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.
