What do porn star Harry (Deep Throat) Reems, socialite felon Claus von Bülow and Soviet dissident Anatoly Shcharansky have in common? Representation by the same man: Harvard Law School professor and defense attorney extraordinaire Alan Dershowitz. A Talmudic school “troublemaker” in his native Brooklyn, he went on to graduate at the top of his Yale Law class. He clerked for Supreme Court Justice Arthur Goldberg, joined the Harvard Law faculty at 25, and three years later became its youngest full professor. Today Dershowitz, 43, mixes academic life (at $60,000 plus per year) with both a private practice and pro bono legal work that tilts toward cases involving constitutional law: the Jewish Defense League bomb throwers, censored CIA whistle-blower Frank (Decent Interval) Snepp, Cape Cod skinny-dippers. His courtroom travails have provoked in Dershowitz an anger with the system that he spells out in his current best-selling polemic, The Best Defense (Random House, $16.95). The book has been castigated by critics as not convincingly documented, and at various times its author has been pilloried as a colossal egotist with a reckless habit of overstating his case. To explore his indictment of American justice, PEOPLE’S Gail Jennes visited the outspoken Dershowitz in Cambridge, where he has lived with his two sons, both now in college, since his 1975 divorce.
What is wrong with the criminal justice system in the U.S.?
I don’t complain about the results; there aren’t large numbers of innocent people in prison. But the paradox is that while almost all criminal defendants are guilty, they are often convicted on the basis of illegal evidence. It’s not enough that the system produces accurate results—it must do so honestly. We stretch facts and the law, circumvent constitutional and exclusionary rules, to convict the guilty. This creates corruption and disrespect for the law.
Who’s to blame?
Judges too interested in “results,” who see themselves as part of the prosecutorial team. Prosecutors who forget that their role is to make sure the truth comes out, not just secure convictions. They allow cops to lie about how they got evidence, and permit witnesses to conceal deals for immunity. Another problem is attorneys who plea-bargain because it helps their won-lost records. Then there are cops—very few of whom lie about the basic facts of a case—who may stretch an incident to fit into the framework of what they consider a silly ruling by the Supreme Court. If a cop suspects a guy of selling drugs to kids, for example, he may search him illegally, then say in court that the guy dropped the evidence.
Where does your indictment start?
Chief Justice Warren Burger has been a disgrace to the American judiciary. He is a hypocrite. When he talks about the inadequacies of practicing lawyers, he is talking through his robes. He looks like the embodiment of law and fairness—right out of central casting—but beneath that veneer is a narrow, not-very-intelligent mind with no discernible compassion or sense of judgment.
Have you argued before Burger?
Yes, once. The case involved I Am Curious—Yellow, a movie made in Europe by consenting adults engaged in acts that were legal where they were performed; I argued that a theater owner should not go to jail for showing the film. Burger kept questioning me about the constitutional rights of bears and of people who bait them. It was totally beside the point—I wasn’t defending the right of people to be cruel to animals. You could see the impatience on the faces of the other Justices.
Rate the other Justices.
Some are bright but have no soul. Some have more soul but are less well educated legally. Some have a lot of common sense. A good but not great Supreme Court. Sandra Day O’Connor is a real disappointment. I pushed very hard for a woman on the Court, but some of her opinions, including her dissent from the ruling that states must pay to educate the children of illegal aliens, showed a disturbingly narrow perspective.
How about judges in general?
Some are very good, a lot are very bad. Many are party hacks who have run for office and been beaten. In my opinion, more than half the judges on the federal and state levels are unqualified and incompetent.
What about prosecutors?
A lot of cases are lost because of incompetent prosecutors. In Boston not long ago two men were charged with murder. At the trial of the first, an alibi witness testified that the defendant was somewhere else at the time of the murder. He was acquitted. The second defendant, at his trial, introduced as his major witness the first man, who said he’d done the killing and done it alone. The jury acquitted the second defendant. The DA tried to blame the acquittal on the Constitution, but the case was not well prepared. Whoever did the killing got off—a terrible miscarriage of justice.
What about prosecutorial misconduct?
A striking example involved Robert Leuci [the whistle-blowing New York cop whose adventures were the basis for the book and film Prince of the City]. Before his undercover work in 1971 against fellow policemen, Leuci clearly committed many more crimes than he admitted to. But the most prestigious prosecutor’s office in America engaged in cover-ups, distortions and serious misconduct in its eagerness to use Leuci’s testimony to obtain convictions. In a case I handled on appeal for a New York criminal lawyer, the U.S. Attorney’s Office for the Southern District of New York never told the defense what it knew about Leuci’s other crimes. It allowed Leuci to lie on the stand about a serious crime relevant to the case against my client.
Are defense attorneys above reproach?
Too many lawyers fail to draw sharp lines between representing clients and becoming friends or associates. Even F. Lee Bailey, a first-rate criminal defense lawyer, became too deeply involved with his client Glen Turner, who was under investigation for pyramiding schemes. Lee ended up being indicted with Turner. [Dershowitz helped represent Bailey, and Bailey won.]
Also, most defense attorneys get paid a flat fee up front. Say it’s $2,500. A trial might take 25 hours. But plea bargaining might let a lawyer wrap it up in five hours—and then he would make $500 an hour.
You don’t approve of plea bargaining?
Its implicit message is that it costs you to exercise your constitutional rights. Judges like efficiency—one Chicago judge used to say he’d sentence one extra year for every day of court time a defendant took up. And from the viewpoint of many criminal lawyers, being on the blacklist of judges is bankruptcy. Most important, the public is often not served.
Is trial by jury fair?
Jurors are wonderfully typical Americans who watch TV and movies, where there are no such things as irrelevancies. In the courtroom, the jurors are at the center of a drama—and they start thinking TV. On the tube circumstantial evidence points inexorably to the killer’s identity. The judge should help the jurors remember that this is real life, where most circumstantial evidence doesn’t lead to clear conclusions.
How do you feel about the verdict in the Hinckley case?
The verdict shows the American jury is alive and well. No judge would have had the guts to render that verdict in the face of such public pressures. I’m not saying that I agree with the jury’s verdict, but I’m praising their independence. That independence, however, has been jeopardized by the decision of a Senate committee to question some of the jurors.
Are many people wrongfully convicted?
It’s rare. There are some innocent blacks in prison because to the white jury they looked like criminals. Unfortunately, the innocent person who’s convicted may get a worse sentence than the guilty person, since he’s not remorseful.
Does money buy freedom?
No. But other things being equal, having a lot of money buys you more freedom than having little money. Some argue that the worst justice available is to middle-class people who can’t afford the big law firms, can’t qualify for legal aid or public defenders, and get stuck with mediocre lawyers who can’t defend them properly.
What if an accused murderer you helped free later killed somebody?
It’s never happened to me, but I’d feel awful. I’d also feel awful if I were a surgeon and cured someone who went out and killed.