi government and the assassination of Gaddafi.  I was later asked whether I would consider representing his son in the International Criminal Court, but that issue too became moot when the rebels decided to try him in Libya.  

My final offer came from a deposed African head of state, accused of mass murder, who offered to pay me with gold bricks he had stolen from his country.  Needless to say, I declined his offer, since the gold was not his to give.    

One American case I turned down grew out of a request from the author Norman Mailer that I represent Jack Henry Abbot.  Mailer told me that he had urged the authorities to release Abbot, who was serving time for murder, because he had become a great writer while in prison.  Abbot had written a memoir called “In The Belly of the Beast” that had become a best seller and had elicited excellent reviews.  Mailer told me that he had succeeded in his efforts to have Abbot released, but that shortly after being set free, Abbot stabbed a waiter to death.  Now he was facing a murder charge, and if convicted he would never again experience freedom, regardless of his writing skills.

I agreed to visit Abbot on Rikers Island, where he was being held pending trial.  I was allowed to meet with him in a private lawyer’s conference room, with guards standing outside.  We began to talk and I became increasingly skeptical of the media story that Mailer had secured his release.  I had his prison record in front of me and as I perused it, the thought occurred to me that perhaps Abbot had earned his freedom by informing on other prisoners.  I made the mistake of asking Abbot whether he was a “snitch.”  Upon hearing that word, he leaped over the table and grabbed me around the neck.  The guards quickly rescued me from his clutches.  The last words he heard me say as I left the room were “No way I’m becoming your lawyer.”  






                    Conclusion:  How homicide cases have changed over the past half century

There are two clearly discernable trends in regard to homicide cases—and they point in totally opposite directions.  Science is helping to solve homicide cases that previously remained unsolved (cold cases) or that produced erroneous results.  Many innocent people who were wrongly convicted of murder have been exonerated by the new science, and some guilty murderers who had never even been suspected have been successfully prosecuted.  There have even been some cases in which the DNA of the killer has been found and analyzed but could not be matched—at least not yet—with a specific person.  In at least one case, an indictment has been issued against the unnamed person who may someday be matched with the “guilty” DNA.  Such is the progress of science, and it will get even better (and scarier!) in the future.  

At the same time that science is progressing, the law is regressing.  It is becoming increasingly difficult to reopen “closed cases,” even homicide cases that carry long prison sentences or the possibility of execution.

Over the past several decades, an increasingly conservative Supreme Court, and a Congress that couldn’t care less about wrongly accused defendants, have shut the courtroom door to new evidence, including new scientific evidence.  It may seem hard to believe but many judges and justices believe that it is not unconstitutional for an innocent person to be executed or to remain in prison if his conviction was “otherwise” constitutional.  The idea that a process resulting in the conviction of an innocent defendant could be “otherwise” constitutional reminds me of the apocryphal question put to Abraham Lincoln’s widow after the assassination in Ford Theater:  “Other than that, Mrs. Lincoln, did you enjoy the play?”  If a defendant is factually innocent, there is no “other than that.”

Listen to Justice Scalia on this subject:

     “This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.”

Let us be clear precisely what this means. If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife whose body was never found, and then came to the Supreme Court with his very much alive wife at his side, and sought a new trial based on newly discovered evidence (namely that his wife was alive), Justice Scalia along with several other justices, would tell him, in effect: “Look, your wife may be alive as a matter of science, but as a matter of constitutional law, she’s dead, and as for you, Mr. Innocent Defendant, you’re dead, too, since there is no constitutional right not to be executed merely because you’re innocent.”  The same would be true if DNA evidence proved another person guilty of a murder for which an innocent person was about to be executed.  According to the Scalia view of the Constitution, there would be nothing unconstitutional about executing the innocent man—and then trying, convicting and executing the guilty man.  Such is the regress of law, and it may get worse if more justices with Scalia’s anachronistic views are appointed to the court. 74   


This is not to suggest that plainly innocent people are being routinely executed in the United States.  There are other checks and balances, such as gubernatorial commutation.  (Though in some states they are rarely, if ever, granted.)  Moreover, the courts, even the Supreme Court, sometimes find other ways to free the obviously innocent in most cases.  


The real problem is how to prove one’s innocence when the courts deny possibly innocent defendants the tools necessary to prove the certainty of their innocence.  The Jeffrey MacDonald case discussed previously, is a prime example of this problem. 75   The courts have repeatedly shut the door on his serious claims that he can establish his innocence if he were to be given an opportunity to subpoena evidence and witnesses.  In his case several crucial witnesses have died.  These include Helena Stoeckley and her boyfriend, who may have been the actual killers, and Jim Britt, the Deputy Marshall who would have testified that the prosecutor improperly pressured Stoeckley to “forget” what she had seen—that is, to lie about her memory.  


In the MacDonald case, justice delayed by the courts may actually result in justice being denied to an innocent man.  


Nor is MacDonald alone in having the courthouse door shut on new scientific evidence that could acquit the innocent and convict the guilty.  It is even possible that several innocent people may have been executed because the courts have refused to consider the scientific evidence that could have proved that others committed the murders.  


One such case came to my attention too late for me to try to do anything to prevent a possible miscarriage of justice.  A letter arrived at my office on a Monday.  I opened it and read a poignant request from a condemned man to review his case.  I receive many such requests but this one was different.  It began by informing me that by the time I read this letter, the writer may already have been executed.  I checked and sure enough, he had been executed a few days earlier.  Nevertheless, he asked me to help clear his name posthumously, so that his family would know he was innocent.  He had asked to have the blood on a towel tested for DNA, but his request had been denied.  He believed that the DNA test would show that the killer was someone else.  I immediately sought to have the blood tested at my own expense, but the authorities told me that the evidence has been destroyed when the defendant was executed.   


It is entirely possible therefore that an innocent man was executed while the guilty man remains at liberty, because the courtroom doors were shut to new scientific evidence that could prove both innocence and guilt.


The prime lesson of the important scientific developments over the past half century is that the courthouse must always remain open to new evidence, even if such openness denies legal finality in criminal cases in which there is no scientific finality. 




Chapter 14:  The changing politics of rape:  From “no” means “maybe,” to “maybe” means “no.”

No legal concept has undergone a more dramatic change over the course of my legal career than the crime of rape. When I started to practice, there were enormous barriers to the successful prosecution of rapists. The testimony of the alleged victim had to be corroborated by external evidence, unlike other crimes where the testimony of the victim is sufficient. The alleged victim could be cross-examined about her entire sexual history, thus discouraging rape victims from coming forward.  A husband could not be convicted of raping his wife, no matter how much force he used, because by law, “the husband and wife are one,” and “he is the one.”  Under this bizarre sexist metaphysic, a husband was deemed “incapable of raping himself.”  Juries were reluctant to convict “upstanding” young men who were accused of raping "loose" women (often defined as unmarried non virgins).  Moreover, being “dressed for sex” was considered a form of consent by some courts, and prostitutes could not be raped since they were in the “business” of consenting.  In some states, lack of consent alone wasn’t enough to establish rape; the victim had to "resist" to the “utmost” even in the face of deadly threats. 76   Some commentators even suggested that it was physically impossible for a non-consenting woman to be raped.  Most importantly, date rape wasn't even considered a crime. Instead it was deemed a manifestation of macho entitlement among certain groups, such as some college fraternities, soldiers, gangs and athletic teams.  Within some such groups if one “brother” was accused of raping a woman, all the other brothers would say that they too had sex with the complainant.  

The upshot was that many predatory males got away with rape either because victims were unlikely to complain, prosecutors were reluctant to bring charges, jurors were eager to acquit or appellate courts were quick to throw out convictions. 

This male-centered attitude toward rape, and the special rules reflected by that attitude, go back millennia in time.  The Bible, which includes a prohibition against coveting one’s neighbor’s wife in the Ten Commandments, does not explicitly prohibit rape.  In the Bible, there are permissible and impermissible sexual encounters, depending on the status of the man and woman.  A married woman is prohibited from having sex with anyone but her husband, while a married man is permitted to have sex with any unmarried or unspoken for woman.  If sex is permitted, it may be accomplished by force. If it is prohibited, it may not be engaged in even if both parties consent.  If a man rapes an unmarried girl who is still in her father’s care, his “punishment” is to pay the father a specified amount for damaging his “property,” and he must marry her and may not ever divorce her.  Who is punished more under this regime, the perpetrator or the victim?  And who is the “victim,” the girl or her father?  Similar rules prevailed in other religions and other cultures during Biblical times and for centuries thereafter.  

The common law attitude, which governed American courts from the beginning of our history, was summarized by British Lord Chief Justice Matthew Hale, who cautioned that rape was a charge “easily to be made and hard to be proved, and harder to be defended by the party accused, tho’ never so innocent.”

Even as recently as the early 20th Century, the influential legal commentator, John Wigmore, proposed that women who accuse men of rape should be subjected to a psychiatric examination because:    

     “Modern psychiatrists have amply studied the behavior of errant young girls and women coming before the court in all sorts of cases.  Their psychic complexes are multifarious, distorted partly by inherent defects, partly by diseased derangements, partly by bad social environment, partly by temporary psychological or emotional conditions.  One form taken by these complexes is that of contriving false charges of sexual offenses by men.  The unchaste (let us call it) mentality finds incidental but direct expression in the narration of imaginary sex incidents of which the narrator is the heroine or the victim.  On the surface the narration is straightforward and convincing.  The real victims, however, too often in such cases is the innocent man…”


Even as late as the 1960s, the Supreme Court of Georgia, in rejecting Justice Goldberg’s view that the death penalty might be unconstitutional for rape, provided the following male-centered justification for why rapists must be executed: 

     “We reject this [attempt to reduce the protection of] mothers of mankind, the cornerstone of civilized society, and the zenith of God’s creation, against a crime more horrible than death, which is the forcible sexual invasion of her body, the temple of her soul, thereby soiling for life her purity, the most precious attribute of all mankind [sic!].”

During the last quarter of the 20th Century, political and academic feminism began to focus attention on the gender inequalities implicit, and often explicit, in rape laws.  Within a short period of time, thousands of years of anachronistic rules governing the prosecution of rape cases were changed.  The testimony of rape victims no longer had to be corroborated.  Rape shield laws prohibited defense attorneys from questioning alleged rape victims about their prior sexual history.  Husbands could be prosecuted for forcing their wives to have sex.  The force and resistance elements of rape were amended in most jurisdictions to require only a lack of consent.  Date rape was punished as seriously as stranger rape.  Most importantly, attitudes changed, at least among some groups which no longer treated predatory males as macho heroes and women who dressed provocatively as automatically consenting sex partners.  


Nearly all of the rules that had made it difficult to prosecute rapists were amended within the course of little more than a decade, as the pendulum swung quite dramatically from a male-centered view of rape to a female-centered view.  As with many wide swings of a pendulum, there was little effort to strike a carefully calibrated balance that represented our general approach to all crimes:  namely that there must be a heavy burden of proof on the prosecution and that it is better for 10 guilty rapists to go free than for even one innocent accused rapist to be wrongly convicted.  Indeed even that salutary rule was challenged by some feminists in the context of rape. 77   One influential scholar went so far as to suggest that all sexual intercourse is essentially rape 78  and that all men should be presumed of being guilty of this crime.  This led one of my colleagues to quip that “some feminists regard rape as so heinous a crime that even innocence should not be recognized as a defense.”  


Mostly the changes in the laws governing rape prosecutions were for the better:  Many more guilty rapists were successfully prosecuted and the number of rapes went down perceptibly. 79   But these radical changes were not cost free:  more innocent defendants, or those against whom the evidence was doubtful, were also convicted.  When it comes to changing the rules of governing prosecution of serious crimes, there is no free lunch.  Virtually every change that makes it easier to convict the guilty also makes it somewhat more likely that some innocents will be convicted as well.  The difficult question is whether, as to any particular crime or rule, the trade off is worth it.  

I have experienced and participated in the changing approaches to the prosecution and defense of rape cases.  At the beginning of my career, when the rules were heavily skewed against women, I was reluctant to defend accused rapists because I didn’t want to cross examine alleged victims about their sexual history.  I regarded it as an unfair tactic designed not to probe their credibility as witnesses, but rather to discourage rape victims from bringing charges.  Were I to have defended an accused rapist in those days, I would have no choice other than to use every legally permissible tactic.  As the rules changed, I began to defend accused rapists—and to teach and write about rape—in order to help assure that an appropriate balance was maintained in the inevitable trade-off between the rights of the alleged victim and those of the accused defendant.

A revealing example of how this trade off works in practice is provided by the controversial rape prosecution of Mike Tyson, in which I served as his appellate lawyer.  Tyson was convicted of raping Desiree Washington, a young woman who he met when she was a contestant in the Miss Black America pageant in Indianapolis, and he was an invited celebrity.  He called her at 1:45 in the morning and invited her to his hotel room, where they engaged in sexual intercourse.  She subsequently claimed that he had forced her.  He said it was entirely consensual.  The jury believed her and convicted him.  Following his conviction, Don King asked if I would represent the former heavyweight champ on his appeal.  





Was Mike Tyson the victim of the changing politics of rape?

The first time I met Mike Tyson was the night before he was to be sentenced and sent to prison.  Mike was deciding whether to accept Don King’s recommendation that he hire me as his appellate lawyer.  He was in a hotel room in Indianapolis, Indiana, with his large entourage.  After briefly discussing the case and the appeal, he turned to me and asked point blank, “So professor, I have two questions.  Do you believe I’m innocent and what do you think of me as a person?”  I replied to the first question that I had no basis at that time to form a judgment about his guilt or innocence since I had not yet read the transcripts.  He replied, “ok that’s the lawyers’ talk.  I understand.  Now, man to man, what do you think of me?”  I looked him straight in the eye and said:  “If you’re innocent, you’re a real schmuck.”  He looked back at me and said, “You calling me a schmuck?”  I said, “Yes, if you’re innocent then you’re a schmuck for going up to a hotel room at three o’clock in the morning with a woman who you didn’t know, without any witnesses, thereby putting yourself in a position where she could accuse you of so serious a crime.”  He turned to several members of his entourage and said, “This man’s calling me a schmuck.  He’s right.  I want to know why you guys didn’t call me a schmuck.  He’s hired.  I need somebody who’s willing to call me a schmuck when I am a schmuck.”  

That was Mike Tyson - - direct and to the point.  While preparing his appeal I went to visit him in prison several times.  The prison rules required that we sit side-by-side facing a camera.  Whenever I would say something he agreed with, he would give me a gentle love tap on my arm or on my thigh.  A love tap to him!  When I got back to my hotel I was black and blue.  

One day I saw a guard taunt him mercilessly and watched him strain to control himself.  He did hard time in prison.  I sent him books to read—about subjects that interested him such as ancient Egypt, the “roaring 20s” in the United States, and the history of boxing.  When I would come to visit him, he asked me to test him about what he had read.  He passed with flying colors.  

Mostly we talked by phone about his appeal.  Mike would have to wait in the phone line for hours to call me.  Once, as I picked up the phone, he heard my baby daughter crying in the background.  He told me to “take care of your kid” and he would call back later.  He was always considerate.  

Some people find it hard to believe, but Mike was a wonderful client, always polite, always honest, always honorable, and always thinking of others.  He ran out of money during the appeal and I continued to represent him without pay.  I never thought I would see a penny of what he owed me, but several days after he fought his first fight upon being released, he sent checks to every one of his lawyers for the full amount that he owed.  

Tyson’s trial had been a disaster.  His prominent white collar trial lawyer had little experience in rape cases and didn’t seem to like Tyson.  He made mistake after mistake, both tactical and legal.  The legal expert who reported on the trial for USA Today described the trial as “filled with mistakes, omissions and elementary errors” by Tyson’s trial lawyers.  I had followed the trial in the media, but I didn’t realize what a terrible job his chief trial counsel had done until I reviewed the transcript.  After agreeing to do the appeal, I decided to start from scratch with a new investigation.  My goal was to secure a new trial for the ex heavyweight champ.

I assembled a superb team, which included my brother Nathan, my son Jamin, who had just completed a two year stint with the New York Legal Aid Society following his graduation from Yale Law School and a clerkship with the Chief Judge of the Federal District Court in Massachusetts.  It also included my co-clerk for Justice Goldberg, who was a leading Indiana lawyer.

On the basis of our investigation and the new evidence we uncovered, I was convinced that Mike Tyson did not intend to rape Desiree Washington, and that he got a bum rap.  

Several of the jurors agreed with me after learning of some of the new evidence.  One of them said:  "We [the jurors] felt that a man raped a woman... In hindsight, it [now] looks like a woman raped a man." 

Another juror told the media that Desiree Washington, the pageant contestant who accused Tyson of raping her, "has committed a crime."

In order to understand why these jurors had such dramatic second thoughts about their verdict, we must go back to the trial itself and see how Desiree Washington, the alleged victim, was portrayed to the jury.  During the trial she did not even allow her name or face to be revealed. She was presented as a shy, young, inexperienced, religious schoolgirl, who wanted nothing more than to put this whole unpleasant tragedy behind her.  

Her family said they had hired a lawyer for the express purpose of helping to "ward off the media," because she did not want any publicity. She said she had no plans to sue Tyson and she had certainly not hired a lawyer for that purpose. When she and her family were asked whether they had a "contingency" fee agreement with any lawyer -- the kind of agreement traditionally made with lawyers who are contemplating a money suit for damages -- they all claimed not even to know what that term meant. When Desiree's mother was asked whether there had ever been any "discussions" with lawyers about fees, she said no, and she swore under oath that there were no "written documents relating to the relationship between you and [the lawyer who was supposed to ward off the media]."

Thus, as one of the jurors later put it: "When she [Washington] said she wasn't looking to get any money," I believed her and "thought then that we made the right decision." Another juror agreed, saying that at the trial, "she was very, very credible," because she had no motive to lie, since she was not intending to collect any money, or to benefit in any way from Tyson's conviction.

Desiree Washington also pretended -- with the complicity of the prosecutor -- that she was an inexperienced virgin before she met Tyson. 

She testified that she was "a good Christian girl," and the prosecutor told the jury that she expected to go home after her date with Tyson "the same girl" that she was before her date, namely a virgin. She was an "innocent, almost naive" girl, according to the prosecutor. She knew how to "handle the hometown boys" if they even dared to try to cop a "quick feel," thus suggesting that she did not even neck or pet. As a waitress in Washington's hometown put it: "America thought this girl was a blushing, virginal type."  (Under the rape shield law, Tyson’s lawyer could not counter this portrayal.  The prosecution thus used the rape shield law as a sword to present a one-sidedly false picture of the alleged victim.)

The prosecutor also argued to the jurors a variation on the "dressed-for-sex" theory, telling them that Washington went to meet Tyson wearing "little pink polka dot panties," rather than "Fredericks of Hollywood underwear," thus showing that she did not put on the kind of sexy underwear that women wear when they are out to have sex.  (He neglected to tell the jury that Desiree's sexy underwear was all still wet from having been washed, and that her only dry pair—when she went to meet Tyson at 2 o'clock in the morning—was the one with polka dots.)


Finally, Desiree Washington solidified her image as a totally non-sexual platonic date who only wanted to go sightseeing with Tyson at two o'clock in the morning, by describing to the jury how she responded when Mike tried to kiss her as she entered his limousine for the ride to his hotel: "he went to kiss me and I just kind of jumped back."

Thus, the jurors were presented with the picture of a zealously religious, young, naive "virginal type" girl, who does not kiss, neck or wear sexy underwear, and for whom a lawsuit or media attention were the furthest thing from her mind. 

No wonder the jurors believed her testimony, in what was a classic "she said" -- "he said" credibility contest. 

We discovered during our investigation that virtually everything “she said,” and her family corroborated, was highly questionable if not outright false.  The Washington family did not hire a lawyer to "ward off the media" as they claimed, but rather to do precisely the opposite—namely to sell Desiree's story for huge sums of money.  After the trial, Donald Washington, Desiree's father, publicly acknowledged that he discussed movie rights with the very lawyer whom he falsely told the jury he had hired solely to "ward off the media." In an interview he gave after the trial he admitted that he: "I expected to get money from movie rights, that's where the money is." 

It also now turns out that the trial testimony denying any "contingency" fee agreement and any "written document" between the Washingtons and the lawyer concerning a planned money damage suit against Tyson was categorically false.  Immediately after Desiree Washington's sexual encounter with Mike Tyson, the Washington family went to see a high-powered lawyer in their home state of Rhode Island.  The discussion turned instantly to how the Washington family could parlay Desiree's date with Tyson into big bucks. They talked about movie rights, book deals and multimillion-dollar lawsuits. The lawyer carefully explained what a contingency fee agreement was and the family agreed with this arrangement. Desiree signed a contingency fee agreement, which her father and mother officially witnessed. The family was given a copy of this document.

The prosecutor was fully aware of the contingency fee arrangement.  Indeed, during the prosecutors' "rehearsal" cross examination of Desiree Washington, in preparation for her actual in court cross examination by Tyson's trial lawyer, the issue of the contingency fee agreement was explicitly raised. Yet, the prosecutor did everything in his power to keep the truth from coming out. He arranged for the Washington family to take the courtroom pass away from their lawyer, so that he could not attend the trial and feel ethically compelled to stand up and correct the Washingtons' testimony when they falsely denied any contingency fee or written agreement with him.  (The prosecutor also had an ethical obligation to correct the false testimony given by his witness.  Indeed he had an even greater obligation because he was the one who put on the testimony that he knew was false.)

The ploy worked—at least for a while.  But the Rhode Island lawyer soon learned that his clients were not being straight with the jury.  He began to worry that he might have an ethical obligation to blow the whistle on his clients, as lawyers do when their clients or witnesses are committing perjury.  So the lawyer went to the Rhode Island Disciplinary Counsel—the attorney in charge of enforcing the ethical rules that govern lawyers—to obtain guidance.  She referred the matter to the Rhode Island Supreme Court which issued an unprecedented opinion concluding that “the attorney had an obligation to disclose the existence of his contingent fee agreement to the [Indiana] criminal trial court.”  The state’s highest court found that the agreement’s “existence might well have had a bearing upon the jury’s determination.”  The Rhode Island court then directed the attorney to disclose to the Indiana court the information that the Washingtons had withheld.  He did so but the Indiana courts ignored this new information, despite the conclusion of the Rhode Island Supreme Court that it might well have affected the jury’s verdict.  Indeed, what could be more important than the fact—unbeknownst to the jury—that Desiree Washington had millions of dollars riding on whether Mike Tyson was convicted or acquitted, since without a conviction, it would have been difficult for her to collect monetary damages or sell her story to the media.  The only thing that might have been more important is that she had been untruthful about her financial motive for accusing Tyson of rape.  

It also turns out that Desiree was hardly the naive virgin she pretended to be. Once her name was disclosed following the trial, numerous witnesses confirmed that Desiree Washington was a sexually active young woman who hung out in nightclubs. Indeed, her lawyer implied to the media that Washington had been examined for venereal disease a month before she had sex with Tyson and that she was "not sexually active" during that brief period. 

Not only was the jury misinformed about Desiree Washington's general sexual proclivities, they were also denied the most crucial eyewitness testimony of what she was doing just minutes before she went to Tyson's hotel room. She denied necking with Tyson in the limo on the way to the hotel. Indeed, she testified that she rebuffed his attempt to kiss her and "jumped back." Tyson's testimony was precisely the opposite. He swore that when he kissed her, "she kissed me," and that on the drive to his hotel, he and Washington were "kissing, touching." The jury obviously believed Desiree's testimony because Tyson's was uncorroborated and self-serving.

But it turns out that there were three eyewitnesses -- disinterested outsiders who happened to be in front of the hotel when the limo pulled up -- who saw what was going on inside and outside the limo just before Tyson and Washington left it to go to his hotel room. They saw them necking --"they were all over each other" -- and holding hands on the way to the hotel (Desiree denied both necking and holding hands).

Of course, the fact that they were necking and holding hands doesn't preclude the possibility that Desiree may have said no when it came to intercourse. Nor does it mean that a woman who engages in sexual foreplay may not refuse further sex at any point. Of course she may, and if the man then forces her to have sex without her consent, it is rape. But the testimony of these eyewitnesses shows three important facts: the first is that Washington was lying when she denied necking with Tyson; the second is that Tyson was telling the truth when he testified that they were necking; and third, that just moments before the hotel door closed behind them, Washington was involved in sexual foreplay with Tyson.

Despite the importance of this eyewitness testimony by three disinterested witnesses in an otherwise uncorroborated "she-said, he said" credibility contest, the trial judge adamantly refused to allow the jury to hear the evidence of the three eyewitnesses. She ruled that the prosecution—which admitted that the testimony was "pivotal" --would have been “prejudiced” by its late disclosure.  This was absurd because the three witnesses had come forward before the close of the prosecutor's case—after learning that Desiree Washington had denied necking with Tyson—and well before the defense case even began.  There was plenty of time for the large team of prosecutors to prepare to cross examine them, and if they needed more time, the judge could have briefly recessed the trial.  In any event, surprise defense witnesses are common in criminal trials, and the Bill of Rights explicitly guarantees a criminal defendant the right to call “witnesses in his favor.”  Despite this the judge denied Tyson the right to call these three pivotal witnesses.  So much for the “search for truth.”

In all my years of practice and teaching criminal law, I had never heard of a case in which a judge had refused to allow a criminal defendant the right to call eye witnesses who could help establish his innocence.   The law, including the law of Indiana, clearly supported Tyson’s right to do so.

It should come as no surprise, however, that this particular trial judge made such a bizarre and unprecedented ruling to exclude such relevant and exculpatory evidence.  The trial judge, Patricia Gifford, who used to be a full time professional rape prosecutor, had prosecuted more than 50 rape cases.  She expressed extremely strong feeling about rape, especially what has come to be called “date rape.”  Indeed, she lectured the lawyers against even using the term date rape in her courtroom and refused to give the traditional date rape instruction, which requires acquittal if the jury concludes that the defendant reasonably believed the woman consented, even if she did not intend to consent.

After reading the transcript, it became clear to me that Patricia Gifford did not see her role in rape cases as being a neutral judge, but rather as another prosecutor, with a stake in the outcome.  She wanted to see the most famous “rapist” in Indiana history convicted and put away.  Judge Gifford made virtually every important ruling in the prosecutor’s favor, including the exclusion of those three “pivotal” witnesses who would have won the case for Tyson.  She also excluded evidence—under the rape shield law—that, would have proved that Desiree Washington had a strong motive to frame Mike Tyson for rape.  (More on this soon.)


In light of Judge Gifford’s attitudes and professional background in regard to rape, it might be wondered how the prosecution got so lucky as to have her as the judge in the Tyson case.  Luck, however, played no part in the selection.  Using Indianapolis law and practice, the prosecutor was able to pick the judge who will try a criminal case.  I am aware of no other place in the free world where a prosecutor has this ability, other than in Indiana.  And the prosecutor picked wisely, if not fairly.  

Several distinguished commentators—including Indiana’s leading authority on criminal procedure—concluded that the trial judge committed a serious legal error by excluding the three crucial witnesses.  Articles in The American Lawyer and the New York Law Journal—reached the same conclusion, as did most of the lawyers and law professors with whom I conferred.  

Despite the strong issues that she knew could be presented on appeal, Judge Gifford denied Tyson bail pending appeal, apparently accepting the prosecutor’s silly argument that this celebrity defendant would somehow sneak away and flee to a country with no extradition treaty with the United States.  She also ruled that all the appellate issues would be “frivolous.”  Finally, as if to prove she was an advocate rather than a judge, she actively lobbied in the media against any reversal of the conviction, convening a press conference and, according to news accounts, “express[ing] some worries about having her ruling overturned, especially in an internationally publicized case in which prosecution costs alone reached $150,000.”  She commented on “the enormousness of the reversal of the a case that would have to be tried again like this.”  We were advised by several local lawyers that she also personally lobbied the appellate judges against reversing the conviction.  These actions were completely unethical, and in direct violation of the Code of Judicial Conduct, but apparently acceptable in Indiana.