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December 13, 2015 4:56 PM   Subscribe

Alan Dershowitz on the Defense (His Own) by Barry Meier [The New York Times]
Last month, demonstrators at Johns Hopkins University interrupted Alan M. Dershowitz as he was giving a fiery speech defending Israel. The disruption normally would not have fazed Mr. Dershowitz, a former Harvard Law School professor who thrives on controversy and relishes taking on opponents in and out of the courtroom. The protesters, however, were not challenging his Middle East politics. Instead, they held up a sign reading, “You Are Rape Culture.” Mr. Dershowitz knew what it meant. A decade ago, he had defended a friend, a money manager named Jeffrey E. Epstein, after authorities in Palm Beach, Fla., found evidence indicating that he was paying underage girls to give him sexual massages. The lawyer led a scorched-earth attack on the girls and, with a team of high-priced lawyers, cut a plea deal for Mr. Epstein that the local police said was too lenient.

Alan Dershowitz, From the Death Penalty to Roman Polanski: A Timeline [The New York Times]
Over a five-decade career, Mr. Dershowitz has represented some of America’s most prominent criminal defendants, including O.J. Simpson, Leona Helmsley, Mike Tyson and Claus von Bulow. “I never ask a client whether he did it or not,” Mr. Dershowitz once told Charlie Rose. “I don’t want the client to feel that he has to start his relationship with me by lying.”
- Prince Andrew and Alan Dershowitz Are Mentioned in Suit Alleging Sex With Minor. by Emma G. Fitzsimmons [The New York Times]
A court filing in a civil case in Florida last week included new allegations against Jeffrey E. Epstein, a businessman who pleaded guilty to soliciting prostitution, and two other high-profile men: a member of the British Royal family and an American lawyer. The motion filed in United States District Court in the Southern District of Florida alleges that Mr. Epstein forced a teenage girl to have sexual relations with several men, including Prince Andrew, Queen Elizabeth’s second son, and Alan M. Dershowitz, a professor emeritus at Harvard Law School. Both men have denied the allegations.
- My Response to the Charge That I Didn't Show 'Compassion' to a Woman Who Falsely Accused Me of Rape by Alan M. Dershowitz [Huffington Post]
“I am not asking for compassion, only fairness and an opportunity to prove my total innocence. No "political correctness" will stop me from doing everything reasonable within my power to prove she is lying about me. Would any of you do less if you were falsely accused of so heinous a crime?”
- A Nightmare of False Accusation That Could Happen to You by Alan M. Dershowitz [Wall Street Journal]
I now stand accused of crimes I did not commit, by an unnamed woman who I don’t know and never met. I am also being sued for defaming my accusers. I still have no opportunity to respond in court to the false charges, though I am now seeking to intervene in the lawsuit in which the accusation was filed. I have submitted a sworn statement denying the accusations with great specificity. The court has not yet decided whether to accept my motion.
- Alan Dershowitz tried to discredit girl who accused Jeffrey Epstein of rape. by Jon Swaine [The Guardian]
Alan Dershowitz, the Harvard University professor accused alongside Prince Andrew of having sexual relations with a teenage associate of their friend Jeffrey Epstein, was also involved in an effort to discredit a teenage girl who accused Epstein of rape. Dershowitz, who strongly denies the allegations about his own conduct, recruited private investigators to carry out inquiries on the girl while acting for Epstein’s defence team and sent police printed copies of her MySpace page, claiming it displayed a “fascination with marijuana”. The professor also suggested, in a letter obtained by the Guardian, that the girl may be pursuing Epstein, a wealthy banker, for his money, and that as a drama student, she was an expert in misleading people.
- The Fantasist by Philip Weiss [New York Magazine] Accused of paying underage girls for sex, superrich money manager Jeffrey Epstein is finding that living in a dream world is dangerous—even if you can pay for it.
Epstein mounted an aggressive counterinvestigation. Epstein’s friend Alan Dershowitz, the Harvard law professor, provided the police and the state attorney’s office with a dossier on a couple of the victims gleaned from their MySpace sites—showing alcohol and drug use and lewd comments. The police complained that private investigators were harassing the family of the 14-year-old girl before she was to appear before the grand jury in spring 2006. The police said that one girl had called another to say, “Those who help [Epstein] will be compensated and those who hurt him will be dealt with.”
posted by Fizz (80 comments total) 15 users marked this as a favorite
 
I tried to find as many articles as I could to provide as much context as I could for this story/issue. I am sure that I have missed some, please share any that you feel are relevant.
posted by Fizz at 4:58 PM on December 13, 2015


There's a complicated mess of accusation and insinuation here, and something about it doesn't sound right to me.
posted by Joe in Australia at 5:19 PM on December 13, 2015 [2 favorites]


There's a complicated mess of accusation and insinuation here, and something about it doesn't sound right to me.

A massive amount of political corruption in the background.
posted by Talez at 5:25 PM on December 13, 2015 [2 favorites]


We probably shouldn't trust his narrative, look how easily he can be swayed by money. Not to mention his close relationship with a convicted criminal!
posted by mandymanwasregistered at 5:25 PM on December 13, 2015 [20 favorites]


HA!
posted by Joseph Gurl at 5:27 PM on December 13, 2015


I feel like it's going to be hard for many people, myself included, to separate their feelings about this particular case from their previous feelings about Alan Dershowitz.
posted by ArbitraryAndCapricious at 5:31 PM on December 13, 2015 [16 favorites]


I've only read the Times article so I'm probably missing a lot of the backstory, but my takeaway (aside from a strong sense of overlapping corruption and privilege) was his palpable frustration at the rules changing. It used to be totally ok to help your buddy get off child sex charges by trashing the young women, and just a few years later it turns out that there is stigma attached to having done so.

He made a bad call and it looks like he is paying a reputational and professional price for that, which I am ok with.
posted by Dip Flash at 5:36 PM on December 13, 2015 [72 favorites]


Hit it right on the head ArbitraryAndcapricious. I dislike Alan Dershowitz as a human, but I find myself reading the various articles and the information seems to lead one to the conclusion that he has been falsely accused. I have no way of knowing whether this is true or not. There is an ugly pot of corruption and politics at the center of this story that muddles anything that might resemble the truth. I still dislike him as well as his legal tactics.
posted by Fizz at 5:38 PM on December 13, 2015 [1 favorite]


So in 2015 in the WSJ article Dershowitz refers to an "unnamed woman" defaming him, but is she the same woman he sent investigators to her door in 2005? If she was involved in the original plea deal he arranged so no other men would be charged how can he claim she is unknown to him? (There are several women alleging these crimes so I am not sure which ones he is referring to).
posted by saucysault at 5:39 PM on December 13, 2015


It used to be totally ok to help your buddy get off child sex charges by trashing the young women, and just a few years later it turns out that there is stigma attached to having done so.

As shitty a person Dershowitz can be and as fucked up as these allegations are, a corrupt prosecutor justifying a shitty plea bargain on a shitty jury pool that probably wouldn't convict him without ironclad evidence isn't any reason for a lawyer not to mount a vigorous and competent defense. That's entirely throwing the baby out with the bathwater.
posted by Talez at 5:47 PM on December 13, 2015 [9 favorites]


If you want to go down the rabbit hole with this story, the basic idea that emerges is that Epstein's former girlfriend Ghislaine Maxwell would help him recruit teenaged girls, he would "share" these girl with his rich/powerful buddies as a sort of protection. Because now they all were implicated. There is also the question of wtf Epstein made his money and why Les Wexner is so beholden to him (see above).
posted by mandymanwasregistered at 5:52 PM on December 13, 2015 [3 favorites]


This post from Above the Law gives you more details than the NY Times piece does: Alan Dershowitz Accuses Former Federal Judge Of Billion-Dollar Extortion Scheme
posted by mandymanwasregistered at 5:55 PM on December 13, 2015 [3 favorites]


a corrupt prosecutor justifying a shitty plea bargain on a shitty jury pool that probably wouldn't convict him without ironclad evidence isn't any reason for a lawyer not to mount a vigorous and competent defense.

But here's the thing - more and more people are saying that the duty to "a vigorous and competent defense" does not extend to borderline slander of victims via the "not guilty on account of the victim is a slut" defense. And frankly, that's the exact sort of defense that Dershowitz built his career on. So this does strike him deeply, by ripping away the thin veneer of "legal ethics" he's used to tell himself he's not a bad person.
posted by NoxAeternum at 6:09 PM on December 13, 2015 [23 favorites]


But here's the thing - more and more people are saying that the duty to "a vigorous and competent defense" does not extend to borderline slander of victims via the "not guilty on account of the victim is a slut" defense. And frankly, that's the exact sort of defense that Dershowitz built his career on. So this does strike him deeply, by ripping away the thin veneer of "legal ethics" he's used to tell himself he's not a bad person.

We have rape shield laws in (almost?) every jurisdiction in the United States that stop defense attorneys from using sexual histories to justify rape. We don't have pot shield laws that stop a lawyer from making you out to be a shitty and untrustworthy person for smoking pot. The legislature will legislate away what it feels is inappropriate and prejudicial. Yes, the jury pool is full of shitty people but that's not an attorney's concern. The attorney's concern is making sure the interests of their client are fully represented.

Defense attorneys are there to make sure the state doesn't use its immense resources to steamroll their defendant. If a person fails to be convicted or gets a light punishment the person at fault is the DA not the defense. That means shitty people get off on technicalities or because their defense lawyers do shitty (but legal) things to get them off. What's the Blackstone saying? "It is better that ten guilty persons escape than that one innocent suffer"?
posted by Talez at 6:16 PM on December 13, 2015 [15 favorites]


Also, if an attorney was obligated to only provide some form of merely nominal defense if the attorney believes someone is guilty (or worse, the state believes someone is guilty) then get me the fuck out of that country ASAP.
posted by Talez at 6:21 PM on December 13, 2015 [9 favorites]


if an attorney was obligated to only provide some form of merely nominal defense

I believe a defense can be ethical without being nominal. That's the expectation he failed to meet.
posted by mikelieman at 6:31 PM on December 13, 2015 [12 favorites]


[A few comments deleted. This is a super shitty story about a super shitty dude, if we're going to have a thread on it, it would be great not to jump right to the worst making-it-personal places the thread could go.]
posted by LobsterMitten (staff) at 6:31 PM on December 13, 2015 [4 favorites]


It seems to me that there are some things it is legal to do that are nonetheless deeply morally wrong. Dershowitz appears to have engaged in several of these.

That they were legal is not much of a defense--and the idea that a defense attorney has an obligation to use any tactic that is not affirmatively outlawed strikes me as a deeper mistake. Just as a corporation does not have a legal obligation to maximize shareholder value in every case no matter what the moral implications, a defense attorney is well within her rights to forgo some strategies that are deeply immoral without facing malpractice liability.
posted by anotherpanacea at 6:35 PM on December 13, 2015 [8 favorites]


I believe a defense can be ethical without being nominal. That's the expectation he failed to meet.

There's as wide gulf between "professional ethics" and "common decency" as there is between "factual guilt" and "can the government prove it".

Straight from the ABA model code:
EC 7-1 The duty of a lawyer, both to his client and to the legal system, is to represent his client zealously within the bounds of the law, which includes Disciplinary Rules and enforceable professional regulations. The professional responsibility of a lawyer derives from his membership in a profession which has the duty of assisting members of the public to secure and protect available legal rights and benefits. In our government of laws and not of men, each member of our society is entitled to have his conduct judged and regulated in accordance with the law; to seek any lawful objective through legally permissible means; and to present for adjudication any lawful claim, issue, or defense.
To do otherwise is letting the government get out of its obligation to prove a charge beyond all reasonable doubt.
posted by Talez at 6:39 PM on December 13, 2015 [12 favorites]


Just as a corporation does not have a legal obligation to maximize shareholder value in every case no matter what the moral implications, a defense attorney is well within her rights to forgo some strategies that are deeply immoral without facing malpractice liability.

That's a massive false equivalency. If you fail to maximize shareholder value you may forfeit some money. If you fail to mount a zealous defense your client may forfeit their freedom.
posted by Talez at 6:40 PM on December 13, 2015 [7 favorites]


It seems to me that there are some things it is legal to do that are nonetheless deeply morally wrong

The standard illustration of this for me that the law in Vichy France sent Jews to French concentration camps as part of the Final Solution.

Totally legal.

Totally immoral.
posted by mikelieman at 6:45 PM on December 13, 2015 [3 favorites]


If you can't defend your client without calling a witness a slut, you're doing it wrong.
posted by mikelieman at 6:46 PM on December 13, 2015 [14 favorites]


If you can't defend your client without calling the defendant a slut, you're doing it wrong.

You can't do that anyway in most jurisdictions because of rape shield laws. Both federal rules of evidence and Florida statute prohibit it. I believe the prejudicial trickery in this case was that she was a pot smoking hippie.
posted by Talez at 6:50 PM on December 13, 2015 [5 favorites]


You should really read the rest of the ABA code. Sure it's mostly about advertising and bookkeeping, but there's also this:

EC 7-10 The duty of a lawyer to represent his client with zeal does not militate against his concurrent obligation to treat with consideration all persons involved in the legal process and to avoid the infliction of needless harm.

Of course, even if lawyers do have a very lenient professional ethical code, that doesn't mean we can't still judge them from the perspective of ordinary people. The ABA professional responsibility code is what we consult when we have to decide if Dershowitz can be disbarred. The rest of the time, we're talking about morality. Writing up a list of rules and entitlements and calling it an "ethics" does not fully exhaust the human obligations that we have to each other.
posted by anotherpanacea at 6:53 PM on December 13, 2015 [26 favorites]


"It is better that ten guilty persons escape than that one innocent suffer"?

HA, that may be an accurate quotation but most unfortunate in this context. the principle I think you are pointing to is that it is better for ten guilty persons to escape than that one innocent be convicted. Innocents suffered, whether the guilty go free or not.

***
Of everything in all the articles, this is what is most viscerally upsetting, I think, because it is mainstream thinking by a human person - this throwaway line by Phillip Weiss:

"One of the accusers—a girl of 14—had put his age at 45, not in his fifties, and you could see why. His walk was youthful, and his face was ruddy with health."

this is, truly, a reasonable thing to write in a world that finds it reasonable to refer to 14- and 15- year-olds as "young women". No, she didn't guess his age wrong because he was so very youthful of gait and rosy of cheek. She picked a number in the middle of the very rough zone of Old Man that seemed probably right because she was FOURTEEN and kids can't tell the ages of well-preserved middle-aged men to the half-decade the way their admiring adult male peers can.
posted by queenofbithynia at 6:58 PM on December 13, 2015 [47 favorites]


this is, truly, a reasonable thing to write in a world that finds it reasonable to refer to 14- and 15- year-olds as "young women". No, she didn't guess his age wrong because he was so very youthful of gait and rosy of cheek. She picked a number in the middle of the very rough zone of Old Man that seemed probably right because she was FOURTEEN and kids can't tell the ages of well-preserved middle-aged men to the half-decade the way their admiring adult male peers can.

You are 100% correct. I believe that Epstein knew exactly what he was doing, got off lightly and that massive corruption on behalf of him in the political scene of Palm Beach 100% affected his plea bargain and punishment. I only argue that the (shitty person who is the) defense attorney isn't the whipping boy everyone is looking for.
posted by Talez at 7:04 PM on December 13, 2015 [1 favorite]


Of course, even if lawyers do have a very lenient professional ethical code, that doesn't mean we can't still judge them from the perspective of ordinary people. The ABA professional responsibility code is what we consult when we have to decide if Dershowitz can be disbarred. The rest of the time, we're talking about morality. Writing up a list of rules and entitlements and calling it an "ethics" does not fully exhaust the human obligations that we have to each other.

Defense attorneys attempt to discredit honest and credible witnesses all the time. Where do you draw the line? Do you want attorneys to stop instilling doubt where the witness is clearly correct? When the attorney knows that the witness is correct through admission by the defendant to counsel? This is why it's called a "zealous" defense. Needless harm is probing a married witness about a trip to the hotel with a hooker in a civil trial about a contract.
posted by Talez at 7:10 PM on December 13, 2015 [5 favorites]


This is not about Derhowitz's legal tactics. It is about whether he participated in statutory rape. Nothing about the former supports the latter. Reading the NYT article it seems like her accusation of Dershowitz is weak.
posted by BentFranklin at 7:11 PM on December 13, 2015 [2 favorites]


Of course, even if lawyers do have a very lenient professional ethical code, that doesn't mean we can't still judge them from the perspective of ordinary people. The ABA professional responsibility code is what we consult when we have to decide if Dershowitz can be disbarred. The rest of the time, we're talking about morality. Writing up a list of rules and entitlements and calling it an "ethics" does not fully exhaust the human obligations that we have to each other.

Yes, but in fact the code is not lenient. It is strict. It is strict in its requirement of zealous representation. It is not acceptable to half-ass it in defense of a bad person.

This is not a low standard of special professional ethics, but a high standard of general political morality.
posted by grobstein at 7:12 PM on December 13, 2015 [7 favorites]


Do you want attorneys to stop instilling doubt where the witness is clearly correct?

When it means trafficking in horrible stereotypes that harm society? You better believe it.
posted by NoxAeternum at 7:21 PM on December 13, 2015 [7 favorites]


To do otherwise is letting the government get out of its obligation to prove a charge beyond all reasonable doubt.

This seems very questionable to me.

I personally do not think that the fact that an accuser is a pot-smoking hippie can be the basis for reasonable doubt about whether or not the defendant raped the accuser (or possibly it can be but it would need a lot of scene-setting and that would work only in very specific circumstances). It does not seem to me to be true that the permissible introduction of irrelevancies about which the members of a jury can be expected to have negative associations is required to ensure that the government prove its charge beyond a reasonable doubt. No doubt "reasonable doubt" also has some technical sense (though it oughtn't be totally free-floating), but I don't think any such sense can really be helpful here.

I think one would be on a lot stronger ground to say that the prosecution in any given case is likely to use every trick in the book and several from other sources to get a "guilty" verdict and the defense ought to be no less shameless.
posted by kenko at 7:24 PM on December 13, 2015 [2 favorites]


I mean, the doubt that the fact that the accuser is a pot-smoking victim induces seems exactly as reasonable, to me, as the doubt that the fact that the accuser sure does get around induces. You're not allowed to induce doubt by adducing the latter fact; you are allowed to induce it by adducing the former. That doesn't make it more reasonable in the former case, it just makes it technically in-bounds.
posted by kenko at 7:27 PM on December 13, 2015 [1 favorite]


I think one would be on a lot stronger ground to say that the prosecution in any given case is likely to use every trick in the book and several from other sources to get a "guilty" verdict and the defense ought to be no less shameless.

Except the usual "every trick in the book" for the prosecution involve actual ethics violations like suborning perjury from witnesses that is recanted later or hiding exculpatory evidence from a defense attorney.
posted by Talez at 7:27 PM on December 13, 2015 [5 favorites]


Those are the tricks from other sources.
posted by kenko at 7:29 PM on December 13, 2015


In any case, I think one would be on exceptionally strong ground arguing that since the prosecutors cheat, the defense attorney shouldn't scruple to make tasteless but legal arguments! As long as the goal is defending defense attorneys!
posted by kenko at 7:30 PM on December 13, 2015


The problem with slut-shaming isn't that it depicts the complainant as unreliable; the problem is that it falsely implies the complainant consented. You would expect defense lawyers to raise all sorts of things that imply the complainant is unreliable; what they can't do is say "well, she had sex with those guys, she'd probably have agreed to have sex with this guy too.
posted by Joe in Australia at 7:35 PM on December 13, 2015 [8 favorites]


Dershowitz himself seems to have a view of what is "allowed" for lawyers that stops well short of breaking the law:

called the lawyers who had made the filing, Mr. Edwards and Mr. Cassell, “villains” who helped fabricate the claims against him.

Mr. Dershowitz said he would seek to have them disbarred, adding he had diary records and other information to show he was not at locations where Ms. Giuffre claimed they had met. “They’re prepared to lie, cheat and steal,” Mr. Dershowitz said in an interview on CNN in January.


Certainly the problem of what legal tactics are and are not allowed is a complex and ever-shifting one, but it is rather odd that people in this thread seem to be defending Dershowitz's actions on a basis which he himself doesn't seem to agree with. He clearly doesn't think that every (legal) trick in the book is acceptable, at least when he's the target.

The actual problem of the rape charge - which if I understand the linked articles correctly, is not yet an actual charge in court - seems to be a giant neon-lit example of "wait for more facts", as far as I can tell. Meaning facts more pertinent than whether the accuser likes to smoke pot or have sex.
posted by AdamCSnider at 7:36 PM on December 13, 2015 [4 favorites]


Defense attorneys are there to make sure the state doesn't use its immense resources to steamroll their defendant.

Agreed. But given the finances of over-worked US Attorneys or District Attorneys' offices, you don't see immense resources like you used to. In addition, bringing Dershowitz in as your defense lawyer with his scorched-earth approach is akin to bringing a flame-thrower to a knife fight.
posted by Ber at 7:42 PM on December 13, 2015 [1 favorite]


Missed the edit window - that first sentence should be "well short of 'anything that doesn't break the law'. Sorry.
posted by AdamCSnider at 7:43 PM on December 13, 2015


From the NYT article in the FPP:
Last month, demonstrators at Johns Hopkins University interrupted Alan M. Dershowitz as he was giving a fiery speech defending Israel. [...] The protesters, however, were not challenging his Middle East politics. Instead, they held up a sign reading, “You Are Rape Culture.”
This doesn't seem to be correct. The report in the John Hopkins Newsletter says that there were two walkouts, one of which was staged by Students for Justice in Palestine. I suspect the other group (the ostensibly feminist one) must also have been at least somewhat associated with SJP, because the petition they circulated accuses him of
Plagiarizing large portions of his book, “The Case for Israel” [...] Attacking any who disagree with the views expressed in The Case For Israel, stating when confronted that he has a “longstanding policy against debating Holocaust deniers, revisionists, trivializes or minimizers," effectively silencing discourse on his views.
Those aren't the concerns the NYT article mentions, but they were clearly in the forefront of the protesters' minds.
posted by Joe in Australia at 7:52 PM on December 13, 2015 [1 favorite]


Where do you draw the line? Do you want attorneys to stop instilling doubt where the witness is clearly correct?

Yes, actually. The job of a defence lawyer is to ensure the power of the state hasn't been abused. Discrediting honest witnesses isn't part of that remit.
posted by feckless fecal fear mongering at 11:14 PM on December 13, 2015 [8 favorites]


I mean, at some point, societally, we went from the view that defence lawyers need to keep the state honest to the view that they must get their clients off at all costs. That's wrong, in my opinion. We need to go back.
posted by feckless fecal fear mongering at 11:26 PM on December 13, 2015 [5 favorites]


"It is better that ten guilty persons escape than that one innocent suffer"?

So? Is an innocent suffering now? Was an innocent man harmed by the walkouts? Have the protesters broken any laws? Can you honestly argue that he should be immune to public criticism?

This seems to be more of the usual "The powerful and well-connected should be able to do whatever the hell they want and we should just accept it" bullshit that is endemic to America these days.
posted by happyroach at 11:49 PM on December 13, 2015 [5 favorites]


Is his own defense pieces Dershowitz makes it sound like these accusations came out of the wild blue yonder. I was all WTF? Then I read the wiki on Epstein. Oh.
posted by telstar at 1:34 AM on December 14, 2015 [2 favorites]


Yeah, I'll believe Dershy gives a damn about the abstract principle of every defendant deserving a competent and vigorous defense when I hear about the huge acquittal he won for a poor defendant.

Dude makes his bank defending the very rich, for whom the law is really quite a different thing and always comes with a pricetag attached so that one doesn't have to mingle with the riff raff in cell block A.

Has Dershowitz ever served pro bono in the defense of an impoverished defendant? Has he ever helped overturn the wrongful conviction of someone on death row?
posted by spitbull at 3:38 AM on December 14, 2015 [3 favorites]


Well, he claimed in 2014 that 60 per cent of his work was pro bono (here). This NY Times review of his autobiography also refers to his pro bono work.
posted by A Thousand Baited Hooks at 3:57 AM on December 14, 2015 [4 favorites]


There's a complicated mess of accusation and insinuation here, and something about it doesn't sound right to me

I know, right? That's supposed to be Dershowitz's schtick.
posted by flabdablet at 4:07 AM on December 14, 2015 [2 favorites]


Has Dershowitz ever served pro bono in the defense of an impoverished defendant? Has he ever helped overturn the wrongful conviction of someone on death row?
I googled for "alan dershowitz pro bono" and found "[he] defended numerous death row inmates pro bono"and "[he] saved two Arizona brothers from the death penalty, who worked — often pro bono — on behalf of battered women and dissidents around the world." I didn't go farther than that so I don't have more evidence for the claims.
posted by dfan at 4:16 AM on December 14, 2015 [6 favorites]


The ancient legal precept of what it good for the goose is good for the gander seems to apply here. I understand that he has had no problem weaponizing character assassination as a tactic to advance his case.
posted by humanfont at 4:54 AM on December 14, 2015 [2 favorites]


Yes, but in fact the code is not lenient. It is strict. It is strict in its requirement of zealous representation. It is not acceptable to half-ass it in defense of a bad person.

This is clearly not true. If it were, if most people accused of a crime got the "full-ass" treatment that Dershowitz supplies, then we would not have the highest incarceration rate in the world. The truth is that most people receiving a public defender are receiving very able representation (with the lawyer glut we're starting to see really high quality folks working in public defense) but they're still not supplying Dershowitzian "zeal." You need to be rich to get the "full-ass," especially the bespoke orthogonal plea deals.

All the lawyers and law professors I know are well aware of that. So it's striking that these propagandistic myths still circulate of "a nation ruled by laws and not men." We've been debunking these claims longer than most lawyers have been practicing. (Longer than any of them have been alive, if you include Anatole France.)
posted by anotherpanacea at 5:28 AM on December 14, 2015 [10 favorites]


I tend to immediately eye with suspicion anyone who cries "political correctness."
posted by The Underpants Monster at 5:53 AM on December 14, 2015 [9 favorites]


Correct me if I'm wrong here, but looking at the articles it would appear that when defending Epstein, Dershowitz didn't actually attempt to argue that Epstein hadn't raped the girls in question, but that the girls were Evil Pot Smoking Hippies and thus had it coming and that it would be horrible to send a fine upstanding businessman to prison just because he'd raped a few Evil Pot Smoking Hippies?

That sort of "zealous defense", basically trying to tear the victim to pieces so the jurors agree that while the defendant may have been technically guilty they shouldn't be punished becuase the victim wasn't worth protecting, seems like it ought to be outlawed whether the attempt to tear down the victim is based on sexual history or drug history or political affiliation.

We see the same pattern, black male version, repeated endlessly any time a cop kills a black boy. The victim was a "thug", the victim wasn't a "perfect angel", so therefore the victim had it coming and despite the cop not denying that he outright murdered someone he shouldn't be punished becuase the victim deserved it.

Which is why I feel no difficulty at all in saying that Dershowitz is a bad person and he should feel bad. And yes, I also find it amusing that he seems to believe that as a defense attorney it is perfectly fine for him to drag the victims through as much mud as he can manufacture but if someone tries to smear him as he smeared his victims he feels shocked, outraged, and believes those who are smearing him should be harshly punished.

Conservatism is inherently a belief in and defense of a strict social hierarchy and privilege for those at the top, Dershowitz is demonstrating that perfectly. It's ok for him to smear poor girls as deserving rape because the man who raped them is high status and should be shielded from the law. It's bad for people to smear him because he's high status and high status people shouldn't be smeared.

On the more general side, I do think it should be forbidden for defense attornies to try to paint victims as deserving of whatever crime was committed against them. Trying to establish that their client is, in fact, innocent of the crime is their job. Trying to convince the jury that, well, yeah, their client did it but the victim was low status so their client shouldn't be punished is vile and should be prohibited by law.
posted by sotonohito at 6:29 AM on December 14, 2015 [17 favorites]


In regards to the accusations of plagiarism and poor scholarship against Dershowitz, if you look into Norman Finkelstein's accusations against Dershowitz I don't understand how you can find Dershowitz's scholarship sound.

And so in that sense, maybe his detractors are merely doing what Dershowitz himself does to opponents--throwing everything possible at them.
posted by GregorWill at 6:32 AM on December 14, 2015 [1 favorite]


The truth is that most people receiving a public defender are receiving very able representation

lol what [pdf] Quoting the summary:
Many public defenders lack the staff, time, training, and resources to investigate each case adequately or prepare a robust legal defense. Often, they end up spending only minutes per case due to overwhelming and unrealistic caseloads. As a result, they are simply unable to provide clients with their constitutional right to counsel, effectively making Gideon an unfunded mandate at a time when public defenders are needed most.
And to get from 'many' to 'most', one bit from the body of the report:
This patchwork of disparate funding has left most defender offices with insufficient staff and resources to appropriately represent clients, resulting in a system that is out of balance. The ABA recommends that individual public defenders have a maximum of 150 felony cases or 400 misdemeanor cases per year. However, the average public defender’s caseload exceeds that considerably.
Anyway, speaking as an attorney, Dershowitz can be as scorched-earth as he likes within the bounds of the attorney ethics rules, but that does not mean the broader public has to like his tactics or approve of him as a person. The rules bind attorneys, not the public. And even attorneys are free to conclude that, although his methods may be within the rules (and I'm not saying whether they are or not), they are distasteful or even immoral.
posted by jedicus at 7:16 AM on December 14, 2015 [7 favorites]


I served on a jury once. The defendant was accused of pouring a pot of boiling water on her ex-boyfriend while he was asleep in bed. On the side of the prosecution, we had the police report, the hospital records, and, more to the point, the victim sitting in the witness stand saying "Yes, that's her, yes, she did this."

The defense attorney (whom I remember as wearing a very expensive-looking watch) spent all his time impugning the character of the ex-boyfriend. "He stole a car when he was 16! He was in the juvenile justice system."

The ex, the victim, now works as an electrician. The defense attorney put him on the stand, looked him dead in the eye, and asked, "Are you a licensed electrician?" (The ex, to his credit, didn't flinch, and just replied that no, he's not a licensed electrician; he's an apprentice and works under the direct supervision of a licensed electrician.)

There was no counter-narrative, no attempt at all to suggest that the defendant hadn't committed a crime. It was one of the most absurd wastes of time I've ever seen.

We found the defendant guilty of 2nd Degree Assault and not guilty of 1st Degree Assault, because the injuries suffered didn't meet the legal standards for the charge. I wonder how much money that attorney raked in for that little performance.
posted by Faint of Butt at 7:25 AM on December 14, 2015 [3 favorites]


I'm amazed anyone with a passing knowledge of this case would believe Dershowitz is innocent. The most recent accuser has far more credibility and evidence of her claims (including photos of 16 year old her with Prince Andrew) than the man who has repeatedly threatened and then followed through on the threat to sue her (someone with few resources) and her lawyers for defamation and seek their disbarment. That is a pretty extraordinary action; I doubt many lawyers persue disbarring their colleagues.
posted by saucysault at 7:26 AM on December 14, 2015 [1 favorite]


There was no counter-narrative, no attempt at all to suggest that the defendant hadn't committed a crime. It was one of the most absurd wastes of time I've ever seen.

A couple of observations. First, it is not the defense attorney that decides to take a case to trial. That decision ultimately rests with the defendant, as does the decision to take or refuse a plea deal. If an absurdly lop-sided case ends up in court, it's probably because the defendant pushed for it, quite possibly against the advice of their attorney.

Second, defense attorneys are often given a choice between a 1,000-to-one shot and a 10,000-to-one shot, and the only thing to do is choose the 1,000-to-one shot. Still terrible odds, but it's the best you have. So the defense was absurd, but it was probably the 'best' option available to the attorney.

There is a saying: "when you can't argue the law, argue the facts; when you can't argue the facts, argue the law; when you can't argue the law or the facts, pound on the table." A defense that consists solely of vague character assassination of the witnesses is a pretty textbook example of table-pounding.
posted by jedicus at 7:51 AM on December 14, 2015 [4 favorites]


Discrediting honest witnesses isn't part of that remit.

Witnesses don't come with a stamp that says "honest" or "dishonest." It is up to the jury -- not the defense attorney -- to decide whether a witness's testimony is true or not true. It is the defense attorney's job to probe that testimony for weakness, even if the witness is HH the Dalai Lama, or Mother Theresa, or whoever you think of when you think of somebody whose word is ironclad.

A little more abstractly, there is a long tradition in the West of arriving at the truth by argument, or of the truth being whatever has survived after an adversarial interrogation. This tradition pre-dates Socrates, and comes right up through Wittgenstein's language games and Gadamer's comment that understanding emerges out of conversation.

From a forensic standpoint, the problem with exploring the accuser's own sexual history is that, while it is irrelevant to the question of consent in a particular case, people have a hard time understanding that it is indeed irrelevant, because of patriarchial attitudes toward women and sexuality. Drawing a line around excluding this subject matter from examination for the purpose of impeachment is appropriate and good.

By contrast, a witness's use of drugs (legal or illegal) may, or may not, be relevant to the question of what they observed or remember having observed, and it may, or it may not, be the case that juries have equivalent difficulty identifying when it is relevant and when it is not. It is my understanding that the case for drawing a similar line has yet to be made.
posted by gauche at 8:08 AM on December 14, 2015 [7 favorites]


There is a saying: "when you can't argue the law, argue the facts; when you can't argue the facts, argue the law; when you can't argue the law or the facts, pound on the table." A defense that consists solely of vague character assassination of the witnesses is a pretty textbook example of table-pounding.

Which doesn't mean we should view such a defense as either legitimate or ethical.

Witnesses don't come with a stamp that says "honest" or "dishonest." It is up to the jury -- not the defense attorney -- to decide whether a witness's testimony is true or not true. It is the defense attorney's job to probe that testimony for weakness, even if the witness is HH the Dalai Lama, or Mother Theresa, or whoever you think of when you think of somebody whose word is ironclad.

There's a vast difference between probing the testimony for weakness - finding inconsistencies and logical holes in the witness' account, and directly attacking the witness in order to undercut the legitimacy of the testimony presented. Many people are finding the latter to be of dubious ethics.
posted by NoxAeternum at 8:14 AM on December 14, 2015 [4 favorites]


There's a vast difference between probing the testimony for weakness - finding inconsistencies and logical holes in the witness' account, and directly attacking the witness in order to undercut the legitimacy of the testimony presented. Many people are finding the latter to be of dubious ethics.

Whether or not there is a vast difference is of no use in determining the ethics in a practical sense. Surely, there are things that all people of goodwill would agree are undoubtedly attacking the witness, and other things which are undoubtedly probing the testimony of the witness for weakness, but vast differences do not an ethical rule make.

An ethical rule requires a line over which this or that conduct can fall. The defendant is entitled to every act of his or her attorney which (a) falls on the ethical side of the line and (b) the attorney believes, in her professional judgment, to be in the defendant's interest. Every single act. Accordingly, where the line is drawn in the continuum of conduct -- not whether there are clear cases at the extremes -- is not merely salient but vital to the question of attorney conduct.

I can, and you can, too, think of any number of inquiries which could, seen in one light, constitute attacking the witness, and, seen in a different light, constitute probing the testimony. Accordingly, the line must not be drawn too closely to the one extreme (e.g., "an attorney must never pursue a line of questioning which could be perceived as going to the honesty of the witness rather than the veracity of the testimony") because that deprives the defendant of many lines of questioning which constitute a vigorous defense even if they also may seem to be attacking the witness.
posted by gauche at 8:48 AM on December 14, 2015 [3 favorites]


More to the point there is a vast golf between attacking the credibility of a witness and attacking the character of the victim in order to argue that the victim deserved the attack.
posted by sotonohito at 9:00 AM on December 14, 2015 [2 favorites]


I can, and you can, too, think of any number of inquiries which could, seen in one light, constitute attacking the witness, and, seen in a different light, constitute probing the testimony. Accordingly, the line must not be drawn too closely to the one extreme (e.g., "an attorney must never pursue a line of questioning which could be perceived as going to the honesty of the witness rather than the veracity of the testimony") because that deprives the defendant of many lines of questioning which constitute a vigorous defense even if they also may seem to be attacking the witness.

The thing is that the pendulum is swung rather far in the opposite direction, where we defend outright character assassination by defense attorneys as being part of a "zealous defense". Yes, there are lines of questioning that do involve critiquing the witness that are nonetheless exculpatory in nature, but trafficking in insinuation and innuendo strikes me as going beyond that.
posted by NoxAeternum at 9:11 AM on December 14, 2015 [1 favorite]


The truth is that most people receiving a public defender are receiving very able representation (with the lawyer glut we're starting to see really high quality folks working in public defense) but they're still not supplying Dershowitzian "zeal." You need to be rich to get the "full-ass," especially the bespoke orthogonal plea deals.

That seems uncharitable to grobstein's point. Those public defenders aren't slacking off or being half-assed. But they do have a lot of clients. Dershowitz can give his clients a hell of a lot of specialized attention that the public defenders can't give theirs. They can be giving their clients 100% of their ass while not being able to give them a Dershowitz-style ass. That doesn't mean they're not being as zealous as they can be.
posted by kenko at 9:24 AM on December 14, 2015


kenko, sure it does. Many people never even met their public defender until the trial day, and then the defender tells them to take whatever deal the prosecutor offers. That isn't defense.

I'm not saying that the public defenders are bad people, just that they have impossible jobs. They get so loaded down with clients they can't do a good job if they try.
posted by sotonohito at 11:06 AM on December 14, 2015


There is a saying: "when you can't argue the law, argue the facts; when you can't argue the facts, argue the law; when you can't argue the law or the facts, pound on the table." A defense that consists solely of vague character assassination of the witnesses is a pretty textbook example of table-pounding.

Yeah see, my problem is that I don't believe that table-pounding is an acceptable form of legal defence (or prosecution, for that matter). Facts and law, not the third one, thanks.
posted by feckless fecal fear mongering at 11:18 AM on December 14, 2015 [1 favorite]


Yeah see, my problem is that I don't believe that table-pounding is an acceptable form of legal defence (or prosecution, for that matter). Facts and law, not the third one, thanks.

I wasn't arguing that it was (or wasn't) acceptable. I was underscoring that it was probably the "best" option the attorney had in a very lop-sided case.

I'm curious what you mean when you say you don't believe that it's acceptable. Do you mean that you personally believe it is distasteful or immoral? Or that it should be legally prohibited? Would the prohibition only apply to attorneys or also to people representing themselves?

I wonder what MeFites would make of Monroe Freedman's argument that a lawyer has not only the ethical freedom but indeed the ethical obligation to allow (although not assist) a client to commit perjury.
posted by jedicus at 12:08 PM on December 14, 2015


Do you mean that you personally believe it is distasteful or immoral? Or that it should be legally prohibited? Would the prohibition only apply to attorneys or also to people representing themselves?

Yes, yes, and yes.

I wonder what MeFites would make of Monroe Freedman's argument that a lawyer has not only the ethical freedom but indeed the ethical obligation to allow (although not assist) a client to commit perjury.

I would say any lawyer that does so needs to be disbarred.
posted by feckless fecal fear mongering at 12:17 PM on December 14, 2015 [1 favorite]


Correct me if I'm wrong here, but looking at the articles it would appear that when defending Epstein, Dershowitz didn't actually attempt to argue that Epstein hadn't raped the girls in question, but that the girls were Evil Pot Smoking Hippies [...]

That seems wildly implausible. You don't defend someone charged with a serious offense by conceding that your client is guilty. Trials aren't often reported well and in this case we have only a story by someone who's focusing on how horrible Dershowitz is. That might be the case, but the it's not much basis for a specific criticism of his trial technique.

The reports in this post are a morass, but I can't find anything that says he referred to the girls' drug use in court. All the references seem to come back to this letter "obtained by The Guardian". It's not something raised at trial: it was something raised in a conversation with police after the police had received a complaint that Dershowitz' team was harassing the girls. It was basically "here's a transcript of our investigator's encounter with them, those girls are liars and, by the way they are horrible people."

Anyway, if this is the case then we've collectively spent a lot of time arguing about something that didn't actually happen. Par for the course here, I suppose.
posted by Joe in Australia at 12:18 PM on December 14, 2015 [6 favorites]


I wonder what MeFites would make of Monroe Freedman's argument that a lawyer has not only the ethical freedom but indeed the ethical obligation to allow (although not assist) a client to commit perjury.

In Australia, the UK, and some other Common Law jurisdictions this is described as being "forensically embarrassed". Basically, it's a big problem for the lawyer. This PDF discusses what I understand to be the current state of play, especially pp 20-24.
posted by Joe in Australia at 12:36 PM on December 14, 2015 [2 favorites]


This PDF discusses what I understand to be the current state of play, especially pp 20-24.

That's a nice write-up, thanks. Freedman's view seems to get about as little traction in other common law countries as it does in the US, though I've always found it interesting from a radical defendant's rights point of view.
posted by jedicus at 1:33 PM on December 14, 2015


It's complete bullshit to excoriate a lawyer for whom he has defended. I know nothing about these cases or accusations and I don't care enough to read about them now.

A vigorous defense is every lawyers duty and every defendants right. Its shameful and shows a lack of understanding of the rule of law.

I'm not a Dershowitz fan particularly either.
posted by sfts2 at 1:45 PM on December 14, 2015


A vigorous defence that relies on the law and making sure the state has dotted every i and crossed every t. Not slandering victims.
posted by feckless fecal fear mongering at 1:47 PM on December 14, 2015 [3 favorites]


Was he found guilty of slander? Because I don't like the dude either but by all reports he's a phenomenal lawyer and legal scholar.
posted by Joseph Gurl at 5:39 PM on December 14, 2015 [1 favorite]


I can't find anything that says he referred to the girls' drug use in court

My understanding is that the case was not presented in court. Of the forty underage victims the police based their charges on - and these were girls unearthed by police investigations, I do not believe any of the girls willingly came forward on their own (many girls were reluctant to speak to the police), Dershowitz campaigned quite heavily against their credibility one by one (for example, insisting a girl that had been gang raped at fourteen by another group of men was not credible because she had been raped already therefore her claims of rape by Epstein unbelievable, as though underage girls only get one rape per life).

The DA agreed to a VERY sweetheart deal for Epstein, granting immunity to a number of other powerful people (possibly including Dershowitz), most likely because the DA was in over their head and there were forty civil suits Epstein settled which some victims may have felt was "justice"..

The current lawyers representing Doe #3 have pretty stellar reputations, it is unlikely they would be willing to take on such a risky case (and not be intimidated by Dershowitz) unless they had some strong supporting evidence.
posted by saucysault at 5:58 PM on December 14, 2015 [2 favorites]


It is pretty gross that he still insists on calling one of the 15 year old rape victims a prostitute and claiming she made her own choices at 15, let alone now attacking her parenting abilities a decade later as though (former or current) sex workers cannot be fit parents.
posted by saucysault at 6:02 PM on December 14, 2015 [4 favorites]


That seems uncharitable to grobstein's point. Those public defenders aren't slacking off or being half-assed. But they do have a lot of clients. Dershowitz can give his clients a hell of a lot of specialized attention that the public defenders can't give theirs. They can be giving their clients 100% of their ass while not being able to give them a Dershowitz-style ass. That doesn't mean they're not being as zealous as they can be.

So, first, I agree with all of this, I think, except the claim that I'm being uncharitable. My claim is just that if there are really two definitions of zealousness: one for paying clients, and one for charity cases. The paying clients get a kind of maximal zealousness; the charity cases are often defended by very high quality attorneys, but those attorneys don't have the time of resources to live up to the maximal zealousness standard. I don't want to say they're not zealous: that would be an indication that they deserve to be disbarred, and I don't think that's true.

But I do think public defenders are facing massive structural obstacles to a zealous defense. And in some cases that rises to a level where the very few, underfunded public defenders technically *are* guilty of disbarrable offences, but even there it's the structure that's the problem.
posted by anotherpanacea at 6:17 AM on December 15, 2015


The ex, the victim, now works as an electrician. The defense attorney put him on the stand, looked him dead in the eye, and asked, "Are you a licensed electrician?" (The ex, to his credit, didn't flinch, and just replied that no, he's not a licensed electrician; he's an apprentice and works under the direct supervision of a licensed electrician.)

Even with the understanding that defense attorneys don't control what cases go to trial and sometimes you go to trial with the case you have and that case is terrible,* that question offends me as an example of bad cross examination. There's no way the attorney knew the answer to that question (because the answer is in no way helpful, even for attacking credibility). The attorney went fishing and failed because that is what happens when you go fishing like that on cross.

As for zealousness, these rules vary by state, as well. I'm a member of two bars. One calls for zealousness, but the other calls for "reasonable diligence" and states in the comment to that rule that "[t]he lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or permit treating any person involved in the legal process without courtesy and respect." Even the bar which does call for "zeal" notes that "the lawyer’s duty to pursue a client’s lawful objectives zealously does not prevent the lawyer from...avoiding offensive tactics, or treating all persons involved in the legal process with courtesy and consideration."

For me, this isn't a cut and dried thing where the rules require attorneys to do every technically legal thing they can do that might protect their client. In fact, in one of the bars I'm admitted to, it's a ethical violation for me to, in a professional capacity manifest various forms of prejudice "when such action is prejudicial to the administration of justice." While there's an exception to that clause for "legitimate advocacy,"I think it'd be reasonable for me to conclude that certain types of attacks on the character of sexual assault victims manifest sexism in a way that is prejudicial to the administration of justice and aren't legitimate advocacy. If I were in that situation, I'd probably at least do some research before making a decision.

*Ask any public defender if they've used the "borrowing someone else's pants" defense to a possession charge. I'm sure it's worked for someone, but you're not playing the odds with that one.
posted by Bulgaroktonos at 7:18 AM on December 15, 2015 [4 favorites]


I was sitting in a courtroom yesterday and the Public Defender reinforced several times from the Bench, made the explicit point that he didn't have to put on any defense, because the burden of proof was on the prosecution. Which on one hand only reminds everyone of the founding principles of our judicial system. And on the other hand, it sets expectations low.
posted by mikelieman at 11:24 AM on December 15, 2015


Which on one hand only reminds everyone of the founding principles of our judicial system. And on the other hand, it sets expectations low.

I did a criminal justice clinic in law school which heavily emphasized that every defense needed a story of "actual innocence" because humans think with stories, and you need to explain the evidence through a story that showed that the defendant was actually innocent, rather than simply that the state hadn't met its burden. We even had a helpful flowchart of possible stories to use, where almost every path ended in the phrase "the Defendant is the victim of a plot by liars," because that was applicable to most cases, but wasn't usually the best defense available. All that training was super helpful, but I also worked as a PD for most of a year and when I had 20 misdemeanor cases per day two or three times per week, most of that training was very, very difficult to apply. It's incredible important work, I felt strongly about it, and loved my coworkers, but I'm pretty happy in retrospect that I didn't wind up there long term.
posted by Bulgaroktonos at 11:43 AM on December 15, 2015


A few years ago, I was on the jury in a felony trial in which the Public Defender did not call any witnesses and claimed that the prosecution had not made its case. She did have a story about the client's innocence though, and told it in the cross examination, the opening and the closing statements. We found the defendant not guilty.

It was a case with four charges of felony counterfeiting. If you knowingly sell counterfeit goods, you are guilty of felony counterfeiting in the state of California. According to the prosecution, the man on trial had worked as a clerk in a store in a bad area of Los Angeles for the three months or so before the raid, made about a thousand dollars a month working at the store, and admitted to the police officer who made the raid that he knew the goods were "illegal". There were counterfeit Nikes, True Religion jeans, Ed Hardy t-shirts, and something else found at the store.

The prosecution called a witness to show that the goods seized were in fact counterfeit, and also called the police officer who arrested the clerk to state that the defendant, when legally questioned during the raid, admitted knowing that the goods were illegal.

In some ways the prosecution lost this case in voir dire, jury selection. It was incredible watching the two attorneys fight over who got kicked out and who got to stay.

As a jury, we found that just because the clerk admitted knowing that the goods in the store were illegal doesn't mean that he knew they were counterfeit. We also were wondering why the prosecution had wasted our timing bringing charges against a clerk who had worked at the store part time for less than half a year, and where the case was against the owner of the store. Nothing in the prosecution's questioning of the police officer seemed to intimate that they were even investigating the owner of the store.

I thought the public defender did a masterful job by not calling any witnesses and resting after the prosecution made its case. It was a risky strategy, but it paid off.
posted by GregorWill at 8:39 AM on December 16, 2015 [5 favorites]


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