(22. – 909.) America on Trial by Alan Dershowitz – This post continues my review of America on Trial; a compilation of famous American trials by Dershowitz, the well known Harvard Law Professor and litigator.
There are numerous constitutional decisions for important cases must often interpret the American Constitution. Originalists, currently in favour by American conservatives, would limit interpretation of the Constitution. An example of that position in a judgment is:
…. but while it (the Constitution) remains unaltered, it must be construed now, as it was understood at the time of its adoption. It not only the same in words, but the same in meaning, and delgates the same powers to the Government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex for the popular opinion or passion of the day. This court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to it, and it must not falter in the path of duty.
Variations on such language are pronounced daily by American conservatives of the 21st Century. The paragraph quoted comes from the Dred Scott decision of 1856 in which the American Supreme Court ruled that freed American slaves were disqualified from being American citizens.
A century later the United States Supreme Court in Brown v. Board of Education did not limit itself to an “originalist” interpretation when it struck down segregation in schools, the separate but supposedly equal public education in place in many states. Dershowitz discusses the decision:
The opinion itself was elegant in its simplicity. Warren posed the essential question: “Does segregation of children in public schools solely on the basis of race … deprive the children of the minority group of equal educational opportunities?”
The answer was “we believe that it does”: “To separate [grade school children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”
Dershowitz shows the importance of a good lawyer . In the Leopold and Loeb case a pair of Chicago teenagers murdered a boy to show they could kill and get away with murder. They were saved from the death penalty by the brilliance of Clarence Darrow’s closing argument. On executing children he said:
I am not pleading so much for these boys as I am for the infinite number of others to follow, those who perhaps cannot be as well defended as these have been, those who may go down in the storm, and the tempest, without aid. It is of them I am thinking, and for them I am begging of this court not to turn backward to the barbarous and cruel past.
In other cases, especially appeals to the United States Supreme Court, Dershowitz says the lawyers play little part in the decision. Having been a Supreme Court clerk and been involved in Supreme Court cases for decades he states:
Perhaps the most persisten mythology surrounding great cases, especially great Supreme Court cases, is that the lawyers – especially the lawyers for the winning side – played pivotal roles in the victory. That myth is certainly prevalent with regard to the lawyers who argued Roe v. Wade, the case that first established a woman’s constitutional right to choose abortion.
I believe he under states the significance of appellate lawyers such as himself, especially at the first level of appeal from a trial decision. A good appellate lawyer can be the difference in successfully challenging or defending a trial decision. Dershowitz provides a personal example in the Claus von Bulow case. Were it not for his fine work on the appeal I doubt von Bulow would ever had a second trial where he was found not guilty.
His discussion of the von Bulow case also displays Dershowitz’s forthrightness in addressing the merits of a decision. Von Bulow was charged with attempting to murder his wife, Sunny, by injecting her with insulin. Dershowitz asserts von Bulow was not merely not guilty but actually innocent of the charges:
But I sincerely believe that there was no compelling evidence of any crime. Accordingly, we can claim little credit for the jury’s correct verdict at the second trial. Innocent defendants should be acquitted, with or without good lawyers, though it does not always work out that way. But having an innocent client helps a great deal, just as it helps a doctor to have a curable patient.
A notable exception to his practice of strong personal opinions on the correctness of decisions is the O.J. Simpson case where he is unusually circumscript over O.J. being found not guilty. Dershowitz was primarily involved in the case as the lawyer who would frame the grounds of appeal if O.J. were convicted. O.J. called Dershowitz his “God Forbid” lawyer needed only if found guilty. With regard to the facts there is no expression of belief in O.J.’s innocence by Dershowitz to rival the ringing comments of his von Bulow statements. It is striking how muted his remarks are with regard to O.J.
America on Trial provides vivid snapshots of the American legal system. It is an excellent book. Currently, the author, now over 50 years into his legal career, continues to advocate for the unpopular and vilified. Most recently, he has argued that President Trump could not be guilty of obstruction of justice with regard to firing FBI director, James Comey. Dershowitz stated on CNN:
"You cannot have obstruction of justice when the president
exercises his constitutional authority to pardon, his
constitutional authority to fire the director of the FBI, or his
constitutional authority to tell the director of the FBI who to
prosecute, who not to prosecute," .....
We shall see if Dershowitz becomes President Trump’s “God Forbid” lawyer.
Dershowitz, Alan - (2017) - America on Trial - Part I