Transcript of Dershowitz's Hearing

The following is the complete and official transcript of a hearing held in New York City last Monday in the chambers of Federal District Court Judge Arnold Bauman to determine whether Bauman would recommend disciplinary hearings be instituted against Alan M. Dershowitz, professor of Law. Bauman threatened to impose discipline on Dershowitz on July 3 after Dershowitz charged a U.S. attorney had "deliberately" withheld evidence from the Supreme Court.

Bauman is presiding over a hearing on a motion by Edmund A. Rosner that Rosner be granted a new trial on charges that he bribed a policeman to obtain secret grand jury testimony. Rosner was convicted on those charges in December 1972, primarily on the basis of testimony of Det.Robert S. Leuci. Leuci has since admitted that he perjured himself during the first Rosner trial by failing to answer truthfully about his own history of criminal involvement. Dershowitz, who is serving as Rosner's counsel, charged that the U.S. attorney had documents which proved Leuci's perjury at the time the Supreme Court was considering reversing Rosner's decision, but did not make that information known to either the court or the defense. Elliot G. Sagor, an assistant federal attorney who is prosecuting the Rosner case, has labeled Dershowitz's charge that the U.S. attorney deliberately withheld the information about Leuci, contained in a document known as the Goe Memorandum, as "outrageous."

After Bauman made his threat against Dershowitz, the law professor retained Monroe H. Freedman, dean of the Hofstra Law School and an expert on legal ethics, to respresent him in Bauman's court. Freedman, Dershowitz and Sagor were present during Monday's hearing in Bauman's chambers. In the transcript, Bauman is referred to as "the court."

THE COURT: State your name for the record, please.

MR. FREEDMAN: Monroe H. Freedman.

COURT: Dean Freedman, some hours ago you indicated that you wished to be heard. That time has finally come.

FREEDMAN: Thank you, your Honor. I am here as an ACLU volunteer attorney to represent Mr. Dershowitz because we are concerned with the implications that he might be guilty of some impropriety in this case. I would like to make some observations about the merits of that issue.

COURT: I invite them.

FREEDMAN: First, I would like to ask your Honor that we be informed of the substantive rule that would be the basis of any such charge against Mr. Dershowitz and, second, after we have received notice of such a rule if your Honor might be intending to proceed in that direction in view of the fact that the Supreme Court has indicated that an attorney is entitled to due process--

COURT: Let me indicate to you, preliminarily, I am not thinking of holding Professor Dershowitz in contempt. I am thinking of referring this matter to the Bar Association for disciplinary investigation.

FREEDMAN: I understand. That's a rather serious step to take. It would be easier for us to address that question before your Honor before it ever got to the Bar Association if we knew what rule of what code or what canons, or whatever it is, that Mr. Dershowitz is supposed to have violated.

COURT: Having been a member of the grievance committee for some three years many years ago I am not aware of any instance in which any judge who has referred such a matter to any grievance committee has ever gone through the canons. It is for the staff of the committee on grievances and, ultimately, the committee on grievances itself to determine whether the conduct of counsel has violated any of those canons.

FREEDMAN: I understand. What I urge you to do is not to take that rather drastic step unless you have satisfied yourself on the basis of having given us an opportunity to address ourselves to it.

I have done some research on the issue, particularly with reference to ABA standards relating to the defense function and the code of professional responsibility; according to those authorities an attorney is required to press all legally available points, his client's desires in the matters are paramount, his professional opinion, his own professional opinion of the merits of the point that is raised is irrelevant, and the only test is, indeed, even if the rule that is argued for is "unwarranted under existing law" as long as it is supportable by a good faith argument the attorney is required to go forth.

COURT: What you say is undoubtedly true, but we are talking about a somewhat different situation.

Let's not really discuss the facts at this point. I think for the present they are not what you are here to talk about. You are here to talk about, if I understand it correctly, certain facts. What then am I in a situation to do or what should I not do? I would think as an abstract matter, and not necessarily relating to this case, that as a general rule the public declaration attributing unethical conduct to another lawyer, be he a public official or not, assuming that to be baseless, might be conduct on which the committee on grievances would interest itself. That's what we are talking about.

FREEDMAN: I don't think we can weigh that apart from such things as the professional standards and constitutional standards that a lawyer is required to abide by in representing a client. The test is, according to Anderz v. California, a Supreme Court decision in 1967, that the attorney is required to argue an issue unless it is wholly frivolous as long as it might arguably support the client's position.

Then, in the code of professional responsibility, specific notice is taken of the problem of state of mind as being what they call a particularly perplexing matter.

COURT: Let me interrupt you for a moment. I want to cast this thing in its perspective.

Let's assume that Professor Dershowitz has said-and I am picking each word rather carefully-that the United States Attorney deliberately-and the last is the key word-suppressed evidence in the Supreme Court. We are not talking about negligence suppression. We are talking about deliberate suppression.

Now, let us assume that there is not the slightest evidence of the deliberate suppression. Just for the purpose of this discussion, would you say that such conduct is above discipline?

FREEDMAN: I would say so on at least two grounds, although I have difficulty in the context of this case accepting a premise that to suggest deliberateness on the part of the government is wholly frivolous and beyond the good faith argument on Professor Dershowtiz's part.

But the Supreme Court has held, for example, that the justices themselves as public officials are not above the most extreme degree of criticism. The Kongisberg case was one where the lawyers charged that the members of the Supreme Court were part of the cold war machinery that was betraying America, and Konigsberg was denied membership in the bar because of that. The Justices of the Supreme Court said, "We are public officials just like others and what he is doing is exercising his free speech rights in criticising public officials." I don't think a public prosecutor is above a Supreme Court Justice in that regard.

I think the standard must be, if criticism of a public official can be grounds for discipline, it must be wholly frivolous. It cannot be anything other than the constitutional standard of effective representation or standards set down by the Code.

In this very courthouse there was recently a charge of deliberate obstruction of justice against a former prosecutor, the Attorney General of the United States [John N. Mitchell]. The government or the lawyers who levied that charge failed to prove it. I am not aware of any suggestion that they be disciplined for that. It seems to me--

COURT: You see the difference wherein they presented evidence to a grand jury and the grand jury has found probable cause to believe that the crime has been committed and just some lawyer standing up in the courtroom and making this--you surely see there is a difference?

FREEDMAN: I see there is a difference, but I would not characterize Professor Dershowitz as some lawyer standing up in a courtroom and making wild allegations.

COURT: Because of the office that he holds in the university he should be held to a higher standard and because of the situation in teaching young people to become lawyers. I really feel that he ought to be held to a higher standard than some fellow who has not the background and who is not constantly exposed to classes upon classes of our best young people.

FREEDMAN: Whether we hold it at a higher or lower standard his obligation remains to represent his client vigorously.

COURT: There comes a point beyond which vigor is not acceptable.

FREEDMAN: I would concur in that, but that standard, as it has been set down in the authorities that I have seen, is that he is not entitled to make arguments that are wholly frivolous. Arguments that are beyond fair argument, good faith argumentation--I think on the facts of this case it would be impossible to make a finding that he has acted other than in good faith in presenting arguments that support his position.

COURT: I am going to invite you or him to recite to me anything in the record of this case that shows that the government--and I keep emphasizing the word "deliberately"--deliberately suppressed evidence in the Supreme Court of the United States. I invite you to do that.

FREEDMAN: "Deliberate" is a term of art. As I heard the case just sitting here today, I was satisfied in my mind on the basis of what I heard that the government had made a conscious decision not to present evidence and not to permit the Supreme Court to know what any Supreme Court Justice sitting on this case would want to know and be entitled to know. That's my judgment having sat here.

The fact is that the word "deliberate" is a term of art. It does not mean necessarily willful in the ordinary criminal sense as defined in this circuit, for example. This is a quote:

"Where the prosecutor's suppression is deliberate, by which we include not merely a considered decision to suppress, taken for the very purpose of obstructing but also a failure to disclose evidence whose high value to the defendants could not have escaped the prosecutor's attention--"

The only question, therefore, is whether Professor Dershowitz was acting in good faith in drawing his inference from the facts that we heard this morning and other facts that are of record in this case despite the fact that you as the prosecutors might draw a different inference, but it is in the context of the rules set down by the Court of Appeals that he made the allegation "deliberate," which is a term of art, and I think supported it, but at least made a colorable argument, a non-frivolous argument to that effect.

COURT: I will hear whatever else you want to say. I invite you to submit a brief, if you feel you want to, by next Monday.

This is not a matter that concerns the government. I am not interested in hearing the government. This is strictly a matter within the Court's jurisdiction.

Would somebody leave word at my chambers this evening as to whether or not we are going to go forward at 10 a.m. It does not really make any difference. I will be here at 9:30 a.m.

DERSHOWITZ: Would your Honor like to hear what my own state of mind was in regard to what I meant by "deliberate," and what I had in mind and what I think the government has proved?

COURT: Yes.

DERSHOWITZ: I think this may have been one misunderstanding.

COURT: Let me say what I understood by what you said. I understood you, by your use of the word "deliberate"--and certainly any layman would understand your use of the word "deliberate" to be in substance: premeditated for an evil purpose suppressed evidence. That's one of the two definitions in substance that the Dean just read. That is what I understood you to say in court. I am perfectly happy to hear you say what you had in mind.

DERSHOWITZ: In preface, you have to understand that right at the beginning of our memorandum of law we define "deliberate" to mean one of two definitions, that is, not merely considered decision to express taken for the very purpose of obstructing but failure to disclose evidence. That is what we set out as our definition in the memorandum of law. My reference to "deliberate" was intended as a reference to that standard. I think your Honor knows me well enough and has heard me often enough to know that on every occasion I have accepted the good faith representations of particular attorneys appearing in this court. I have always said that I do accept the good faith representations of Mr. Putzel, Mr. Jaffe, Mr. Sagor.

This has been a hotly contested one and there have been some matters where I personally believe the government has not the very high standards that are required of them in terms of disclosure.

I think your Honor should also recall that I did not volunteer the statement deliberately. The government objected to the line of testimony I was pursuing at which time I was obligated to make an offer of proof. I had no intention to characterize where I was going at that point. My intention at that point was simply to ask the questions and to try to elicit information, and then if the information bore it out make a reference in my written brief to what we had alleged in our earlier presentation.

COURT: Let me see if we can't cut through this. Do I understand then when you use the word "deliberate," you were not using it in the sense of premeditated and evil but rather in the sense of failing to reveal something that you feel was sufficient of importance to be revealed? Is that correct?

DERSHOWITZ: Yes. Let me be candid and clear.

COURT: Yes.

DERSHOWITZ: It was my own view at the time that the government had made not an accidental but a deliberate decision. They had thought about it and decided not to turn over the Goe memorandum. Your Honor and I disagree as to the significance of the Goe memorandum, and the government and I disagree.

It was my view that there was a decision to withhold the Goe memorandum at that point. It was not my belief that the decision was necessarily made for bad purpose. Certainly, reasonable people could disagree as to whether the government had an obligation to disclose it, but I did not think on the basis of the conversations I had with people in the government that that was an accidental inadvertence. I had been told that the government knew about the Goe memorandum. It is possible that I was overexuberant about it.

I, as Mr. Sagor testified, was so excited when I had the Goe memorandum, that it seemed to me that it was the most critical point in this case. Here is the first piece of evidence that we had that the government had some knowledge in their files and I did tell Mr. Sagor, "That does it. That's the key."

It was with that state of mind that it occurred to me that this definition was met: failure to disclose evidence with high value to the defense and could not have escaped the prosecutor's attention.

COURT: Read the first part of the definition.

DERSHOWITZ: When the prosecutor's suppression is deliberate and includes not merely a considered decision to suppress taken for the very purpose of obstructing--

COURT: Stop right there. I take it you have not accused the government of the first part of the definition?

DERSHOWITZ: I did not intend to accuse the government of making a decision to suppress for the purpose of obstructing. No, I did not.

COURT: All right.

DERSHOWITZ: It seems to me that I was very excited about that. Mr. Sagor and I--

SAGOR: I will not make a statement as to what you told me personally. The Judge has precluded that. Don't take me as necessarily affirming--

DERSHOWITZ: I repeatedly called Mr. Sagor. I repeatedly asked him, "What do you have? What have you turned up? Do you have anything about Leuci's crimes?"

I was interested in getting every bit of evidence. Then, when we found out there was a piece of evidence that indicated some knowledge by the government pretrial, I was very excited about it. I may also have colored my view by the following:

I am an experienced Supreme Court practitioner, much more than in any other court. I know and I believed that our chances of getting a new trial were much better in the Supreme Court if we were able to get the information to them at this point than they would be if we went through the route of a hearing and a trial motion and denial of the hearing and appellate review.

I know the Supreme Court on occasion will take a look at a case and say to itself, "My God, there is really injustice here," and simply in the exercise of their special power to do justice in Federal cases, to reverse and to remand. I was banking on that. I was hoping for that. That's why I was very upset professionally, and my client was very upset, when we learned several days after the Supreme Court had disposed of the case that there was this peice of information that had not been given to us.

It seemed to us that it was our decision and not the government's decision whether to bring that piece of material to the Supreme Court. The Court may have agreed it was frivolous or not significant. What would the harm have been? At least then the Supreme Court would have had it and with full knowledge. That was my state of mind at the time. I did not intend, and I certainly did not intend, to accuse a particular person of anything. I know the high regard with which you hold the United States Attorney's office.

COURT: I think I should tell you that it is not because I was member of the United States Attorney's staff itself but because the United States Attorneys in this district over the years-and this one in particular I might say-continuously have set high standards of professional integrity. Certainly my information goes back to 1953, and I know that having heard people talk about the United States Attorneys in this district. The office has a very long tradition of integrity, and I really must tell you I have not seen one iota of evidence in this situation of any improper conduct. I mean by that that it is perfectly apparent to me that when a man testified about three or four instances in which the amount of thievery was between $4000 and $6000--I have forgotten--that another $50 was not going to tip the balance.

However, I really think that since the record is now clear as to what you meant to impute to the United States Attorney, and the sense in which you used the word "deliberate," I don't think I will pursue the matter any further.

DERSHOWITZ: I appreciate that.

COURT: You know, gentlemen, we really live at a time when government officials of all kinds have come in to disrepute, some of them very deservedly, but I really think that to unjustly attack a public official who has not earned that certainly is not in accordance with the responsibilities owing by a member of the bar. Frankly, I understood your use of the word "deliberate" in a more vernacular sense that the language of the case you read.

As I say, since you have indicated the sense in which you used it, certainly, over the time I have known you, this and other matters, I accept your word.

The matter is closed.

(Time noted: 5.00 p.m.)