Dershowitz Supplements His Request to Intervene in Jane Doe Lawsuit

[Warning: This is very long. It assumes you know the basics. If not, see my four prior posts on the Dershowitz - Jane Doe claims, accessible here.]

Victims' Rights Lawyers Paul Cassell and Bradley Edwards have not yet responded in court to Alan Dershowitz' motion to intervene in the civil suit between Jane Does 1 and 2 and the Department of Justice. The Court has not yet ruled on Dershowitz' motion. Yesterday, Dershowitz filed a supplement to his motion. I have uploaded it here.

In addition to asking that he be allowed to intervene, he asks that Cassell and Edwards' allegations against him be stricken and that the Court enter a "show cause" order (explaining why they shouldn't be held in contempt of court.) [More...]

In addition to again stating the allegations are false, he points out the untimeliness of Jane Doe #3's request to be added to the Jane Doe civil lawsuit:

The contemptible allegations made against Alan Dershowitz for the very first time in December 2014, were not included in Jane Doe #3’s statements to the Government, were not included in Jane Doe #3’s statements to the FBI when she was initially interviewed, were not included in Jane Doe #3 action for civil damages under 18 U.S.C. § 2255 in 2009, and were not included in her tape recorded interview with her attorney Bradley Edwards in April 2011. These false allegations against Alan Dershowitz are completely irrelevant as to whether or not she should be permitted to join this long lasting nCVRA litigation.

....Jane Doe #3 knew of the NPA not later than 2008, sued Mr. Epstein under its provisions in 2009 (benefitting from the NPA’s requirement that Mr. Epstein not contest liability to any claimant suing him for damages under 18 U.S.C. § 2255), gave a recorded interview to her lawyer in April 2011 regarding Mr. Epstein, and had knowledge (at least constructive, if not actual) that this Court ruled on September 26, 2011 that CVRA rights apply before a formal charge is brought. (See, DE 99, DE 189 at 5, 8.) Jane Doe #3 makes no attempt to provide a principled basis for why she would delay her request to join the CVRA after providing the attorney for Jane Does 1 and 2 with a taped interview 44 months earlier.

He also says he was not a major participant in negotiating the non-prosecution agreement for Epstein.

Finally, the attempt to connect the allegations against a non-investigated nonparty, Alan Dershowitz, to a CVRA right to confer by contending that he “play[ed] a significant role in negotiating the NPA on Epstein’s behalf” and “helped negotiate an agreement with a provision that provided protection for himself…” is simply false. (DE 279 at 4.) The Government can attest that the NPA was negotiated with other counsel for Mr. Epstein – specifically, attorneys Jay Lefkowitz and Martin Weinberg.

Additionally, its immunity provision was intended to apply to four alleged co-conspirators, who were named in the original NPA and later redacted at their request. The Government will surely attest to the fact that at the time the NPA was drafted, Alan Dershowitz was never alleged to be a potential co-conspirator. And, even if he had engaged in sex with underaged victims, which he most assuredly has not, the opposing lawyers would surely argue that he is not subject to the immunity be because the alleged rape would make him an alleged perpetrator, rather than a co-conspirator. To be sure, all of this is irrelevant because Alan Dershowitz was neither. Nor was he a suspect, subject, or target at the time of the NPA.

Lawyers (including myself) have a tendency to nit-pick words and phrases. Sometimes unfairly, such as, in my view, here. The columnist writes that in denying that he had sex with Jane Doe #3 (Virginia Roberts, formerly known as Jane Doe #102 in her civil lawsuit against Jeffrey Epstein, who publicly identified herself in 2011 in media interviews) at Epstein's home on his personal island in the Virgin Islands, he's not denying he had sex with here anywhere else in the Caribbean, and her motion was not restricted to a specific island. Dershowitz cleared it up for him here. In addition, the writer has now received and reprinted a letter from a former research assistant of Dershowitz who worked with him on the Epstein case in 2006 and defends Dershowitz against the writer's critique.

It is simply not true that Mr. Dershowitz was attempting to deny less than what was alleged. Mr. Dershowitz’s declaration was written for a court familiar with the context of the allegation. You should have extended him the courtesy of reading his declaration in that light, especially following his response to your initial post, in which he reiterated his full and unambiguous denial that he did not have sex “with Jane Doe 3, any other Jane Does, or any other underage human being anywhere in the world, including all the places mentioned by Whelan.”

Reading the pleadings is a good place to begin if you are going to write about a case. I agree it was clear Dershowitz was issuing a full denial. The problem is there are so many cases involving these particular people that most reporters don't have the time. There are the multiple victims' lawsuits against Epstein. There is also Epstein's lawsuit against lawyer Edwards in state court in a case involving convicted Ponzi scheme lawyer Scott Rothstein. The state court pleadings aren't available for free through the court, but Edwards and Epstein helpfully attach several of them to pleadings in the federal cases.

There's also the federal bankruptcy litigation involving Rothstein, in which both Epstein and Edwards participated as litigants (Edwards was also designated a victim in the case). There's a lawsuit between Epstein and the independent lawyer selected by the Government's special master to represent the victims against Epstein. There's even a state case in New York.

There are references to Dershowitz' representation of Epstein and to various Jane Does in almost all of these cases, but I haven't yet found a single reference to the sexual misconduct claims against Dershowitz raised in the present battle.

Too many people seem intent on bashing Dershowitz because he represented an unpopular client. The Jane Doe lawyers have made incendiary allegations against an esteemed law professor and advocate who to my knowledge has never before been accused of unlawful sexual activity. The issues now are not Jeffrey Epstein's conduct, but Alan Dershowitz' conduct. Although raised in the context of a civil lawsuit, the allegations are criminal in nature and profoundly damaging to his reputation.

I've said before and continue to maintain that I think more scrutiny needs to be given to the statements and filings by the lawyers for the Jane Does, Paul Cassell and Bradley Edwards. I find inconsistencies and factual errors in some I'd like to see explained. Nit-picking? In part, but their statements are more troubling to me than whether Dershowitz specified the particular Virgin Island he didn't have sex on.

I'm not taking a position on who, if anyone, defamed who. As usual, I wasn't there. I'm not a libel lawyer. Nor am I justifying the conduct of Jeffrey Epstein, or suggesting he shouldn't have been prosecuted, or served any time. I wasn't involved in his case and I am not privy to any defense information to know what defenses he had to the charges. As to bias, I view every case from the defense perspective of protecting the rights of those accused of crime. I don't know Dershowitz (other than from being on TV with him a few times many years ago.) I do know three of Epstein's other lawyers, and consider them not only friends, but top-notch, highly respected, extremely ethical attorneys. My views on criminal justice are 180 degrees from those of the Jane Doe lawyers.

None of this means I can't analyze the pleadings and form an opinion as to which side I personally find more credible at this stage as to the allegations against Dershowitz. My comments are my opinion, not an assertion of fact.

Why publish my thoughts now? Because he's 76 years old and this case could take years to resolve. I think he's entitled to finish his career with the presumption of innocence attached to his name.

Let's start with claim by the Jane Doe lawyers that they previously tried to take Dershowitz' deposition.

In a press release issued after Dershowitz first attacked the Jane Doe #3 filing in the media, the Jane Doe lawyers write:

"We have been informed of Mr. Dershowitz's threats based on the factual allegations we have made in our recent filing. We carefully investigate all of the allegations in our pleadings before presenting them. We have also tried to depose Mr. Dershowitz on these subjects, although he has avoided those deposition requests. Nevertheless, we would be pleased to consider any sworn testimony and documentary evidence Mr. Dershowitz would like to provide which he contends would refute any of our allegations." (my emphasis).

As written, "these subjects" means "the factual allegations in our recent filing." The factual allegations in their recent filing include allegations that Dershowitz engaged in illegal activity with a minor and may have improperly used his influence to get his client a deal to protect himself from prosecution.

Dershowitz says they never told him they wanted to depose him about his own activities, or suggested he had engaged in illegal activity. The Jane Doe lawyers, Cassell and Edwards, say they wrote Dershowitz at the time they initially requested his deposition and informed him they weren't seeking protected information about his client when they sought to depose him. Their letter said:

Multiple individuals have placed you in the presence of Jeffrey Epstein on multiple occasions and in various locations when Jeffrey Epstein was in the company of underage females subsequently identified as victims of Mr. Epstein's criminal molestations. This information is derived from both someone's testimony and private interviews. Your personal observations regarding such circumstances would clearly not involve any privileged communications, and it is those observations that will be the primary focus of our questioning. (my emphasis.)

First, personal observations are not the same thing as personal participation. The recent motion accuses Dershowitz of engaging in illegal activity, not just witnessing it.

Their most recent letter to Dershowitz says:

"Statements attributed to you in the public media express a willingness, indeed a strong desire, to submit to questioning under oath regarding your alleged knowledge of Jeffrey Epstein's extensive abuse of underage females as well as your alleged personal participation in those activities. As I am sure you will recall, our efforts to arrange such a deposition previously were unsuccessful, so we welcome your change of heart." (my emphasis)

I think the Jane Doe lawyers expanded the subjects of the proposed deposition after the fact. In a pleading called Statement of Undisputed Facts filed by lawyer Edwards in a state lawsuit between him and Epstein, filed as an exhibit in the civil case and the Rothstein federal bankruptcy case and linked to in a law review article, Edwards attempted to defend his request to depose Dershowitz. (Paragraph 72, pp. 26-27):

Edwards provided notice that he intended to depose Alan Dershowitz. Edwards possessed a legitimate basis for doing so: (a) Dershowitz is believed to have been friends with Epstein for many years; (b) in one news article Dershowitz comments that, “I’m on my 20th book... The only person outside of my immediate family that I send drafts to is Jeffrey” The Talented Mr. Epstein, By Vicky Ward on January, 2005 in Published Work, Vanity Fair (See article attached as Exhibit “00”); [c] Epstein’s housekeeper Alfredo Rodriguez testified that Dershowitz stayed at Epstein’s house during the years when Epstein was assaulting minor females on a daily basis; (d) Rodriguez testified that Dershowitz was at Epstein’s house at times when underage females where there being molested by Epstein (see Alfredo Rodriguez deposition at 278-280, 385, 426-427); (e) Dershowitz reportedly assisted in attempting to persuade the Palm Beach State Attorney’s Office that because the underage females alleged to have been victims of Epstein’s abuse lacked credibility and could not be believed that they were at Epstein’s house, when Dershowitz himself was an eyewitness to their presence at the house; (f) Jane Doe No. 102 stated generally that Epstein forced her to be sexually exploited by not only Epstein but also Epstein’s “adult male peers, including royalty, politicians, academicians, businessmen, and/or other professional and personal acquaintances” — categories that Dershowitz and acquaintances of Dershowitz fall into; (g) during the years 2002-2005 Alan Dershowitz was on Epstein’s plane on several occasions according to the flight logs produced by Epstein’s pilot and information (described above) suggested that sexual assaults may have taken place on the plane; (h) Epstein donated $30 Million one year to the university at which Dershowitz teaches. Based on this information, Edwards had a reasonable basis to believe that Dershowitz might have relevant information to provide in the cases against Jeffrey Epstein and accordingly provided notice of a possible deposition. (my emphasis.)

it seems to me that Edwards is saying in this pleading he is "fishing" for information on Dershowitz's conduct (all he has is that he "fits into the category of" people who are alleged to have done something wrong). The "fits in the category" language is also a boilerplate allegation. He uses the same words in defense of his requests to depose Bill Clinton, Donald Trump and Bill Richardson.

But he also says his overall intent in seeking the deposition was to obtain information for the cases against Epstein (not to make a case against Dershowitz.) In my personal opinion, it is disingenuous for the lawyers to claim now they told Dershowitz at the time they originally asked to take his deposition that they wanted to depose him about his own possible illegal activity. The letter to Dershowitz that accompanied the request for a deposition doesn't say that, and even Edwards' attempt to justify seeking the deposition after the fact says the request was made to get information to use in his clients' cases against Epstein.

It also should be noted that witness Rodriguez, cited by Edwards in his Undisputed Facts as the source of the allegations that Dershowitz may have observed under-aged girls at Epsteins' house, was later prosecuted and convicted of obstruction of justice for trying to sell Epstein's journal to lawyers in the civil cases. And even he didn't allege he observed Dershowitz engage in sexual or illegal sexual activity with them. So while his claim might have been relevant as to Dershowitz' observations, they were irrelevant to Dershowitz' conduct, which he never claimed to know anything about. He also died two weeks ago.

In my view, Edwards and Cassell are too careless at times with their facts. I wrote in an earlier post that they say in their recent filing that Virginia Roberts (Jane Doe #3 and #102) was recruited at age 15 in 1998, while she says in interviews (and the complaint in her lawsuit against Epstein maintains) it was 1999. A year can make a difference when you are alleging underage sex with a 17 year old victim. Even though they filed a corrected version of their motion a day or two later, they didn't correct the year she met and began working for Epstein.

In 2014, Edwards and Cassell wrote a law review article for Northwestern University Law School's Journal of Law and Criminology highlighting the Jane Doe vs. Epstein and government cases, available here. In the context of a discussion about when victims' rights attach, both in federal and state cases, they say the Palm Beach state investigation of Epstein began in 2006 (Page 92.)

In 2006, Epstein’s acts of abuse came to the attention of the Palm Beach Police Department, which began investigating the case.

It was 2005. In a footnote to that statement, they even cite and link to the affidavit for the state search warrant of Epstein's house. The first line of the affidavit says " From March 15, 2005, through February 2006,the Palm Beach Police Department conducted a sexual battery investigation involving Jeffrey Epstein, SK and HR which included the taking of sworn taped statements from 5 victims and 17 witnesses concerning massages and unlawful sex activity at his residence." (Names redacted by me.) Their accompanying footnote on page 92 reads:

195 See Probable Cause Affidavit, Palm Beach Police Department: Police Case No. 05- 368(1) (May 1, 2006), available at [here]; see also Statement of Undisputed Facts, Epstein v. Rothstein, No. 50 2009 CA 040800XXXXMBAG (Fla. Cir. Ct. Sept. 22, 2010), available [here].

This particular search warrant was issued in May, 2006, but it clearly says the investigation began in 2005. And Edwards says in his "Undisputed Facts" filed in the state case:

Edwards learned that the Palm Beach police department investigation ultimately led to the execution of a search warrant at Epstein’s mansion in October 2005. See Police Incident Report, Exhibit “A”.

This strikes me as sloppy, particularly when writing for a law review journal. Did their client feed them different stories? Did they not notice the discrepancy?

Another one: Cassell and Edwards' claim in their recent filing to add Jane Doe #3 (Roberts) to the lawsuit along with Jane Doe #1 and #2, that she was 17 during all three encounters with Prince Andrew. According to her interviews, she was over 18 at the time of the third encounter. The Daily Mail reports her birth date as August, 1983. Cassell and Edwards had to know she was over 18 at the time of the third incident with Prince Andrew, but they claim otherwise. Sloppy, careless, or did their client tell them a different version?

We all make typos. (I've already corrected several in this post.) But three mistakes on dates critical to their clients' claims, two in pleadings and one in a law review article, makes me suspicious. Call it nit-picking, but it raises doubts for me about the whole story.

Which brings us to Cassell and Edwards' claim in their recent filing implying, if not directly stating, that Dershowitz lobbied and negotiated for Epstein's co-conspirators to get immunity from prosecution because he was a co-conspirator and wanted protection for his own illegal sexual activity with an underage victim.

While the non-prosecution agreement does not limit co-conspirator liability to the four persons named (which Dershowitz' lawyers should have pointed out in their filing yesterday) it's clear from a review of all the lawsuits that the agreement is referring to those who allegedly helped procure underage girls for Epstein. Not one person named as a co-conspirator is a male who allegedly engaged in sexual activity with an underage female at the behest or invitation of Epstein. The agreement is filed in Case No. 08-cv-80736-KAM Document 48-5, Entered on FLSD Docket 03/21/2011, (not under seal). It says:

In consideration of Epstein's agreement to plead guilty and to provide compensation in the manner described above, if Epstein successfully fulfills all of the terms and conditions of this agreement, the United States also agrees that it will not institute any criminal charges against any potential co-conspirators of Epstein, including but not limited to SK, AR, LG, or NM.

[Names redacted by me, they appear in the publicly filed document]

Also, the non-prosecution agreement covers only 2001 to 2007. Jane Doe #3 (Roberts, aka Jane Doe #102) turned 18 in August, 2001. She left Epstein in September, 2002, first going to Thailand (a present from Epstein for her 19th birthday) and then to Australia, where she remained until 2013. Cassell and Edwards haven't provided any dates for Dershowitz' alleged illegal activity with her. If it was before 2001, the non-prosecution agreement wouldn't protect Esptein from charges or provide immunity to co-conspirators. If it occurred after August, 2001, she wasn't a minor. It seems to me any illegal activity by Dershowitz would have to have occurred during the 8 month period between January and August, 2001 to be protected under the agreement. If it didn't, I think their theory as to Dershowitz' motive doesn't fly.

Roberts sued Epstein in 2009, collected from him in 2010, and this is the first anyone is hearing of her accusations against Dershowitz. Instead of making these claims in 2002 when she escaped overseas, or in 2008 when she learned of the NPA, or 2009 when she sued Epstein, she waited until December 30, 2014. Why?

Cassell and Edwards say the allegations against Dershowitz were necessary to convince the court to allow Roberts to be added to the civil lawsuit of Jane Does #1 and #2, since the Government had refused to agree to her addition. That's a head-scratcher. Dershowitz isn't a party to the case. The government wasn't investigating him for criminal activity and didn't file charges against him. When she sued Epstein in 2009, her complaint said she was exclusively using the the remedy in the statute she filed under, availing herself of the free attorney selected by the Government's Special Master. (Epstein, by the way, didn't choose their lawyer, he was just obligated to pay his fees.) While the terms of the settlement agreement are not public, it would be very unusual if there was not a clause that said the agreement settles all claims between the collecting victim and Epstein.

The claim that Dershowitz acted out of self-protection strikes me as a calculated move to make a fraud case against the Government to undo the NPA, using Dershowitz as cannon fodder. Again, just my opinion.

Other tactics that cause me to doubt Edwards and Cassell's allegations: Their repeated references to Virginia Roberts as a "sex slave." and "enslaved." He provided her with her own apartment in Palm Beach. She didn't live with him. She was paid for her work. There's no indication she was threatened with violence if she left. Epstein's treatment of her was illegal, wrong and immoral, but she wasn't a slave. It strikes me more as voluntary, rather than involuntary servitude. A boyfriend from Colorado recently came forward to the Daily Mail and said he lived with her during the 11 months before she left Epstein. He said he planned on marrying her until he read her diary. If he's telling the truth, she was allowed to have a life apart from Epstein. That's not slavery.

I'm sure some will nit-pick with Dershowitz' supplemental filing today and point out that the immunity wasn't limited to the four named persons, and that if he was found to be a co-conspirator of Epstein's, the agreement barred his prosecution for any federal crime. But it should also be pointed out that the agreement as to both Epstein and his co-conspirators was expressly contingent upon Epstein complying with all the other requirements specified in the agreement -- something Dershowitz could not have predicted Epstein would do in 2007 when it was signed, and something he had no control over. If Epstein violated any term of the agreement, the whole thing was void. That's hardly something any lawyer would consider adequate protection for his own misdeeds.

Finally, as to those complaining that Dershowitz gathered dirt on the victims to protect a serial rapist, not only is that his job, but Epstein's discovery requests for very personal details about the victims were litigated in the civil cases and the court said the victims had to comply with the requests. Why? Because they put their sexual histories at issue when they claimed damages resulting from his conduct [08-cv-80119-KAM, Document 377, Entered on FLSD Docket 10/28/2009]. The order addresses several victims, thus in some parts it refers to one victim and in others to multiple victims.

Plaintiff in this case, Jane Doe 2, is seeking millions of dollars in personal injury damages for, among other things, physical injury, pain and suffering, emotional distress, psychological trauma, mental anguish, humiliation, embarrassment, loss of self-esteem, loss of dignity, and invasion of her privacy. These damages stem from allegations relating to her claims of sexual assault, sexual battery, coercion and enticement to sexual activity.

As an aside, this may be a good place to note that the Government has claimed that Jane Doe #2 is not a victim at all since she previously denied to the FBI she was a victim. It says since she isn't a victim, she isn't entitled to any notice about plea negotiations.

The judges ruling on discovery into the victims' past also says:

...Here, the [discovery] requests at issue go to the very heart of Plaintiff’s damage claims, requesting not only general information relating to Plaintiff’s sexual history, but inquiring as to specific instances wherein Plaintiff received compensation or consideration for sex acts, claim other males sexually assaulted, battered, or abused her, and/or claim other males committed lewd or lascivious acts on her.

As a global matter, Plaintiffs clearly and unequivocally place their sexual history in issue by their allegations that Epstein’s actions in this case have negatively affected their relationships by, among other things, “distrust in men,” “sexual intimacy problems,” “diminished trust,” “social problems,” “problems in personal relationships,” “feelings of stress around men,” “premature teenage pregnancy,”“antisocial behaviors,” and “hyper-sexuality and promiscuity.”

Considering these allegations, there simply can be no question that Epstein is entitled to know whether Plaintiffs were molested or the subject of other “sexual activity” or “lewd and lascivious conduct” in order to determine whether there is an alternative basis for the psychological disorders Plaintiffs claim to have sustained, whether Plaintiffs engaged in prostitution or other similar type acts and how certain acts alleged in the Complaint materially affected Plaintiffs’ relationships with others or how those acts did not have such an affect on those relationships and/or whether Plaintiffs suffered from the alleged emotional and psychological disorders as a result of other sexual acts prior to the acts alleged in the Complaint.

To deny Epstein this discovery, would be tantamount to barring him from mounting a defense.

Nor do see anything Dershowitz did wrong in defending his investigators to Florida detectives when an alleged victim complained about their conduct. Here's Dershowitz' response.

Everyone has a right to be defended against heinous charges, including the guilty. Not every victim tells the truth. How does the truth come out? Cross-examination. It's been known for centuries as the greatest legal engine ever invented for ferreting out untruths in the courtroom. [Wigmore]

Lawyers not only have the right to investigate the history of someone they believe has falsely accused their client, they have a duty to do so. Those who are criticizing Dershowitz for gathering "dirt" on women with troubled histories who at the time were "alleged victims", should hope they have a Dershowitz in their corner if they or a loved one are ever falsely accused.

The Bill of Rights was designed to protect the rights of the citizen accused, not crime victims. We now have laws protecting crime victims and providing them with certain rights. While the rights of crime victims must be respected, they should never be allowed to diminish the constitutional rights of the accused, whose rights the framers of the Constitution sought to protect.

Another way I view this whole thing: Unlike Cassell and Edwards, Dershowitz has no political agenda in this fight. He and Epstein's other counsel were doing their job: trying to protect Epstein as best they could. They did a great job.

Cassell and Edwards have become famous for their activism in the victims rights arena. I believe Cassell has said he resigned from the federal bench in large part to devote more time to his cause. Their clients already collected money damages against Epstein. Money is not an issue in the present lawsuit. They want him to serve more jail time. (I'm sure the victims would be happy if he was sentenced to life in prison plus cancer, and while I can understand their feelings, that's not an option.)

The lawyers' goal on behalf of their four clients is to undo a charging decision that by law rests solely with prosecutors, by claiming their clients weren't given advance notice of the government's decision to enter the federal non-prosecution agreement, in violation of the crime victims act. They don't claim their clients would have had a right to block the decision, had they been timely notified, because there is no such right. They have a right to be heard on plea negotiations, not a right to force a prosecutor accept their position.

Unless Cassell and Edwards come up with some hard and reliable evidence, that holds up under cross-examination, I'm suspicious of the claims against Dershowitz. I also believe in the presumption of innocence, which is not overcome until a judge or jury determines guilt beyond a reasonable doubt. Even a criminal indictment is not evidence, it is just a charge, as every jury is instructed and the bottom of every federal press release announcing an indictment points out. There are no criminal charges here against Dershowitz. The allegations of two lawyers representing victims who are unhappy with a prosecutorial charging decision in a court filing are not evidence. They are not proof. For that reason alone, Dershowitz should get the benefit of the doubt. I think it's the lawyers who made the allegations against him who have some explaining to do -- at least as to the reasons for their good faith belief their client is telling the truth about Dershowitz.

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  • Display: Sort:
    Re: "underaged" (5.00 / 1) (#8)
    by unitron on Wed Jan 14, 2015 at 04:56:33 PM EST
    The site sure must be screwy... (none / 0) (#12)
    by gbrbsb on Wed Jan 14, 2015 at 10:25:41 PM EST
    ... since it has your missive first in the 'best' comment list clocking in in with zero votes (one vote now since I felt sorry for it) and the 2nd best clocking in at 166... or maybe that's 1001 but the system only goes to 999! ∑`●)

    I thank you kindly... (5.00 / 1) (#16)
    by unitron on Sat Jan 17, 2015 at 05:18:03 PM EST
    ...for the vote.

    No hay de qué... (none / 0) (#17)
    by gbrbsb on Mon Jan 19, 2015 at 04:01:01 PM EST
    ... I felt it deserved it anyway as I wholeheartedly agree.

    Great job, TL. But you buried the lede (none / 0) (#1)
    by scribe on Wed Jan 14, 2015 at 04:57:02 AM EST
    although, to be fair, you had to bury it to chow just how much garbage has been thrown up by Cassell and Co.  The heart of this matter is here:
    Everyone has a right to be defended against heinous charges, including the guilty. Not every victim tells the truth. How does the truth come out? Cross-examination. It's been known for centuries as the greatest legal engine ever invented for ferreting out untruths in the courtroom. [Wigmore]

    Lawyers not only have the right to investigate the history of someone they believe has falsely accused their client, they have a duty to do so. Those who are criticizing Dershowitz for gathering "dirt" on women with troubled histories who at the time were "alleged victims", should hope they have a Dershowitz in their corner if they or a loved one are ever falsely accused.

    The Bill of Rights was designed to protect the rights of the citizen accused, not crime victims. We now have laws protecting crime victims and providing them with certain rights. While the rights of crime victims must be respected, they should never be allowed to diminish the constitutional rights of the accused, whose rights the framers of the Constitution sought to protect.

    If one were to look back at Cassell's history, in practice, academia and the bench, one of the most clear, linear and direct themes in his professional life has been degrading and eliminating the right of defendants to an adequate defense.  Across the board.  Whether it was his attempt while a judge to have Miranda overturned  (resolved against him and in favor of the defendant by the Supreme Court) or this latest escapade or anything in between, "getting" defendants has been the one unifying thread in his life.

    Here's hoping he loses, badly.

    Oops. Typo alert (none / 0) (#2)
    by scribe on Wed Jan 14, 2015 at 04:59:57 AM EST
    when I wrote
    although, to be fair, you had to bury it to chow just how much garbage has been thrown up by Cassell and Co.  The heart of this matter is here:

    I meant to say
    although, to be fair, you had to bury it to show just how much garbage has been thrown up by Cassell and Co.  The heart of this matter is here:

    Sorry about that.


    Really Mr. Deshowitz? (none / 0) (#3)
    by RickyJim on Wed Jan 14, 2015 at 01:48:21 PM EST
    Cross-examination. It's been known for centuries as the greatest legal engine ever invented for ferreting out untruths in the courtroom. [Wigmore]

    The value of cross examination by the opposing parties in a trial has been debated for centuries.  For example, see "The Origins of Adversary Criminal Trial" by John H. Langbein.  I think as a truth finding technique, it is inferior to an inquisition by neutral (and sophisticated) finders of fact.  It is especially dangerous in front a jury that may be more impressed by showmanship than substance.


    When you've actually tried a dozen or so cases (5.00 / 1) (#4)
    by scribe on Wed Jan 14, 2015 at 02:08:21 PM EST
    please be so kind as to give us a call.

    Until then, you sound like a 13 year-old boy telling the world all there is to know about women.

    We who have actually tried cases can go on with story after story of how even a pedestrian cross-examination can break the will, and dishonesty, of even the most skilled bullsh*t artist.  And if you're good at cross-examining, you can leave judges and juries in awe at the truth you get out.  I've been there and I've done it.  It works.


    Well, to be fair, (none / 0) (#5)
    by Reconstructionist on Wed Jan 14, 2015 at 04:30:55 PM EST
      exposing untruths and revealing the truth are not one and the same.

       I've tried many cases and I'm always focused on exposing the untruths on cross-examination but not always  so much on revealing the truth, because I'm  trying to win the case.  In fact, one who tries cases for a living would probably admit a goal of creating doubt about whether likely truthful statements from opposition witnesses are the truth.


    "Well, to be fair," (none / 0) (#6)
    by NYShooter on Wed Jan 14, 2015 at 04:38:43 PM EST
    Certain assumptions have to be made.

    Such as, their side having an attorney equally as skillful as your side has.


    Even with that assumption (none / 0) (#13)
    by Reconstructionist on Thu Jan 15, 2015 at 08:51:20 AM EST
     what I said would hold. Even if both sides have "equally skilled" lawyers there are many instances where the lawyer seeking to create doubt about the veracity or reliability of a witness who may in fact be a "truth-teller" would be able to accomplish that goal. The impact of skill can be mitigated by issues relating to the witness.

      One example is where a witness is impeached with EVIDENCE of a prior conviction, bias, motive to favor one side and a prior inconsistent statement. All the skill in the world can't change such EVIDENCE and will not necessarily prevent the jury from disbelieving or having doubt about the testimony given by that witness. It is however not always the case that such witnesses are in fact untruthful.

      Another example is where cross examination reveals that an expert witness deviated from accepted protocols or standards in conducting the tests that provide the basis for his conclusions. All the skill in the world, again, cannot change the EVIDENCE that the witness committed errors or necessarily prevent the jury from doubting the conclusions because of those errors. It is of course still possible that despite the errors the conclusions are accurate.

      There are many others.


    What happens when you get... (5.00 / 1) (#7)
    by unitron on Wed Jan 14, 2015 at 04:44:21 PM EST
    ...neutral, sophisticated, and lazy finders of fact who are content to only find some of the facts?

    Hopefully, They Will be Fired (none / 0) (#9)
    by RickyJim on Wed Jan 14, 2015 at 04:59:16 PM EST
    The question here is whether the truth is more likely to come out if the proceedings are controlled by warring opponents who only present a highly biased point of view versus having them controlled by people who job is to search for the truth.  I think the answer is obviously the latter, except to those who have a vested interest in winning cases, especially weak ones.  And it happens that the legal community outside of the English speaking countries agrees with me.

    That would certainly be a problem, (none / 0) (#10)
    by Zorba on Wed Jan 14, 2015 at 05:01:23 PM EST
    Yes.  If they are "lazy" finders of facts, that does not serve the interests of truth or justice

    Ricky Jim's complaint (none / 0) (#14)
    by NYShooter on Fri Jan 16, 2015 at 01:53:03 PM EST
    goes back to when we were debating the outcome of the Ferguson Grand jury. I quoted that very statement about cross examinations being instruments of getting at the facts, and R.J, of course, defending McCullough's "kangaroo" Grand Jury method.

    My point, of course, was that the outcome was pre-ordained since it was exactly the outcome McCullough wanted, and got, with the unusual, and highly questionable, way he constructed the proceedings.

    My point then, as now, was that if only one side gets expert representation don't be surprised that that side prevails.


    Actually, RickyJim has been... (none / 0) (#15)
    by unitron on Sat Jan 17, 2015 at 05:11:04 PM EST
    ...regaling us with tales of how superior European justice systems are to our own at least since the Zimmerman case.

    I remain unconvinced, and wonder if perhaps it's like Churchill said about democracy--the worst system in the world, except for all of the others.


    Ricky Jim, those are not Dershowitz' words (5.00 / 1) (#11)
    by Jeralyn on Wed Jan 14, 2015 at 06:43:22 PM EST
    Those are mine, paraphrasing Wigmore'.  If you don't know who he is, you should google him. Here's one description:

    John Henry Wigmore ranks as one of the most important legal scholars in U.S. history. A law professor and later dean of Northwestern University Law School from 1901 to 1929, Wigmore was a prolific writer in many areas of the law. He is renowned for his ten-volume Treatise on the Anglo-American System of Evidence in Trials at Common Law--usually referred to as Wigmore on Evidence--originally released in four volumes (1904-1905) but expanded to ten volumes by the third edition (1940). Legal scholars consider this treatise one of the greatest books on law ever written

    The full quote is:

    "Cross-examination is the greatest legal engine ever invented for the discovery of truth. You can do anything with a bayonet except sit on it. A lawyer can do anything with cross-examination if he is skillful enough not to impale his own cause upon it." - JOHN HENRY WIGMORE -