For The Defense … Litman's Law

GUEST: Jack Litman, Esq.
VTR: 12/8/1990

I’m Richard Heffner, your host on THE OPEN MIND. A few years ago, MS magazine described my guest today as “a theatrical, aggressive attorney who goes to extremes to get his client off the hook”. Not a bad recommendation if you’re looking for someone tough and smart to defend you. And, indeed, so some, defense attorney Jack Litman has gone to extremes when Richard Herrin killed Bonnie Garland and, more recently, when Robert Chambers killed Jennifer Levin…and he defended them both. His critics said his prime technique is to “blame the victim”…and probably agreed with The American Lawyer when it gave Jack Litman its “Now You Know Why People Hate Lawyers Award”.

But when you get to study this former Manhattan Assistant District Attorney you get to know that then he prosecuted the accused as vigorously as he defends them now…always relishing the attorney’s obligation to give his client his best short, whether that client is the state or a defendant.

Yet, when psychiatrist Will Gaylin interviewed my guest at some length for his book on The Killing of Bonnie Garland, Mr. Litman said, “I prefer the defense…there’s no comparison in the way you can feel when you get an acquittal. As a defense lawyer I get the same satisfaction even if I know they’re killers…because you’ve saved that person fro the clutches of society”.

Well, Dr. Gaylin picked up on this business about “the clutches of society” as what he called “a term which reflects a bias against the common good”…a kind of individualism run rampant. And I want first to ask my guest just how inherently antagonistic one has to be towards the larger community to be a top-flight criminal lawyer. Indeed, is it that antagonism that led the State Bar Association a few years ago to give Jack Litman its “Best Criminal Defense Lawyer” award? Mr. Litman?

Litman: I think one has to have a healthy skepticism against authority. I developed it, I think, as a young child being the youngest of five and always having to fight to have my own words heard in the family. But it is very, very important that we have a group of people in our society called defense lawyers who will champion the cause of the individual against the enormous power arrayed against those individuals by the state.

Heffner: Did you feel that way when you were an Assistant District Attorney?

Litman: No, I didn’t. I think I cut my eyeteeth in the experience in the courtroom as an Assistant District Attorney, and figured that if I was going to make mistakes as a young lawyer I’d better make them on behalf of a society who would more easily absorb the blow of my mistakes, then if I did on behalf of an individual.

Heffner: But you k now, Alan Dershowitz sat at this table, not more than a few weeks ago, saying somewhat the same thing. You’re both positing the notion that there needs to be a cadre of individuals who will oppose the all impressive state. Where does that come from? You say it may come from being one of five youngsters. But there’s a philosophical pitch there, too. Is it all quite so…

Litman: Oh, no. No, no…no…there…I was just being somewhat coy, giving you somewhat of a psychological background. There is a very ennobling principle behind all of this. I mean one assumes that if a criminal commits a crime he is a) guilty of the crime, he is definitely criminal, there is a crime, the judge will act very fairly, the prosecutor will act above board and the jury will render the best decision. And that is not the case. We’ve seen that time and time again. There are innocent people who are caught up in the system who shouldn’t be there in the first place. There are people who are prosecuted for reasons other than their guilt. That they come from a certain segment of society, for a variety of reasons they are prosecuted. And then there are people who are over-prosecuted, people who commit petty larceny, but who are indicted and prosecuted for robbery, people who commit the very lesser crime of homicide, but who are prosecuted, instead for murder. We need people…defense lawyers to stand up against the power and it is an awful power of the state, to say to the state, “Prove your case”. Because by doing that we serve not only the principles and the values of all of us, but the principles and the life and the liberty of the individuals who are being tried.

Heffner: Mr. Litman, how well do you think most members of the public receive that message?

Litman: I think they don’t receive it well at all. I think probably the blame, to some extent, must fall on the shoulders of defense lawyers. I don’t think we’ve gotten our message across well enough to the public. All I can say is that on occasion, when a person who is, to use a wrong expression…Right Wing or Conservative, and who is very law and order minded gets himself arrested or has his child arrested and comes to my office, all of a sudden they want the full panoply of Constitutional Rights that everyone enjoys. So it usually turns on…whose ox is gored and then people realize that this is not just a bunch of cavalier attorneys riding in on white horses, or black steeds trying to fight, you know, the large society. But it is an extraordinarily important principle that we have people who would challenge the authority of the state at every turn.

Heffner: It’s interesting that you say you think that perhaps one of the problems here is that the criminal bar has failed adequately to interpret its role to the public. Why? You’re all so darn bright, it seems quite clear that the criminal bar is made up of an awful lot of bright people. Why haven’t you communicated adequately?

Litman: Well I think we’re starting to do that. I think we’re starting to get the message across, but criminal defense lawyers as a rule are so caught up, as I am, and as all of us are who are in this profession, defending individuals that we forget about the larger public who must respond to the, the scheme that has developed from all of these cases. They don’t look at what, what this means as a societal issue. They look at a particular case and they say, “These facts are horrible. They’re horrific. How can you possibly represent a human being like that? You must be as horrible as that human being, assuming he or she is guilty”. And they lose sight of the ennobling principle that underlies it. And being so caught up in representing the individual, we lose sight of the overall goal and we have not banded together to bring that message across. In the last several years, in the last 10 years, we have banded together in a variety of associations. I’m not the President of one in New York State called the New York State Association of Criminal Defense Lawyers, and part of our goal is to get across to the public the important message of the defense of individual liberties and civil rights.

Heffner: Do you think that there’s a chance in the world that you will be successful in doing so at a time when the crime…crime in America is probably number one concern of most people?

Litman: If you’re saying we have a difficult task ahead you’re absolutely correct. But that’s why we have to shout; perhaps a bit louder than we would otherwise. When times are easy everything goes very well. But it’s the time, when times are difficult that we must remind people, even when there is crime, that as Oliver Wendell Holmes said, and I’ll paraphrase it…the bad cases make bad law because they titillate the emotions and the effect…the, the emotional input that people have to, and the identification they have with the victim and at times like this even well-settled principle of law will bend. But the lawyer and the judge and the rule of law must prevail because otherwise people are simply going to sweep away the constitutional protections we all have. The common sense protections we all have simply to say, “Let’s get the criminals”, and then when all the trees are down, who will protect us when the evil winds start to blow?

Heffner: Yes, you say that common sense protections, but I think most people “out there” would say that common sense demands something very different. That common sense demands that the community…Will Gaylin talked about community interests…was concerned that you were giving expression to not just an anti-authoritarian point of view, but an anti-community, and anti-society point of view.

Litman: Well, I think he’s incorrect in that and I think it’s very important that when we talk about Constitutional Rights that we make it understood that they in fact support good community values. Not the individual rights of horrific criminals. The notion that our homes, for example, should be basically immune from (???) and widespread search and seizure by the authorities, by police, is something I think everybody can understand. We do not want to see a society, as existed not many years ago in Europe when the people simply knock on the door or take the door off the hinge whenever they wish in order to search for that which they’re looking for. Sure, the public will say, “Well, if there’s a murderer and the murder weapon is there, let them go get it”. But I’m not so sure that society would say, “Well, we don’t like pornographers, but I like to watch X rated films in my own living room with my wife. I don’t want the police coming in and saying, ‘Well, I think this is pornographic. I’m going to take this away’”. Or if my child ever dabbled in marijuana, the police can simply walk into the house whenever they want and search to see if there are any drugs in an apartment building. But that there’s a good communal value of having people secure in their own homes, that there is a place of privacy in our community where people can feel in repose and quietude. And that’s one’s home.

Heffner: Well, it’s interesting that you said a moment ago, that people in Europe, not so many years ago, not so many months ago, almost, were aware of these needs as we are not, but we have not experienced what they have. We have not experienced it since perhaps the founding of the Constitution in a continuous, rampant way. What hope its there that people, as far removed form the negative authority of government, that imposition of governmental control can possibly, particularly in the face of rising crime statistics, understand…hear in the first place, and then understand your message?

Litman: You have a very good point. It is a very, very difficult message to get across and I think we simply have to re-double our efforts to do it. I think we simply have to point out and keep pointing out that there are so many, many cases, where the police arrest the wrong person, where people who have been incarcerated for years, turn out to be completely innocent and where people are over-prosecuted for crimes which are of the minor nature and sent to jail for major felonies, shouldn’t occur. When people’s rights are violated because the Transit Authority decides that 42nd Street is a bad subway station and they’re going to clean it up, and they just sweep up 300 people in their grasp. As these things come out from time to time, even in the avalanche, in the face of the avalanche of the rise in criminality, nonetheless, I think the public will understand. I think the public has to understand. In fact the more crime there is, I think the public understands to some extent, that the criminal justice system is not there to punish crimes. We are expecting it to, we are asking the judges and the prosecutors to become super-police heroes, and to rid society of crime, and perhaps we will finally understand that that is not the way to deal with the problem.

Heffner: What’s the way to deal with the problem?

Litman: The way to deal with the problem is to give people, when they are born, an opportunity to learn, to be loved by loving parents who will take care of children, to live as human beings in an equal society, to grow up with the same opportunities your children and my children have, and perhaps then we will be able to lower crime. It is better that we pay the price now for changing society then wait to have people who have not been fed properly, who haven not been raised properly, to commit crime and they worry about building…as the Governor has recently said, $100,000 for a, for a jail cell. We will have a population of people in jails in the state of New York by the year 2000 of over 100,000 people. Richard, in 1970 there were only 10,000 people, 12,000 people in state prison in New York State. We’re going to have in 30 years since that time 100,000 people. Where’s the money going to come from? Perhaps people will understand that simply by punishing after the fact, that’s a very, very difficult and terrible way to solve a problem.

Heffner: You…

Litman: …Prevent than to cure…

Heffner: You wouldn’t think me mean or cruel or almost prosecutorial or defense attorney-ish…

Litman: I know you too well…

Heffner: …if I ask you…do you believe…do you really believe that we’re going to learn the lesson that way?

Litman: I think we’re going to because we’re going to run out of money doing it the other way. I think people are going to be sick and tired of spending, every two years another $2 billion dollars to build jail cells.

Heffner: But, Jack, if we run out of money that way, we’re not going to have the money to do what it is you fell will make it unnecessary to build those jail cells.

Litman: Well, let me tell you what I think is…we’re going to go way off base, and you must forgive me, but I…what we are lacking in our society is a common human morality. We don’t even have a dialogue of morality in our society, where human beings, all of us, care about the weakest in our midst, the people who are the least privileged in our midst. If we had a dialogue about that as opposed to a dialogue about “How much money am I going to spend for gas or is my success going to be measured by how much money I make?”, then people can finally understand that this country can look like most of the other civilized and very industrialized countries in Western Europe and Japan where there is a sense of community, where people worry about the people who are the least privileged, and where we do not have…or where they do not have the type of rampant criminality we have here. Will we eventually learn the lesson? I think we will. I think we will learn it because we are seeing now, with all of the re-doubled efforts, supposedly, for repression and the crime rate, not only has gone up, the jail sentences have gone up. The incarceration has gone up…has it stopped crime? Not at all, not at all. And I think people will realize, certainly we must punish those who commit horrific acts. But at the same time, we must take a longer vision, a better view of things, so that the world 20 years from now, will simply not be solved or dealt with by having someone putting fingers in all of the dikes of crime that exist. We have to change the moral, the ethical base of our society. And there is none right now.

Heffner: Now what was the vision that informed you and a group of other leading members of the criminal bar in New York, to become actors? And I very seldom have actors sitting here at this table, but not so long ago…not so many weeks ago, I watched you and a dozen other…it was more than a baker’s dozen, leading members of the criminal bar acting out “12 Angry Men”. Why did you, why did you pick that play?

Litman: Well, for me, it has significance in a variety of ways. I chose it, a) I think the play is extraordinarily good. I also acted in it in Stuyvesant High School when I was a youngster 30 years ago. But I think the play was important now because it shows a group of men who are, who come to the jury room with, as all of us do, with new jurors, with the emotional bias, with the cultural prejudices, and whit personal hostilities and yet, they are able, despite the fact that they are all angry, to look carefully and calmly at the facts of the case. And arrive at a conclusion not that the young man who’s on trial is innocent, but that there might be reasonable doubt; That in spite of all of this prejudice and the hostility and the biases, they are able, as a group, as a society to talk among themselves, to put aside all of those difficult issues and to deal with the reality, the objective reality of the case. That’s a wonderful lesson to learn. In addition, it enabled our association to raise money for lawyers who represent the indigent so that we can create scholarships for them, so that they can better sharpen their skills and provide better services to the poor people they represent in court.

Heffner: What you’re saying is that the dialogue that you call for on a social level took place in that jury room.

Litman: I think it did, very much so.

Heffner: But, you know, when I saw it, Jack, I thought all over again, and I show the film to my students every year because I think it’s so magnificent…

Litman: It’s a great movie…

Heffner: …but I think it’s most misleading because you lose sight of the fact…you say, very quickly…”nobody said this young man was innocent”, you just said that there was a reasonable doubt. And that’s all that our friend Henry Fonda and you and the others manage to present. Most people, it seems to me, watching that come away with a very different notion. And it’s almost as if they were another lynch mob present at the beginning of the, of the play…one that’s about to lynch that young man accused without being concerned about a reasonable doubt. At the end of it, it’s just turned itself around, through leadership. It wasn’t dialogue, it was forced…there was one person in that jury who forced the discussion. Now where do you find the one person who can lead us in a nation at large?

Litman: We always have to find great men who can lead the populace. Everyone else is, unfortunately, concerned with the day to day living. That’s why we have elected representatives who have to take that moral leadership, who have to provide the moral tone for the nation. We can’t have everyone acting as President in this country, or as Senator or even as Mayor. They must lead this moral discussion.

Heffner: But don’t you find some difficulty when you pick up a case, one that clearly has a…in terms of the public’s attitude…a villain to it? And you become identified, as defending the “bad guy”…aren’t you diminishing to some extent the ability of the public at large to understand the lessons that you want us to consume?

Litman: No, because I act as a lightening rod in that…in, in those cases and I deflect that anger.

Heffner: What do you mean?

Litman: I deflect the anger from my client to me. And I’m…and I, I try and I think I am successful at times, in creating the human morality of this individual. This is not a beast I’m representing. He can, given the circumstances, be someone that all of us know. Someone that all of us may have raised, someone who may have raised us. Someone who lives next door to us, who has the same kind of human qualities and human foibles that all of us have. And when people can understand that, then I have raised a certain moral consciousness.

Heffner: That’s interesting. You talk of yourself as a “lightening rod”. Purposefully?

Litman: I think so purposefully, because as you pointed out in some cases there is an evident and sometimes overwhelming public hostility toward the individual accused and I think the defense attorney must stand between that public hostility and the accused to deflect that and inevitably act as a lightening rod so that the public, perhaps, despises him or her a little bit to provide some shelter for the individual accused.

Heffner: You’re still a young man, but you were for a few years a prosecutor, and for some years now, a criminal defense attorney. Do you find any larger understanding on the part of the public of the objective that you’re trying to achieve?

Litman: What’s curious is that it may well be, and you may well be right, that right now the public at large, in their living rooms, in their clubs, in their discussions on the street, are very pro-prosecution, very anti-the-individual who’s accused of crime. And yet, and yet, take those same people, bring them into the solemnity of the courtroom, let them see the patient, tediousness of justice, and they act wit the type of fairness that we believe all Americans have. And you would be very surprised, given what the public seems to say on the street, that they act very differently in the courtroom.

Heffner: It’s interesting that you say that because so often in the last decade when the press has gotten to jurors who have come to a verdict, and then are approached and asked for their opinions, I’ve been shocked, delighted, but shocked , at the…not just the civility, but he basic native intelligence that comes to express itself particularly well. Now I gather you’re saying the same thing. You’re expressing a faith still in the jury system.

Litman: I, I express a faith in the American public. They are good people, they are basically very fair-minded, and when they have the chance to get away from that bombarding of televisions with that inevitable message of crime, crime, rape, murder, murder, sports news, good night…and they get to something that is intricate, the understanding of human emotions, the understanding of human motivations, the reality of what a credibility contest is, that they display not only the high intelligence they have, but the basic human fairness they have.

Heffner: Is that what you mean by expressing your interest in the use of psychology and understanding of the way people think in the cases that you plead?

Litman: Well, that’s certainly part of it. And one must understand what it is that will titillate that bone of fairness, the good curiosity of a jury. You just can’t very dully present a case in court. You have to do it in a way that whets their appetite, that brings their curiosity to the fore, and that brings that innate goodness that they have to the fore in judging the facts of the case.

Heffner: Now, talking about goodness for a moment. Is all fair in love and war in the jury room, or the courtroom?

Litman: No, all is not fair in love and war, but you go pretty far because if you’re not zealous in representing your client then you shouldn’t be in a courtroom.

Heffner: Now, what, what does zealous mean?

Litman: Zealous means that you do everything you can within the bounds of law to represent your client, even if it should injure the state…even if it should injure the sate. This goes back to Lord Brone, who helped to defend Queen Caroline against accusations of adultery, and what he was going to do, was to bring out the evil conduct among other things, adulterous conduct by the King, to defend the Queen. And that would have put the “wrong”, so we were told, I wasn’t around and neither were you, back in 1802, in, in, in much difficulty. And everyone said at the time, “He has an obligation to do it, even if it should bring his country to ruin” because he must zealously represent the individual, or we don‘t need lawyers. We’re not going to need judges, we don’t need jurors. We should just have the police. Pick people up, arrest them and hang them.

Heffner: Now you and I aren’t really very much concerned about Kings and Queens and princes and authorities, but I think we probably are concerned about the human being, about the human beings who are victims. Does “anything go” pertain to the lot of the victim, if he or she has managed to survive?

Litman: No, anything doesn’t go…anything does not go. But, depending upon the facts of the case, a good criminal defense lawyer must prove what happened at the time of a particular event. For example, if the defense in an assault case, or in a homicide case, is one of self-defense inevitably the case will turn on what was happening between the accused and the injured or the deceased immediately before the act. Now, what was happening may be pleasant, or very typically it will be very unpleasant to the victim because people do not, for no reason, or unprovokedly assault somebody else. There’s usually a reason for it. And that reason must be explored in the courtroom.

Heffner: But you’ve, you’ve been known to go way beyond the moments before a crime, and back into the history of the victim.

Litman: I think if you would look carefully at the cases I try and speak to the jurors in the cases I try, you would come to a totally different conclusion. That is, the grist for the media through not for the reality of the way I try my cases in the courtroom. I never insult the intelligence of the jurors I deal with. I never defame the name of the accused…of the victim, rather, in the courtroom. That would be not only wrong to do, but it would be stupid to do because I would lose my credibility before the jury, and there’s no way the jury is going to accept any arguments I am going to put before them if I le my credibility. So I don’t do that, despite what people may think. I don’t want to get into specific cases, but that last case I tried, the relationship between the deceased and the defendant was brought out by the prosecution witnesses when they got out on the witness stand.

Heffner: Jack, that’s when I get a sign to cut…obviously we have to come back some other time to talk about his in more specifics, if you will. Thank you so much for joining me today.

Litman: It will be a pleasure. Thank you for having me, Richard.

Heffner: And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you care to share your thoughts about today’s program, today’s extraordinary guest, please write to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts send $2.00 in check or money order. Meanwhile, as another old friend used to say, “Good night and good luck”.

Continuing production of this series has generously been made possible by grants from: The Rosalind P. Walter Foundation; The M. Weiner Foundation of New Jersey; The Mediators and Richard and Gloria Manney; The Edythe and Dean Dowling Foundation; The New York Times Company Foundation; The Richard Lounsbery Foundation; and, from the corporate community, Mutual of America.

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