Post-Soviet Ukraine's second president has turned to high-profile U.S. criminal defense lawyer Alan Dershowitz for help.
For decades now, clients charged with serious crimes have turned to high-profile U.S. criminal defense lawyer Alan Dershowitz for help.
Dershowitz, a 72-year-old Harvard Law School professor, has been hired by former President Leonid Kuchma, who is also 72, to get him exonerated of charges that he exceeded his authority as president in giving orders that led to the Sept. 16, 2000 murder of journalist Georgiy Gongadze.
Dershowitz, besides being a noted legal scholar, has represented many high-profile clients. He was part of the legal defense team of former American football star O.J. Simpson, acquitted in 1995 of the murder of his ex-wife, Nicole Brown Simpson, and Ronald Goldman.
In an interview with the Kyiv Post, Dershowitz explains how and why he will defend Kuchma. His strategy appears to rest, for the moment, on challenging prosecutors’ attempts to prove the authenticity of secretly made recordings of Kuchma by former presidential body guard Mykola Melnychenko.
Portions of the hundreds of hours of tapes, made in 1999 and 2000, seem to implicate Kuchma in the Gongadze murder.
Kyiv Post: How did you get involved in the case?
Alan Dershowitz: I received a phone call from a former student of mine at Harvard Law School, who told me about the case. I then read a lot about it online and familiarized myself with the case. The decision to bring me into the case was made by President Leonid Kuchma. I met with him and presented my approach to the case. He presented me with his.
O.J. Simpson (R) talks with two of his attorneys in court in 1995 during his murder trial in Los Angeles that ended in Simpson’s acquittal. U.S. lawyer Alan Dershowitz was part of Simpson’s legal team and has now been retained by ex-Ukrainian President Leonid Kuchma, who faces charges in the 2000 murder of journalist Georgiy Gongadze. (AFP)
The decision was made to have me proceed as a consultant, a strategist, somebody who has a lot of expertise on tape recordings and the science.
My interest over the years has been in the relationship between law and science. I’ve had about 15 murder cases in the United States, most involving scientific issues. I’ve won 13 of them, mostly by challenging the science.
I myself, many years ago, was a victim of a tampered tape. A young witness came to interview me and he had a tape recorder in a sock. He took the tape out with the scissors and scotch taped it very primitively. He changed my words around, taking out the word ‘not.’
Then he re-recorded over it and presented it to the prosecution. We sent it to the FBI [Federal Bureau of Investigation[. They determined it was a fake.
It was easy in those days, because they didn’t have digital. Today, it’s much harder to detect any kind of change.
But the senior investigator for the especially severe cases in Ukraine on Sept. 10, 2010 determined that it was likely that you couldn’t prove that [the Melnychenko tapes] was not a fake, and that there were strong evidences that they may have been doctored.
‘[The case] will be solved by journalists and historians.”
– Alan Dershowitz
KP: Your specific role will focus foremost on authenticity of the tapes?
AD: That’s one of my primary goals, to look at the authenticity of the tapes. I am also asked to provide overall strategic and tactical advice. I will be working closely with the Ukrainian lawyers.
Science is science. It’s the same in America and in Ukraine, and all over the world a requirement is to replicate any experiment. The prosecution claims they have new evidence [confirming the authenticity of the Melnychenko tapes.] That’s fine.
Then give us the materials and we will see if we can replicate it and come to the same conclusion with our world renowned experts. Unless and until it’s done, the case doesn’t have any scientific grounds. And the Constitution of Ukraine requires that all doubts be resolved against the prosecution and in favor of the defendant.
Moreover, there is always going to be great doubts in this case as for 10 years the conclusion has been that you can’t authenticate these tapes. What has suddenly happened to make them change their mind? There haven’t been any new scientific developments, or recordings, there were no new witnesses, or new technologies.
The only thing that happened is a change of personnel [at the prosecutor’s office.] This suggests the case is being decided not by the rule of law or the rules of science, but by the whims of individuals.
KP: Some say that in the first five years after the murder, while Kuchma was president, there was no real attempt to solve this case. Couldn’t this be expected if he is, indeed, guilty?
AD: Let’s move away from the first five years to the second five years. During the second five years you had a president who was antagonistic to Kuchma, and there was no proceeding.
KP: You know, that’s not what many people believe [that President Viktor Yushchenko was antagonistic to Kuchma.]
AD: OK, I am not an expert on that. But if you read the report done [by prosecutors] on Sept 10, 2010, it’s very, very professional. It’s not done by a politician. It’s done by a professional investigator.
And if you look at the reports done by Kyiv Research and Forensic Science Institute – this is the institute that is relied on by this very same prosecutor. [At issue is that] people may go to jail as the result of the reports.
Suddenly, they are saying we believe them when they agree with us, but we discount their findings when they don’t agree with us.
The prosecutors went shopping for experts. They didn’t like the experts that they usually use, so they went shopping for new experts. And when you go shopping, it’s a very big mall out there. You can find anything you want. They found experts who disagreed with their own experts.
Why should their new experts be given more credibility? Certainly there is always going to be a reasonable doubt.
KP: Are you saying it’s impossible to prove authenticity of a digital recording?
AD: Absolutely. Under the circumstances of this case, it’s absolutely impossible.
We don’t know how the original tapes were made. We’ve heard 15 different stories. We also know that the memory cards were not held properly in a chain of custody. They were offered for sale. And the man who was offered to buy them thought they weren’t authentic and wouldn’t buy them.
If you look at all the circumstances of how these tapes were obtained, no expert could tell you that in the context of this case there could be any certainty that the tapes are authentic.
There also are grave doubts of the legality on how they were obtained, and of course the Constitution of Ukraine says you cannot rely on the evidence that was obtained illegally. But we are focusing primarily on that fact that we do not believe that the tapes authentically replicate what was said by Kuchma.
Ukraine’s ex-President Leonid Kuchma gets out of a car as he arrives at the general prosecutor’s office in Kyiv on March 24. He is charged with exceeding his authority as president in giving orders that led to the Sept. 16, 2000 murder of journalist Georgiy Gongadze. (AFP)
And the report [prosecutors produced last year] notes that when you listen to the relevant portions [of the tapes] that have to do with the murder of the journalist, the conversations are of low quality. It’s impossible to hear the full conversation contents.
But when you listen to the recordings that are not relevant, statements are clear, complete. This gives rise to the likelihood that somebody tempered with the relevant parts.
KP: What’s your understanding: do the prosecutors have the copies of original tapes?
AD: They themselves don’t know whether or not some are originals or clones. We want to see everything they’ve shown to their experts.
We are entitled through world class experts who are relied on every day by the FBI, Ukrainian, French and British prosecutors and police, to try and replicate them. We are going to use them to replicate the experiment to see if it’s valid.
KP: You may have heard that Renat Kuzmin, deputy prosecutor general in charge of the case, said last week that they confirmed authenticity of a portions of the tapes relevant to the death of Gongadze as the result of fresh testing, and that the voices on the tapes are those of Verkhovna Rada speaker Volodymyr Lytvyn, Kuchma, and former Interior Minister Yuriy Kravchenko, who is now dead. Does the Kuchma defense know what studies is he talking about?
AD: No, and we expect shortly to see the new report. The most important question: is there any new evidence, or is there a new analysis of the old evidence. In this case we would like to do an even newer analysis, to see if we can replicate their conclusions using even better experts.
KP: Your plans also sound like expert shopping.
AD: If you do shopping, you should do shopping on both sides. You can’t let just one side do this. They shop, we shop. We will produce people who have credibility all over the world.
KP: International human right watchdogs say Ukraine’s legal system is unfair. Given this and the case’s importance, do you think a grand jury style hearing is warranted?
AD: We can’t propose the changes to the legal system. We are operating within the Ukrainian legal system. I am going to assume good faith and a very valid system.
It’s important that international lawyers be involved. It’s a trend we are seeing more and more. For example, in [Russian former tycoon Mikhail] Khodorkovsky case there are American lawyers. Your former prime minister [Yulia Tymoshenko] also hired an American law firm. I think we will see a trend towards more foreign lawyers.
There are ‘Doctors Without Borders.’ In the future we will see ‘Lawyers Without Borders.’
KP: Are you really protecting someone who is innocent here? Kuchma doesn’t have the best reputation in this country, neither do other former presidents in Ukraine, a nation notorious for corrupt leadership.
AD: It’s in the nature of things that when you are a president, particularly an early president in a young democracy, there would be all kinds of questions. But one thing I strongly oppose is the criminalization of political differences. When you don’t like somebody’s politics, you charge them with crime.
KP: But this is exactly what many say Kuchma did by launching criminal prosecution against Yulia Tymoshenko the in early 2000s when she was deputy prime minister.
AD: I am generally not happy with political figures being put on trial. I don’t know enough about that case, but I think that trend is very dangerous one for the democracy. In Ukraine, using these allegations the government is trying to prove that it’s fair, that they went not only after the former prime minister, but after Kuchma as well.
KP: Kuchma in the past suggested that he was set up – first hinting it could have been Russia, more recently pointing at the U.S. Does he believe he was set up?
AD: This is not relevant to what happened. It’s relevant to what didn’t happen. What didn’t happen is that Kuchma didn’t order the killing of a journalist. That’s the issue of this case, what the prosecution needs to prove beyond reasonable doubt. What did happen in this case. That’s for journalists and for historians [to find out].
KP: Many believe it’s crucial to investigate not only the tapes, but the whole case in its entirety. In the first couple of years after the body of Gongadze was found, for example, authorities first denied it was his body, then they said it was his body, and later they said they found the murderers – two dead convicts nicknamed “Cyclops” and “Sailor Boy.” There were so many different stories and explanations. And it all looks to an average person and journalist as a cover-up was being waged.
AD: This is for political figures and historians to go back in time and find out what happened between 2001 and 2005. As for the law, we have to deal with what they have charged Kuchma with. And I am confident [their case against him] cannot be proven beyond doubt.
KP: Isn’t it vital to establish the truth in this case, and Kuchma’s role, to hold top officials accountable? In recent weeks, former Prosecutor General Svyatoslav Piskun, for example, suggested that there were orders from Kuchma to fire him when he first arrested Oleksiy Pukach, the former police general who allegedly admits to murdering Gongadze upon orders from higher officials.
AD: That’s not what President Kuchma is charged with. It may be interesting history and the historians will have to dispute whether this happened. If he were charged with it, we would have to investigate it thoroughly. The charge is simply based on tape recordings and alleged testimony of Pukach.
And that testimony is very questionable in terms of the circumstances under which it was made and what he expects to get in return. You have your job to do. I have a job to do. We have two different jobs.
KP: You challenge Pukach’s testimony?
AD: I don’t accept it. We have reasons that will come out later. I am not free to disclose them now. We absolutely and categorically reject Pukach’s testimony. I think the prosecution has some doubts too, as otherwise they would put the tapes aside.
KP: Wouldn’t it strengthen the defense case if you could show that someone else could’ve been behind setting this all up?
AD: There used to be a great television detective program in America called Perry Mason. At the end of the show, lawyer Perry Mason not only proved that his client didn’t do it, but he always pointed the finger and said: “There is the real murderer!” That’s fiction, television, the movies!
In real life, you decide the case based on evidence you have. Obviously, if we get new information that enables us to point fingers, we will do it. But we have no obligation.
KP: How much are you getting paid for taking part in this case?
AD: As you know it’s improper for a lawyer to disclose his fees. But in general, I have three kinds of fees. Half of my cases I do pro bono, as my clients cannot afford to pay. Around 25 percent of my clients pay full fee, and 25 percent of my clients pay what they can pay. I charge Kuchma my regular full fee.
KP: Have you ever been involved in a case like this? Don’t you think that it would make a great spy novel?
AD: It would make a great book. This is a fascinating story of intrigue with international implications and grave implications to the rule of law.
KP: If you do decide to write a book about this case, how will it end?
AD: If I could write an ending, it would be a very boring one. The ending would be: The prosecution decided to drop the case without a trial. In that respect, it will not be a very good book, because the truth here is a little boring. There is no case.
KP: Do you think this case will ever be solved?
AD: It will be solved by journalists and historians. It seems to me that the case is now so old, 11 years old, that it’s very unlikely it will be solved by a legal system. The legal system requires fresh, authenticated, legally admissible evidence beyond the reasonable doubt. That’s a very high standard to me.
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