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 impresario Sol Hurok where she worked. One of the defendants, Dershowitz’s client, had become an informer for the government and was expected by the prosecution to be their star witness. But Dershowitz was able to convince the court of appeals that the authorities had engaged in illegal wiretapping and other acts that deprived the prosecution of the power to compel his client to testify. The prosecution was left with no admissible evidence and three possible murderers who were members of a violent organization walked away.
Dershowitz’s book is an anthology of his choicest cases—he tells us about representing Soviet Jews in Russia, challenging the application of a capital punishment statute, fighting for the rights of nude bathers on Cape Cod beaches, and the right of the revolutionary Bruce Franklin to speak at Stanford. Dershowitz possesses in abundance the qualities needed in a great litigator: legal acuteness, tenacity, imagination, and strong nerves. But no matter how able the lawyer, once there has been a conviction at trial, the defense rarely wins a criminal case on appeal. (A careful count of the cases in Dershowitz’s book shows that even he has won reversals of criminal convictions on appeal only infrequently.) This makes criminal appellate practice a bleak business in which the attorney is sometimes driven to the conclusion that judges have predetermined the matter and closed their minds even to the best of arguments. Dershowitz pursues this theme with a rare frankness that will endear him to all defense lawyers.
There are classes of defendants whose convictions appellate courts are strongly disinclined to reverse unless the prosecutor or the trial court has been guilty of a conspicuous outrage. These defendants include those convicted of dealing in large quantities of hard drugs or of offenses connected in some way with drug dealing or organized crime. A lawyer’s most diligent uncovering and persuasive presentation of mistakes at the trial, even when they were errors of constitutional dimension, will rarely save these offenders, for they have the misfortune to fall under an uncanonical but universally recognized exception to the Bill of Rights—the one for the obvious “bad guy.” Courts use several techniques to uphold convictions in these cases.
If, during a trial, the court holds a hearing on questions of fact to investigate a claim of constitutional violation—an unlawful search, for instance—the judge may simply make strained and implausible findings of fact that deny any error or minimize its significance. The appellate court will then be very respectful of this exercise of discretion by the trial judge. In the Jewish Defense League case the judge, after Dershowitz had presented a mass of tape-recorded evidence of police misconduct, still managed to hold that there was no substantial impropriety. Fortunately for the defendant the evidence was so plainly at odds with the judge’s finding that the court of appeals reversed. Such reversals are rare. Sometimes the appellate court itself, while conceding that there was a violation of the defendant’s rights, may call it “harmless error.” “Harmless error” is in principle a proper and necessary doctrine which declares that even a constitutional violation will not entitle a defendant to a reversal of his conviction if it can be shown that it did not cause prejudice to his defense. But with encouragement from the US Supreme Court, lower courts now routinely hold substantial error to be harmless—even an improperly extracted confession may be called harmless as long as there was no coercion.
Appellate courts have other tricks too. Perhaps a defendant’s lawyer did not raise the matter complained of in exactly the right form or at exactly the right time during the trial proceedings. Then, with crocodile expressions of regret, the superior courts will say that they cannot entertain the claim since the defendant (although in no way responsible for his lawyer’s neglect) is in “procedural default.” Even constitutional claims must be preserved in this procedural formaldehyde before they will be reviewed. And if none of these devices is appropriate the appellate court may simply take refuge in a blank denial of the defendant’s claims without giving any reasons at all.
Some years ago I worked with a distinguished group of lawyers on the appeal of a defendant convicted in a federal court in New York of importing large amounts of heroin. We knew how reluctant the Second Circuit Court of Appeals would be to reverse a conviction in such a case. At the same time we believed that there had been serious errors of a constitutional nature at the trial which had substantially deprived the defendant of an opportunity to present his defense. We wondered how the Second Circuit would handle this and were sure the opinion would be at least six months in coming down and would run to twenty pages or more. The one thing that we had not anticipated was that the court would do what it did, which was to “affirm from the bench”—decide the appeal against the defendant without retiring to consider the case and without writing any opinion.
This is a procedure supposedly appropriate only to “frivolous” appeals. But courts sometimes turn to it in desperate cases, where they dare not write because even tortured doctrine could not plausibly yield the desired result. It is a practice that is destructive of the best principles of a legal system. Not only is the defendant deprived of any explanation of why his arguments are rejected but he is seriously obstructed in pursuing a further appeal to the Supreme Court since there is no opinion from the court of appeals on which a petition for certiorari can be intelligibly based.
Dershowitz’s book is full of such rebuffs. It also reveals much about the hatred and rage of criminal litigation. There is the raw fear of a defendant facing a long term in prison or even, again today, capital punishment. Judge, prosecutor, and defense lawyers are caught up together in the elaborate network of interminable adversary procedures for presenting evidence. Everyone is horribly afraid of making a blunder. Contentiousness and deviousness are heavy in the air, and malice and rancor flash out from time to time. Engaging in this kind of combat day after day (and losing nine times out of ten) calls for great stamina. The Psalmist who sang “A day in thy courts is better than a thousand” wasn’t doing criminal defense work.
Judges who will accept a decorous defense become surly when the defense lawyer is vigorous and infuriated if the defense attacks the conduct of the prosecutors. This threatening rage that some judges exhibit toward defense lawyers perhaps springs from guilt induced by ambivalence toward the Bill of Rights. Just as it is difficult for a religious person to lead a sin-free life, so our criminal justice system, headed by the Supreme Court, has found fidelity to the rights of a defendant to be an intolerable strain. The Constitution is rhetorically overvalued by the courts and then systematically devalued in legal practice. Defense lawyers are the natural recipients of consequent anger since they stand as nagging reminders of constitutionalism. In this way the sullen art of legal practice imposes a double servitude, for one must submit not only to the textual authority of statutes and precedents but also to the human authority of judges who may be ignorant or biased or deaf to the voice of principle. Most lawyers must simply bow to this sovereignty, but Dershowitz has written a book to strike back in his litigation star wars.
Dershowitz devotes one long chapter to a case that involved the corrupt police officer Robert Leuci, who was the central character in the book and movie Prince of the City. The defendant Edmund Rosner, a successful New York City criminal defense lawyer, was charged with attempted bribery. According to the defense Leuci had entrapped Rosner into offering him money to procure official information. He accomplished this, the defense claimed, by frightening Rosner with the wholly untrue story that Rosner was about to be indicted for murder. The case turned in the end on different versions given by Rosner and Leuci of what had passed between them at a meeting. The jury must have believed Leuci for they convicted Rosner.
Dershowitz entered the case at the appeal stage.* Hearings he conducted for the defense established that as a police officer Leuci had a long and serious history of corruption and crime though he had admitted to very few wrongdoings when cross-examined by the defense at Rosner’s trial. The jury’s assessment of Leuci’s credibility might well have changed had they known the truth about his career of crime. Indeed two jurors swore in affidavits that they would not have voted to convict Rosner had they known the truth. On the basis of the testimony given at the hearings, Dershowitz charges that several members of the investigative team and of the office of the United States Attorney for the Southern District of New York knew of Leuci’s lies at the trial and thus were guilty of “complicity in perjury.”
In addition Dershowitz claims that the record reveals that the prosecutor had secret and improper communications with the judge. The prosecutor was the head of the criminal division in the United States Attorney’s office and the judge had formerly held that position. When Dershowitz proposed to argue that the prosecutor had behaved improperly, the judge threatened to punish Dershowitz for contempt. The judge and prosecutors in this case are now for the most part engaged in the private practice of law. They now have the chance to respond to Dershowitz’s allegations.
Rosner’s conviction was left undisturbed and he was disbarred and imprisoned. Leuci was appointed to an “integrity unit” in the New York City police department and later retired with a pension.
The office that Dershowitz so vehemently attacks in his discussion of the Rosner case is the most prestigious prosecutor’s office in the nation—that of the United States Attorney for the Southern District of New York. It is staffed by many very bright young men and women a few years out of leading law schools. In Dershowitz’s perception of them they too often see themselves as a kind of Opus Dei elite. Polishing themselves for high places in the legal establishment, they sometimes give the impression that the Constitution was meant for people such as themselves but not for those whom they prosecute. For those who make a living defending drug dealers, or members of organized crime, they feel the natural contempt of those who intend to make a living as the acolytes of respectable wealth. They appear before judges some of whom themselves previously held positions in the US Attorney’s office, judges with whom they work in daily proximity and to whom they naturally look for aid and comfort. Defense lawyers often feel that against this apparent alliance of judge and prosecutor, against this tacit understanding of how things must come out, they may hurl the Constitution until it shatters.
It is healthy that someone should write frankly about this, but from a Harvard law professor we may rightly expect more than a set of exciting tales from the war zone. After being stirred by Dershowitz’s exploits and shocked at the villainy of prosecutors and judges we ought to be offered a larger analysis of legal institutions and perhaps proposals for reform. Such professorial detachment is surprisingly lacking in this book.
Curbing the zeal of prosecutors and holding back prosecutors and judges from forming improper alliances have always been intractable problems for criminal justice systems of different kinds in different parts of the world. Modern industrialized nations with high crime rates find it impossible to manage without a large prosecutorial bureaucracy. Until recently the British marvelously contrived to get along with a very small number of professional prosecutors, but they have paid the heavy price of allowing many prosecutorial functions to be conducted by the police. In response to this the 1981 report of the Royal Commission on Criminal Procedure recommends the creation of a regional network of Crown prosecutors whose functions would resemble those of our district attorneys.
We should not, then, expect to break up the prosecutorial machine, but there are ways in which its activities might be usefully curtailed. A dangerous aspect of the American system is the degree to which prosecutors are involved in the investigation of crime. This happens in various ways—through the efforts of the prosecutor’s own investigative staff, through working closely with agencies such as the FBI and the Drug Enforcement Administration, or through eliciting evidence against a suspect by calling witnesses before a grand jury. The commitment to detection and successful case building that are essential to investigative work cannot be easily discarded when the prosecutor has to assume his other role and become an officer of the court devoted only to seeking the truth in a constitutional manner. It may be impossible entirely to separate the investigative and prosecutorial functions but when they intermingle too freely the results will often be controversial and may amount to the kind of abuse of power that some have seen in the Rosner prosecution and some of the Abscam cases.
And what of the judges? Who shall guard the guardians? Certainly law professors and other scholars ought to be candidates for this job. Law reviews devote reams of paper to sifting doctrinal statements in the case law, but many of the criticisms made by Dershowitz of judicial behavior have nothing to do with bad principles. They are instances rather of misapplication of principle or outright evasion of principle. Legal commentators ought to devote more energy to describing these practices in general and to the exposure of particular instances, for at present they flourish in the twilight. Disciplinary procedures also need reform. It should be possible to obtain censure of a court that does not give serious consideration to a plausible constitutional claim. Judges who engage in significant secret communications with the prosecutor about a particular case should always be removed from the bench.
If prosecutors and judges are often flawed, defense lawyers bear the same stain. Dershowitz draws up a sorry taxonomy of attorneys who should be shunned by the discriminating criminal. There are those who are former prosecutors and may still be tame house counsel for the prosecution although nominally in private practice. Some of these lawyers have business steered to them by the prosecutor in return for not pressing too hard. Their counterparts are those attorneys who are virtually consiglieri to organized crime or drug traffickers, assuming a continuing relationship that treads the borders of complicity. Then there are respectable defense lawyers who simply will not act for their clients with unbridled vigor since they do not want to antagonize the court or prosecutor on whom their livelihood may depend.
The extent of the cooperation between prosecution and defense that is necessary for the day-to-day practice of law is not realized by the public. This requirement gives prosecutors a dangerous power to punish a defense attorney who bruises or offends them. The prosecution may refuse to plea bargain with such a lawyer or may bitterly contest his most routine requests. In this way defense lawyers may be trapped in the dilemma of having to dilute their future effectiveness if they do not moderate their efforts on behalf of a particular client.
Dershowitz’s book casts a strong light on one small corner of the criminal justice system (private defense practice) but his autobiographical theme does not touch most of the defendants who are processed daily through a plea-bargaining system by legions of prosecutors and public defense lawyers. In this main current of the system there are again difficult questions raised by the inter-dependency of prosecution and defense bureaucracies and the kinds of pressure each side can bring to bear. In both the public and the private sectors there is great need for more study of prosecutorial institutions and practices and the relations between prosecution and defense. While Dershowitz has not produced such a study his book makes us vividly aware of the need.
At the end of his book Dershowitz reminds us that Felix Frankfurter once said that he knew of no title “more honorable than that of Professor of the Harvard Law School.” Dershowitz responds, “I know of none more honorable than defense attorney.”
They are both honorable titles, and since Alan Dershowitz deservedly holds both of them we may hope that in the future his knowledge of the system will lead him to undertake a deeper analysis and criticism of legal institutions. Today he deserves our thanks for his marvelous adventure story of fighting appeals through the courts.
June 24, 1982