A Tragedy In Two Acts: Marcus Einfeld And Teresa Brennan

By Fiona Harari

This was not the ending either of them expected. Marcus Einfeld, former Federal Court judge and human rights champion, and his old friend Teresa Brennan, an exuberant, sometimes controversial US-based academic, had each spent years establishing demanding careers and international reputations, to create two lives that, on paper at least, exuded success. Then Einfeld was caught speeding. But rather than pay a small fine, the former judge told a court that Brennan had been driving his car. In reality she had been dead for three years. Through a chain of events that at times seemed exceedingly unlikely, Einfeld's lie was exposed, with once unimaginable consequences. His world, and virtually every honour he had earned, rapidly disappeared. And his old friend Brennan, who had died in suspicious circumstances, was suddenly, posthumously, attracting attention for all the wrong reasons. This is the remarkable story of two outstanding Australians whose lives have been lived large, and who, ultimately, have been bound by tragedy.

• Language: English
• Publisher: Melbourne University Publishing Ltd
• Release date: Sep 1, 2011
• ISBN: 9780522860467

Fiona Harari

Fiona Harari is an award-winning journalist, and the author of A Tragedy in Two Acts: Marcus Einfeld and Teresa Brennan.

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Acknowledgements

Many people have been tremendously helpful in the creation of this book and I am grateful to them all. Marcus Einfeld and Teresa Brennan’s worlds have encompassed multiple continents and my thanks go to everyone, in more than a dozen countries, who spoke to me—friends, relatives, colleagues and associates—for their candor. Thanks, too, to the countless librarians and archivists in Australia and the US who happily stepped in to make the complicated job of researching this book so much easier. Many others have been extremely generous with their time and advice. I am very fortunate to have encountered an abundance of warm, giving and thoughtful people as this book took shape.

I am eternally grateful to my parents for supporting my dream to become a journalist all those years ago. And I thank my family for their love, for caring about this book, and for always listening to my stories.

Prologue

Act One

1.56 a.m., Tuesday 10 December 2002

Deerfield Beach, Florida

It is a black night near Boca Raton, a city of 86,000 on the east coast of Florida. December is mostly dry and you will rarely see a night like this. Fierce and mostly unrelenting, a vicious storm has descended on the seaside community of Deerfield Beach, pounding the coast as if in a rage and inundating the empty streets.

This is not a time you would expect to find Teresa Brennan out alone. But she is, walking on a dimly lit road, in the empty hours between midnight and dawn, with nothing to protect her from the deluge. Her presence on this darkened residential stretch, only a block or so from her newly rented apartment, is a mystery, even as the rain eases briefly. She has no reason to be outside at this terrible time and no obvious destination.

At fifty, Brennan, a tall, exuberant woman once described by the New York Times as a red-haired Diane Keaton look-alike, appears to be at her professional peak. A deep thinker with a low, sexy voice, and a dogged insistence on loyalty, she has built a life that, on paper at least, exudes success: a doctorate in social and political science from the University of Cambridge, visiting professorships at Harvard and Brandeis universities, five highly regarded and influential books. An internationally respected feminist scholar who has turned her attention to everything from globalisation to psychoanalysis, Brennan has used her intellect to become a noted Australian export. For thirty years her powerful, contentious thoughts have taken her around the world, to Washington, Cambridge, New York and now Florida, where for months she has been occupied with writing her new book. The Transmission of Affect will argue that the emotions and energies of one person can be absorbed directly by another. It is an ambitious project combining elements of philosophy and psychoanalysis, two of her favourite subjects. Apart from some tinkering with one chapter she has all but completed the manuscript and, following many frenetic months teaching and writing, the end of term is imminent.

This ought to be a good time for Brennan, a generous, eccentric woman with a liking for fine clothes and champagne. In a few days she will be off to her new home in the Bahamas, a beloved spot where she imagines one day gathering her colleagues and friends and setting up a community of thinkers in paradise. She has just secured the first step in this dream, buying a house at Eleuthera, a small, sandy island a short flight from Boca Raton. Her teenage foster daughter, Sangi, a young Tibetan woman Brennan has been sponsoring for several years, is already at the island home waiting for her. And they are expecting company. One of Brennan’s old friends from Sydney, Marcus Einfeld, a distinguished lawyer and human rights activist, has contacted her. He is heading towards the Caribbean in the next month or two and is planning a visit.

At such a busy and productive time, Teresa Brennan might have been expected to have retired for the night, wearily content. Instead, inexplicably, she is up, and out in the middle of this terrible storm. Alone on the street just before 2 a.m., she is still dressed in the expensive blue silk shirt she wore to work the day before, carrying nothing to protect her from the storm, and her handbag is fully open. Inside are three packs of cigarettes; she is a heavy smoker. She has left open the front door to the small apartment she is renting from a student, and all the lights inside plus her computer are on. Her overdue rental car is out the front, still full of the shopping she bought earlier in the day but has yet to take inside.

Her phone records will later show that in the previous few hours she has received several calls from Florida Atlantic University (FAU), a sunny, far-from-Ivy-League campus where she has formed the nation’s first doctoral program for public intellectuals. While acclaimed for her work in that role, even here she has still managed to attract the sort of controversy that has dogged her throughout her career and followed her around the world.

Brennan is a woman both ardent and outspoken. Some adore her. Others find her very difficult. Most agree she is high maintenance. In thirty years in academia she has acquired acclaim for her intellectual achievements and both support and scorn for her direct style. Beneath her academic demeanour there is a wildness that can be disconcerting; she has been known to take drugs while walking down the street and she seems to think nothing of yelling at passers-by. She is not always like this, of course. There is a charming, charismatic side that is evident in the wide circle of friends she has amassed around the world. Yet along the way to her life in Florida she has also accumulated a litany of scars, physical and emotional. She was brutally bashed in Washington in 1981 and endured a difficult year and a half being stalked, first in Australia in the late 1970s, and even when she moved to England.

Recently something has disturbed her again. On Sunday night, just over twenty-four hours earlier, she made an anxious call to her lawyer, Maria Sachs: she was worried and needed to see her. Sachs, busy with her family, could not meet her immediately. Instead she asked her friend and client to come by her office in the next few days, but she never did.

And now here Brennan is, as rain soaks this coastal section of Florida, walking two blocks away from her apartment in the middle of the night. She crosses SE 2nd Avenue, a quiet, green suburban thoroughfare, and suddenly a pick-up truck, or possibly an SUV—police will never be sure—speeds towards her and throws her to the ground. The force of the impact knocks almost every bit of life out of her.

From the first floor of a neighbouring apartment block a young man hears the terrible thud. From his window he can see Brennan’s comatose body splayed across the nature strip. She is still breathing but does not move. The vehicle is gone. The man calls paramedics. Ten minutes after the accident they arrive and take Brennan, immobile but garbling, to North Broward Trauma Centre. She falls into a coma for fifty-five days and never regains consciousness.

On 3 February 2003, after lingering in a shadow of nothingness for two months, she is pronounced dead—at almost the exact age at which she had long said she would die.

Act Two

Friday 20 March 2009

Long Bay jail, Sydney

The door closes on Marcus Einfeld with a terrifying finality. In an instant, he has lost his freedom. After a long professional life festooned with awards and acclamation for his work as a lawyer and human rights activist, he has just assumed a new title. Today he has become the first Australian superior court judge to be jailed.

Einfeld’s fall has been dramatic. He has lost or will soon lose most of the foundations of his vast public profile: his title of Queen’s Counsel, his Order of Australia award, his ability to practise law, among many humiliations. In jail for the next 729 days, for possibly the first time in his life he will not have enough to do and his active mind will be subjected to an idleness he has never known.

Over the past two and a half years, since he was first publicly accused of lying, Einfeld has experienced every miserable sensation that comes with being a tall poppy caught acting unlawfully—shame, infamy, dishonour—and every excruciating detail has become public. He has been parodied by comedians, hounded down the street by media scrums, heckled by a disgruntled litigant who seemed almost to salivate with delight as the former Federal Court judge headed for his own day in court, this time as the accused.

You need only look at Einfeld to know how far he has fallen. He used to stand tall and proud, a big man whose booming, theatrical voice added to his lofty reputation. Now he looks pummelled, grey, his once carefully coiffed hair dishevelled, his eyes heavy. He has become a dismal shadow of a powerful person, hunched over, sometimes wearing sunglasses to avoid eye contact, as though even he cannot quite believe the mess that has descended upon him.

Success had been such a consistent part of his public life that he did not sense his undoing until it was too late, displaying extraordinary hubris and arrogance even as it became clear that he had been found lying in court. In a career spanning almost fifty years, he had notched up so many achievements. Who would doubt he would have anything but a rarefied retirement? But then he was caught out, exposed for having used his friend as a false alibi for a relatively minor traffic offence. He gave sworn evidence that Florida-based professor Teresa Brennan had been driving his car at the time it was photographed speeding in Sydney, when he knew that his old friend had already been dead for three years.

The resulting crimes to which he pleaded guilty—perjury and intending to pervert the course of justice—do not ordinarily warrant a stint in protective custody. But it is for his safety that he is headed there, inside the walls of Long Bay’s Special Purpose Centre, whose administrative-sounding name belies its actual identity as the jail’s hard-core holding bay. This is the first of precious few spaces that Einfeld, a prisoner of the state and a victim of his own fabrications, will know for the next two years.

As he headed for the Supreme Court this morning, awaiting the moment he would be sentenced by a former peer, Einfeld’s bags were packed and he was prepared as well as he thought he could be for any verdict. ‘Marcus Einfeld, stand up’, Justice Bruce James had directed in those final minutes of his two-hour-long reading, much of which had been spent detailing the former judge’s dishonesty and how it had all unfolded. Einfeld rose obediently, and, ordered to stand like countless other prisoners before him, he was completely exposed. As the judge pronounced his sentence—fourteen months’ jail without parole for perjury, for having claimed under oath that he was not driving his car, and fifteen months, also without parole, for perverting the course of justice—Einfeld stumbled slightly and grabbed the dock. At that moment, every honour he had ever received, all those decades of hard work, seemed to vanish. So, too, did the imperiousness that had been a trademark of his proud public persona. With parole two long years away, he will not know freedom again before he is seventy-two.

Marcus Einfeld spent years championing the causes of the underdog. Helping them had often entailed visits to prisons—in Australia, in the former Soviet Union, in countless pits of hopelessness. He had always done so knowing he could leave when visiting hours were over, though there had still been a heavy sense of foreboding as he entered the prison grounds.

‘There is a terrible feeling when that gate shuts behind you’, he told an ABC interviewer more than two decades ago, ‘even though I know that I am going to be allowed out half an hour later or two hours later’; a feeling, he said, ‘like the world is virtually coming to an end, that you have no hope’.

In that same revealing interview, he was asked about the effect of suffering on those he had seen imprisoned. ‘It is incredible to meet such people and find that they survived the experience. I have said publicly on many occasions I wish I could be as confident that I would have emerged in the way they have emerged.’

~

This is a story of secrets and lies. Not just the perjury conviction that has ended one man’s glory-filled career, but the questions sprinkled through a second life, and the ripple effects that continue to touch those who know or knew Marcus Einfeld and Teresa Brennan. It is a story of two lives lived large, loud and often compartmentalised so that even now, years after Brennan’s death and the end of her friendship with the former Australian judge, secrets remain.

Marcus Einfeld has been confined to the dismal reality of Long Bay jail’s Special Purpose Centre for eight months when I write to him in November 2009 seeking an interview. Nothing has been heard from him publicly since he was removed from society earlier in the year. Although his strong record on human rights still stands, even that seems to have been forgotten in the media madness, and sometimes schadenfreude, that has accompanied his unseemly fall. Where once he was almost universally feted in public, he is now the subject of glib asides, and his surname has entered the vernacular: ‘doing an Einfeld’ describing one who avoids a fine by claiming someone else was in charge of their vehicle.

By March 2010, after a sustained and intensive period of public scrutiny, he has entered a stage of media neglect. Then, on the anniversary of his jailing, and four months after I post my request, Einfeld’s reply arrives. Handwritten on prison-issued paper, his letter is neat and polite. Einfeld explains the lengthy delay in responding, saying that my letter had only reached him recently. (It had been posted to Long Bay, but he had since been moved to a lower-security facility at Silverwater.) Strangely, he neither accepts nor rejects an interview outright but seems to waver between paragraphs. He hints at rejection when he writes of his ‘extreme distrust of journalists and of the benefits of contact with them and the media generally at this time. So much has been published about me that is utterly false. So much more has been sensationalist only’. Then, rather than specifically ruling out an interview, he says he cannot verify my work as he has no access to the internet. ‘Many journalists have written to me about their genuineness and expertise which I have not been able to verify.’ When he might have signed off with a no-and-thanks-for-the-offer, he instead hints at a possible future meeting. We cannot liaise further until his release, ‘which I hope will be soon. At that time it might be possible to take this matter further although I should inform you that I am writing myself at this time’.

Months pass and there are no signs of other interviews nor of his own mooted book. In the meantime his appeal is heard, fails, and he remains in Silverwater. Several more letters follow my first, but this time he does not reply. Then in August 2010, nine months on, Einfeld allows the second eldest of his four children, his middle-aged son Daniel, to talk. Perhaps Marcus Einfeld’s voice might again be heard, albeit second-hand.

Daniel Einfeld is as polite as his father, but he ultimately declines an interview, believing that Teresa Brennan has no part in his father’s story. I do not hear from Marcus Einfeld again.

The former judge’s closest relatives seem to have known nothing about Teresa Brennan before August 2006 and, despite extensive requests, the family has declined to be interviewed for this book. But while the Einfelds knew nothing of the Florida-based academic, Brennan’s family had known all about the human rights activist for decades.

As friends, Einfeld and Brennan shared many similarities: grandiosity, controversial and charismatic personalities and a knack for attracting attention. Now the fame that tagged him for so long has turned to infamy; the wider public attention that she sought for much of her life has only really found her, back home at least, posthumously. Although they lived essentially separate lives, they have become inextricably linked—in the public consciousness and on the public record—as two smart, successful Australians with remarkable lives shaped by exceptional careers. By now they ought to have been looking back with pride at their many achievements. Instead he has been jailed and denied almost every privilege he ever earned, and she is dead. Ultimately they have been bound by tragedy.

Chapter One

He is clearly the emperor.

Teresa Brennan’s tarot-card reading of Marcus Einfeld

Marcus

For most of his seventy-plus years, Marcus Einfeld has lived within a small area of Sydney’s eastern suburbs, where the signs of his family’s success are frequently visible. A local private preschool is named after a family member; Syd Einfeld Drive, the short bypass that takes traffic around the busy shopping hub at Bondi Junction, honours his late father; and at the entrance to the NSW Jewish War Memorial building in inner Sydney’s Darlinghurst, past the foundation stone laid by Syd Einfeld, a large bronze plaque marks the Einfeld Foyer. It is a small area, not much larger than the inside of a goods lift, but its size belies its significance. Named in memory of Rev Marcus Einfeld, minister of Sydney’s Great Synagogue in the early 1900s, it is a prominent tribute ‘of esteem and affection’, a notable marker in a community that takes time and pride in honouring its most community-minded members.

Rev Marcus Einfeld was a big man with a booming voice—features that would replicate themselves in his grandson—and he set the first marker in his family’s notable path through Sydney’s Jewish, and later legal, political and judicial circles after arriving from London in 1909. As cantor at the largest synagogue in New South Wales, he spent twenty-eight years officiating, his voice described as ‘suggestive of Caruso’, at Jewish communal events, and he was actively involved in almost every one of his community’s organisations in that time. For many years he was also the only person qualified to perform Jewish circumcisions in the state, an achievement that prompted one publication to note reverentially that Rev Einfeld had ‘left his mark’ on many young Australians.

Rev Einfeld’s sense of communal responsibility was instilled in his seven children, several of whom would become well known for their work with the NSW Jewish Board of Deputies and with the establishment of Jewish schools in Sydney. But of all of Rev Marcus’s offspring, the best known to the wider community was Syd. Arriving in the world just weeks after his parents had docked from London, Syd Einfeld was the first Australian-born member of the family and was named after his place of birth, appropriate given the extent of his future involvement with his home town. A passionate humanist, he would become a well-loved figure within the Australian Labor Party. As campaign director for the feminist activist Jessie Street in her close but failed bid to win a seat in federal parliament in 1946, he famously plastered her name over many of the road signs in the electorate so that each one became ‘Jessie Street’. While that campaign was ultimately unsuccessful, Syd himself later became a member of both federal and NSW parliaments, a minister in Neville Wran’s government and a champion of consumer rights. Having also a strong humanitarian streak that transcended politics, he served for twenty-five years with aid organisation Austcare.

In a 1988 interview, seven years before Syd died, his son Marcus described his father as ‘a fighter for rights and for decency and for honourable behaviour and for a recognition that many people are wronged in this community’. He said: ‘I learned a great deal from him—I think more than any other single person that I know of’.

Syd was a peacemaker, persuasive and effective. He exerted tremendous pressure on the federal government to allow Holocaust survivors to come to Australia after World War II. He would often be dockside welcoming traumatised refugees as their boats arrived in Sydney. On one occasion he encountered a teenage boy, Albert Halm, who had miraculously survived to reach Australia but had lost all his family. Syd took him into his home and raised him, with his own children, to adulthood.

Decades on, many Australians still remember Syd Einfeld gratefully. ‘We always knew that he was one of the people responsible for allowing Holocaust survivors in’, says Mark Spigelman, an acclaimed medical researcher and visiting professor at Jerusalem, Tel Aviv and London universities. As a child survivor, he and his family, including his brother James Spigelman, the future chief justice of New South Wales, had found refuge at war’s end in Sydney. Not long after arriving, the Spigelmans were still adjusting to the safety and openness of Australian postwar life when they went to a