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4.2.12
WC: 191694

Opinions 1962-1963
Alan M. Dershowitz, Law Clerk”

It is a treasured possession. A year in the life of! And what a year it was.

My first case involved a man named “Daniel Jackson Oliver Wendell Holmes Morgan”—Quite a
name! Any lawyer would be proud to have been named after. “Daniel Webster,” “Andrew
Jackson” and “Oliver Wendell Holmes.” That’s what Mr. Morgan thought too. The only
problem was he wasn’t a lawyer and that wasn’t his name! He was an uneducated, but slick,
African American man whose parents were sharecroppers and who made his way to the District
of Columbia, where he apparently bought a dead lawyer’s bar certificate in a junk shop. He
started to practice law, and he did extremely well, beating real prosecutors in several cases
involving street crimes. For more than a year, he went to court and argued to juries and judges.
His reputation spread in the downtown area, as he kept winning difficult cases. Ultimately the
feds checked him out, discovered that despite his name, he wasn’t a lawyer, and charged him with
multiple counts of fraud, forgery, impersonating an officer of the court and false pretenses. He
represented himself at trial, was convicted and sentenced to 3 to 10 years in prison.

The court appointed a lawyer named Monroe Freedman to argue his appeal. Judge Bazelon
invited me to watch the oral argument.

I was blown away by Freedman’s eloquence, erudition, command of the record and ability to
further his argument while responding to hard questions. I had participated in moot court appeals
as a law student, and I had done very well—even earning a job offer from one of the judges who
was a partner at a Jewish law firm. But this was a different league. I remember thinking “I want
to be like this guy,” and wondering whether I could ever be that good. The lawyer for the
prosecution was also quite good, though not up to Freedman’s high standards. He was an
African American named Charles Duncan, who, I later was told, was the son of the singer Todd
Duncan, who had played “Porgy” in the original Broadway run of the Gershwin opera.

Following the argument, the judges conferred and unanimously decided to affirm the conviction.
I was upset, because Freedman had clearly “won” the argument and had certainly convinced me
that his client deserved a new trial, or at least a reduction in the sentence. I pleaded with Bazelon
to let me try to draft an opinion reversing the conviction. He said, “go ahead,” because he too
was somewhat sympathetic to the defendant. “But you must find a valid legal basis for reversal.
It’s not enough that the defendant’s lawyer was better than the government’s lawyer. Nor is it
enough that we think the defendant should get relief. There has to be a solid legal basis. Go
ahead and look for one.”

I searched and searched, but Freedman had mined every possible nugget from the sparse record
and to no avail. There was no plausible legal basis for reversal. I learned several important
lessons from this exercise in futility: there’s an enormous difference between winning an appellate
argument and reversing a conviction; there’s an equally significant difference between wanting to
see a conviction reversed and finding a valid basis for reversal; all the hard work in the world
cannot bring about a result if the facts and the law don’t justify it. (At least that’s what I believed
until such cases as Bush v. Gore, of which more later.)

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