It's a shame that such a talented lawyer -- and engaged thinker -- as Alan Dershowitz has become little more than a self-appointed consigliere for high society's better-known scumballs and bottom-feeders. But you have to hand it to the defender of such lowlifes as Leona Helmsley, Michael Milken, Claus von Bulow, Mike Tyson, New York slumlord Rabbi Bergman, and O.J. Simpson: like the Energizer Bunny, he just keeps on going, defending the indefensible whether it be in court, on "Nightline," in front of his Harvard Law School classes, or between the covers of quickie books. And though Alan Dershowitz has become one of those lawyers society is growing to hate, he makes a good case that in our constitutional system, someone has to do it.
In Reasonable Doubts, Dershowitz, hired as O.J. Simpson's "God forbid" appeals lawyer, adds little to what the more careful followers of the "crime of the century" already know. He effectively summarizes what was wrong, from a jury's point of view, with the prosecution's case: the knowing use of perjured testimony from members of the LAPD, the embrace of maniacal bigot Detective Mark Fuhrman, blood evidence that was often curious at best and tainted at worst, and the over-reliance on prior domestic abuse as a sufficiently persuasive motive for murder.
Interestingly, Dershowitz makes little attempt to establish O.J.'s innocence (in fact, one suspects he thinks him probably guilty), but persuasively argues that the jury was given plenty of ammunition for reasonable doubt. That jury may have contained some of the dumbest people on the planet, but Dershowitz asks what any of us would have done as jurors faced with the incredible amount of obviously hinky and incompetent behaviour by L.A's finest.
Gossip? None. Dershowitz lavishes praise on Robert Schapiro for laying down the pre-trial strategy -- hiring the best technical experts in the country, concentrating on the forensic weaknesses of the case -- which enabled the defense to outthink and outsmart the prosecution at virtually every turn. And he excoriates Marcia Clark for what he says was her often unethical and hysterical behaviour in Lance Ito' s courtroom. He also provides some Criminal Law 101 style lectures which the reader will either find educational or tiresome.
Lessons? Not as many as the book's hype will lead you to believe. Basically, says Dershowitz, all is well with the U.S. legal system. Such bromides may not convince those appalled by the O.J. travesty.
Dershowitz does concede that it would be nice if indigent defendants were afforded the same kind of representation as O.J. And he hammers hard for one reform: the need to root out the kind of police perjury that occurs routinely in criminal cases, and that in this particular case, probably enabled a guilty man to walk free. -- Salon
Paul J. Weber
The O. J. Simpson trial is stale news. For the foreseeable future it will most likely be discussed in conjunction with the trial of au pair Louise Woodward and possibly the Rodney King police trial as a kind of unholy trinity; a tribute to American justice gone awry. Perhaps it will be viewed in an even wider lens with the Menendez, McVeigh and Nichols trials to give a panoramic, if mixed view of American justice. That possibility notwithstanding, Reasonable Doubts does delve into one trial to confront a number of classic questions about AmericaÆs legal system.
Alan Dershowitz, high priced appellate attorney, prolific author and Harvard Law Professor, uses the trial to teach about the system. He admits that when he was first asked to join the defense team "I knew that the Simpson case would become the vehicle by which a generation of Americans would learn about the law." It is likely that at the same moment he saw the possibility of a new book. To his credit Dershowitz is a very fine writer in the F. Lee Bailey mode. Unfortunately he shares BaileyÆs irritating habits of incessant name dropping and self-referencing. Do we really need to know that just after he had finished taping an appearance on the Charlie Rose Show Dershowitz was on his way to Israel with his older son, Elon, and had just checked into the King David Hotel when Robert Shapiro called? Well, no and yes. Such details, annoying as they are, add a sense of being there with a kind of behind-the-scenes, play-by-play perspective. In the end what we get is worth the irritation.
This is an ideal book for undergraduate classroom discussion. Each of the ten chapters is framed as a question that the author then attempts to answer through an analysis of various issues in the Simpson trial. Each chapter includes a discussion of one or more classic legal issues. Chapter I: "Was the Simpson Case Decided Even Before the Trial Began?" illustrates how prosecutors and defense teams attempt to frame public opinion and gain tactical advantage, in this case by having preliminary evidence presented before a judge, not a grand jury. This allowed the defense team to hear the prosecutionÆs best case, cross-examine witnesses and explore weaknesses in the case before trial began. Dershowitz concludes that this, like many trials, was won outside the courtroom.
Chapter II: "Is the Criminal Trial a Search for Trust?" does more than yield the expected "Of course not. Each side seeks to win." Dershowitz points out that most criminal defendants are guilty in fact, but that thereÆs a difference between actual and legal guilt. The point of a trial is to have the prosecution prove guilt BEYOND A REASONABLE DOUBT, one of the subtle biases in our system. It shows that we would rather err on the side of letting a guilty person go free than an innocent one be convicted. While the book was written before the civil trial, the author discusses the possibility of a defendant being found innocent in a criminal trial but liable in a civil trial. While lay observers find this a basis for cynicism, the author uses it to show the difference between levels of proof required in criminal as opposed to civil trials. Throughout this chapter, and indeed the book, the author is very cagey about whether he believes Simpson was guilty or not. Chapter III: "Why Do So Many Police Lie about Searches and Seizures? And Why do So Many Judges æBelieveÆ Them?" initially focuses on Detectives Vannatter and Fuhrman, but then wanders off into the larger issue of dishonest police testimony and how the media tends to fall for it. Dershowitz concludes that "most police perjury is committed by decent cops who honestly believe that a guilty defendant will go free unless they fib about how they gathered the incriminating evidence." One might also conjecture that if police lie to the extent alleged by Dershowitz, they do so to counteract disingenuous tactics of defense attorneys. That, of course, is an excellent topic for class discussion.
Chapter IV: "Were the JuryÆs doubts in the Simpson Case Reasonable or Unreasonable?" builds on the previous chapter to explain the more technical concept of "reasonable doubt" and how possible police misconduct can implant it. Here the author explores a curious idea, that perhaps police were trying to frame a guilty person. Chapter V: "Did the Jurors View the Evidence Through the Prism of Race More than of Gender" does a very credible job of exploring these sensitive issues. Dershowitz ultimately concludes that because of the long, unsavory history Blacks had with the Los Angeles Police, in the minds of the jurors, three quarters of whom were black women, race issues trumped gender related life experiences.
Chapter VI: "Why Was There Such a Great Disparity Between the Public Perception and the Jury Verdict?" is mostly a discussion of various media commentators and a defense of television in the courtroom. Essentially the author argues that commentators (he singles out George Will for particular criticism) were biased against the defendant and so poisoned the public mind in a way they couldnÆt influence the sequestered jury. Chapter VII: "Can Money Buy an Acquittal?" is easily answered. Yes. The author, of course, gives a more complex answer, comparing prosecutorsÆ resources to those of defendants. He argues that "no amount of money can buy reasonable doubt in an open-and-shut case." But of course defense attorneys with virtually unlimited resources can plant that reasonable doubt in virtually any case. So the answer remains "yes."
Chapter VIII: "Are Prosecutors and Defense Attorneys Advocates Only for Their Clients, or Also for Justice?" gives the author an opportunity to discuss all the hate mail he has received during and after the Simpson trial for defending a guilty person, and also for making "big bucks" for doing so. It also gives him an opportunity to point out the mistakes of the prosecution, particularly Marcia Clark. The answer to the question in the title comes as no surprise: "both prosecutors and defense attorneys are supposed to be advocates for their clients. But prosecutors are also supposed to be advocates for justice, while defense attorneys are not even permitted to try to achieve justice, if by doing so they would disservice the legitimate interests of their clients." (p. 181)
Chapter IX: "What If the Jury Had Convicted Simpson?" is a brief overview of the appellate process and its importance. Since this is DershowitzÆs area of expertise he paid particular attention to issues upon which an appeal could be based. Since there was no appeal we are given a hypothetical, moot court exercise appeal in the appendix. Finally, Chapter X: Was the Simpson Trial a æGreat Case That Will Make Bad LawÆ?" paraphrases a statement of Justice Oliver Wendell Holmes and gives the author a chance to discuss many of proposed calls for "reform" of the criminal justice system that followed the verdict. He urges caution, and concludes that "only time will tell whether the O.J. Simpson trial was a great case that made bad law, or merely another media event that brought fleeting fame to all who participated in it. One observation that will not be disputed is that it was a case for the 1990s, involving as it did the most controversial and divisive issues of this decade: spousal abuse, racial politics, economic inequalities, scientific innovations, criticisms of lawyers, and instant communication." (p.206)
Dershowitz is conscious throughout the book of the emotions charged up by the O.J. Simpson trial and acknowledges that this book is unlikely to change anyoneÆs mind about the guilt or innocence of the defendant. He does, however, want people to understand how the system works, why "reasonable doubt" is a marvelous legal principle and why, indeed, it is better for a guilty person to go free than innocents be found guilty. Despite my annoyances with the authorÆs style, this is an engaging book that is ideal for teaching about classic controversies inherent in the criminal justice system. I plan to assign it to my own classes.