Some years ago I represented several New York nursing home operators who were uneasy about being investigated by the special prosecutor. Bernard Bergman was notorious at the time, relentlessly depicted in the press as having coldly tortured helpless old people for money. I remember that one of my clients (a smart, tough veteran of business wars) told me that he had had dealings with Bergman and that no one had ever frightened him so much.
In his exuberant, entertaining, and enormously instructive book, The Best Defense, Alan Dershowitz, a Harvard law professor and well-known civil liberties and criminal lawyer, tells how he became Bergman’s lawyer in the appeal against his sentence. After meeting Bergman and finding “a twinkle in his eyes and enthusiasm in his voice,” Dershowitz became convinced that Bergman was “being made a scapegoat for an entire industry.” “I did not believe [his] glowing accounts of the nursing homes,” Dershowitz writes, “since I knew some people whose relatives had been patients in them.” But it seemed clear to him that “the legal system had been distorted, perverted, and abused in order to get Bergman” and that some of the prosecutors and judges were “caught up in a vigilante atmosphere.”
This may all be true, though it wouldn’t have to be to justify Dershowitz’s entry into the case. Bergman’s sentence raised a constitutional question—whether the prosecutor was reneging on the terms of a plea bargain—and that issue merited strenuous argument, whichever Bergman was, a maligned, philanthropic rabbi or a diabolical villain.
The hardest cases in which to apply the Bill of Rights are those where the defendant has done some abominable thing. Understandable zeal to catch a criminal, to allay some public anxiety, and perhaps to prevent harm to others may lead officials to unconstitutional action. We may often have some sympathy for such acts. Perhaps a warrantless search produced evidence that led the police to the murderer of a child. But if the case against the defendant is substantially affected by official misconduct, we cannot uphold a conviction without renouncing our understanding of the Constitution. This is a toll we must pay for having a Bill of Rights and blaming a defense lawyer for exacting it is like beheading a messenger. In our adversarial system, where judges will generally not intervene in a pastoral way to protect the rights of the accused, defense lawyers are charged with the duty to be the obnoxious conscience of the courts and to force officials into a confrontation with the Constitution. Fidelity to law does mean that a few dangerous people will go free; but this cost was assumed in the compact of the Constitution and was not imposed by attorneys for the defense.
Such a case led to one of Dershowitz’s most spectacular courtoom successes. Three members of the Jewish Defense League were charged with causing the death of a young woman by setting off a bomb in the New York office of the …
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