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4.2.12
WC: 191694

not guilty of the specific misdeed of which he is being accused, but he is guilty of a similar misdemeanor of which you know nothing and of which you do not accuse him. He therefore quite truly denies his guilt in the one case, but in doing so betrays his sense of guilt with regard to the other. The adult neurotic behaves in this and in many other ways just as the child does. People of this kind are often to be met, and it is indeed a question whether your technique will succeed in distinguishing such self-accused persons from those who are really guilty.

In addition to citing Freud and dozens of other psychological sources, I also invoked my favorite novelist, Dostoevski, noting that in the Brothers Karamazov:

“the author describes how Ivan—the brother who had desired death of the father but had not perpetrated the act—manifests all the traditional symptoms of guilt described by Wigmore, whereas the actual murderer reacts in a cool dispassionate way, consistent—according to Wigmore—with innocence.”

Judge Bazelon approved of my somewhat sophomoric display of erudition, so long as at least one other judge agreed to reverse the conviction and order a new trial with a proper instruction on flight and guilt. 18

Judge Fahey did agree, while writing a short concurrence. Judge Burger wrote a scathing dissent—arguing that our proposed instruction “may be appropriate to a philosophical interchange between judges, lawyers and experts in psychology…but was unnecessary to a jury.” Judge Bazelon assured me that Burger’s dissent “proves we’re right.”

All in all the Bazelon clerkship proved to be a turning point in my life. He helped shape me into the person I have become. He influenced me as a lawyer, teacher, writer, public intellectual and as a liberal Jew. His highest praise for any person was that he or she “is a mensch.” I have aspired to that accolade. When Judge Bazelon retired in 1985, I wrote the following about his contributions to our nation:

David Bazelon is certainly not a household name to most Americans. Yet Judge Bazelon—who just retired after thirty six years of distinguished service on the US Court of Appeals for the District of Columbia—has been your conscience in Washington since 1949.

No single judge—whether on the Supreme Court, the lower federal courts or the state courts—has had a more profound impact on the law’s sensitivity to human needs.

18 The new instructions were to follow these principles:

“When evidence of flight has been introduced into a case, in my opinion the trial court should, if requested, explain to the jury, in appropriate language, that flight does not necessarily reflect feelings of guilt, and that feelings of guilt, which are present in many innocent people, do not necessarily reflect actual guilt. This explanation may help the jury to understand and follow the instruction which should then be given, that they are not to presume guilt from flight; that they may, but need not, consider flight as one circumstance tending to show feelings of guilt; and that they may, but need not, consider feelings of guilt as evidence tending to show actual guilt.”

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