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Dershowitz on the Stand

The Best Defense By Alan M. Dershowitz Random House: $16.95:425 pp.

By Paul A. Engelmayer

THE MOST JARRING PART of The Best Defense comes on page 168. The same Alan M. Dershowitz who challenged PLO advocate Vanessa Redgrave to debate "anything, anywhere, anytime", who let it be known that he would represent Claus von Bulow in the Danish socialite's appeal; who once disrupted a Kennedy School panel chaired by a fellow Law professor by rushing the podium and shouting that a Palestinian panelist was a "metaphysical cheerleader"--the Alan Dershowitz almost everyone at Harvard has read about--says he resents lawyers who go public. "I do not like to see cases tried in the press," he says. "The dangers of media hype are obvious.

It's a stunning assertion Outspokenness has always been the hallmark of Dershowitz's style. In cases ranging from Harvard's controversial "Deep Throat" screening to the imprisonment of Soviet dissidents, he has loudly denounced violations of civil liberties, as if to re-assert personally the free expression denied his clients. He is, by now, no stranger to the front pages of the major dailies; his own book jacket notes that "he comments frequently on national television." Alan Dershowitz against media hype? C'mon.

Furthermore, Dershowitz has always followed the legal philosophy that the best defense" is a good offense, and the press has dutifully taken note of his rhetorical and procedural salvos. As a defense counsel, he has often turned the tables on unwitting prosecutors, putting them on the defensive by challenging, often successfully, the constitutionality of their evidence against his client. Dershowitz's legal fast-breaks and penchant for courtroom theatrics have made him by far the best-known part-time practicing attorney in America.

It's precisely because of Dershowitz's fame and flamboyance that it's unfortunate that the refuses to confront squarely the issue of appropriate legal style. Instead, he only suggests it fleetingly, as in his en passant digs at media hype. The Best Defense catalogues the 43-year-old professor's most intriguing courtroom battles, emphasizing his suspicion that he has suffered several key setbacks because judges resented his aggressive legal tactics and clever machinations. On the home front, style has also cost Dershowitz points. Much of Harvard considers him a crackpot genius. Pronouncements like last spring's out-of-the-blue challenge to Redgrave don't help.

Lawyers shouldn't be out to win popularity contests, but Dershowitz's grating nebbish image must have lost his some cases and persuasive appeal. The Best Defense's perfunctory jibes at press-conference attorneys seem to bely Dershowitz's own legal behavior. The contradiction muddles the issue of just whether "the best defense" in the genteel world of American law has a place for grand-standers like himself.

DERSHOWITZ DOES a much better job defending his profession than his style. It can be a hard case to make. Especially in the wake of the Hinckley verdict, defense lawyers increasingly seem like hired guns, masters at choosing exculpatory techniques for their clients. Many seem oblivious to the reality that, as Dershowitz himself acknowledges, "Almost all criminal defendants are, in fact, guilty." A good number care more about their professional "won-lost records" than about insuring equal justice.

The book makes two broad arguments on behalf of defense attorneys who exploit constitutional violations to clear their clients. The first is the traditional, liberal line: Someone's got to keep government prosecutors honest, by preventing them from, say, introducing unconstitutionally obtained evidence to convict defendants. When government is a lawbreaker, the argument goes, there can be no respect for law.

The traditional response is, of course, that a criminal shouldn't go free just because the constable blundered. But Dershowitz's ancedotal style of argument weakens that argument's gut appeal. He tells of successfully defending Sheldon Siegel, a boyhood acquaintance who had been indirectly linked to a Jewish Defense League bombing in New York. Dershowitz acknowledges Siegel's complicity. But, observes, the government tricked Siegel into confessing. It destroyed tapes crucial to Siegel's case and reneged on its promise of legal immunity. As a result, attorney Dershowitz fought to exclude any evidence that had resulted from Siegel's coerced confession. Without it, the government had no case. Hence, defense attorney as watchdog.

Alone, it's not an entirely satisfying explanation. You still wonder why it always seems to be Dershowitz who had to take it upon himself to keep the government honest by freeing criminals. He has, after all, challenged the government as a lawyer of last resort in many controversial cases--ranging from defending porn star Hary Reems to representing nursing home mogul Bernard Bergman to backing CIA agent-turned-whistleblower Frank Snepp to aiding the JDL conspirator. In some cases, his clever defenses advanced civil liberties; in others, they freed people who should be behind bars.

So why does he insist on defending so aggressively defendants who are up to their ears in guilt? His answer is deceptively simple. There's nobody else to do it. The sad part is, he's probably right.

The Best Defense paints a disturbingly accurate picture of elite corruption in the criminal justice system. Public defense lawyers. Dershowitz observes are often out to better statistics and to plea-bargain away their clients' cases for illusory victories. Others don't care at all about their clients, just their fees. Judges, many of whom are former prosecutors, often side with the state. And those lawyers skilled enough to offset those systemic biases are often too concerned about their reputations to defend a crook who's been villified by the press.

So it comes down to the man from Harvard Law, and mavericks like him. To his credit, Dershowitz doesn't say he's gutsier than most of his legal colleagues in taking on civil liberties cases or in defending social pariahs. His explanation is that, as a Cambridge academic with an independent income, he can lay his professional reputation on the line more readily than full-time practitioners. And Alan Dershowitz takes the lawyer-client relationship too seriously not to argue aggressively those appeals he does accept. You don't see many of today's average blow-dried attorneys taking cases at short notice and pulling consecutive all-nighties to prepare their cases. You do with Dershowitz.

He brings a certain forthright flair to his writing, as well. His account of his unheralded trip to the Soviet Union to negotiate the release of imprisoned dissidents--a venture that paid off dramatically years later--is moving, indeed. His description of the predicament of two teenage brothers on death row for murders their father committed with them helplessly in tow reads like a thriller. (It's also one case Dershowitz has yet to win.) He does spend a little too much time harking back to his Brooklyn roots in Boro Park, and his puns inspire cringes. But on the whole, it's surprisingly crisp, and modest.

To the public, Dershowitz's histrionics have probably eclipsed his effective advocacy on behalf of civil liberties and ostracized defendants. That's too bad; he'd sway more minds if more people took him seriously and didn't just think of him as that angry young professor with the long hair and loud voice. But even in the procedure-heavy field of law, with its emphasis on form, the bottom line is that substance still matters more than style. The legal profession probably would be better off if other lawyers began to risk their reputations by joining Dershowitz at "the constitutional barricades"--media event or no.

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