Accuser and her lawyers need to prove their claims, not hide behind court pleading privilege.
Alan Dershowitz, along with others including Prince Andrew of Britain, were accused in a court filing involving convicted sex offender Jeffrey Epstein of participating in forced sex with a 17-year old.
The court filing was not criminal, and was not even under oath. It merely was a motion suing prosecutors for agreeing to a light sentence for Epstein, without any evidence accompanying the allegations.
I’ll let you in on a not-so-secret lawyer secret: When you want to smear someone without having to back it up, just put it in a court pleading. Statements made in court pleadings are absolutely privileged, meaning you can’t be sued for them. If you make the statements out of court, for example in a press release, then you can be sued. If you make the statements under oath, you could be subject to criminal prosecution. But keep it in the court pleadings, and you likely are home free.
Step two in the tactic is to make sure the media picks up on the court pleading, so that the smear gets out into the public domain while your hands are clean. In high profile or celebrity cases, local media typically will be alerted to new filings either from routine checks or a tip off from the clerk. If all else fails, the tactic may require a nod and a wink to local reporters by the lawyer.
It is the perfect smear tactic, which leaves the target short on options. The target is not a party in the case, and has no right to clear his or her name in the court case. All that is left is public denials that the accusations are false, but that also helps to spread the accusations.
Particularly in an age when we are used to public figures lying about sexual escapades only to be proven otherwise, the louder the target protests his or her innocence, the less he or she is believed.
That’s the situation Dershowitz finds himself in.
And he’s doing the only thing he can, going on offense, trying to force the accuser and her lawyers to go on record in a forum and manner that is not legally protected — forcing the accuser to go under oath or file criminal charges, and the lawyers to defend their claims publicly.
He’s also framing the issue correctly — it’s zero sum. He’s either guilty as hell, or the accuser and her lawyers are. No middle ground.
According to the Daily Mail, Dershowitz has filed defamation lawsuits in London and the U.S., although it’s unclear how liable the accuser’s lawyers will be even if the allegations are false:
The case could fail because attorneys are advocates for their clients, not arbiters of fact, so they are entitled to believe their clients, experts said.
Amy Mashburn, a professor at the University of Florida’s Levin College of Law said: ‘The statement by the victim that it happened, without a strong reason to question it, would be sufficient.’
Stephen Gillers, a professor at NYU School of Law said: ‘Being false alone is not enough.
‘What a disciplinary committee would have to show is that they either knew the allegations were false, or they were reckless in making the charge.’
Mr Gillers said there was no firm standard for what it meant to be reckless. While attorneys have an obligation to investigate allegations before making them, such an investigation need not be as thorough as the fact-finding that later happens in court, he said.
Cassell and Edwards would be more likely to face punishment if a disciplinary board concluded that they knowingly lied. Ms Mashburn said that would be a very serious fraud that would be a breach of several ethical rules.
Even then, she said, they might only face suspension.
(Prince Andrew also absolutely denies the charges.)
Because we are all so jaded, I can’t say definitively that Dershowitz is innocent.
I can say that Dershowitz should be presumed to be innocent until the accuser and her lawyers stop hiding behind the privilege that attaches to court pleadings, and put themselves at legal risk should the accusations be false.
UPDATE: Dershowitz has filed a Motion to Intervene and Affidavit in the Florida case in which the allegations were made. The full motion and affidavit are embedded below. He completely denies the allegations with great specificity.
Dershowitz also makes a point I made above about the tactic of using court filings as a shield:
9. I believe and allege that Jane Doe #3’s lawyers deliberately inserted this false and defamatory charge, which they knew or should have known to be false and defamatory, in a legal pleading that does not seek an evidentiary hearing or provide for any other opportunity for me to respond to, rebut or disprove their knowingly false charge. They placed it in a legal proceeding, in a public filing, in bad faith in an effort to have the media report it, while they attempt to hide behind claims of litigation and journalistic privilege. I believe and allege that their bad faith purpose was to have this false charge made public, while attempting to deny me any legal recourse. There is no realistic possibility that this pre-New Year’s filing would have been picked up by the media had they or someone on their behalf not deliberately alerted the media to its existence.
And, further UPDATE 5:55 p.m.:
Via The Wall Street Journal, the accusers lawyers have sued Dershowitz for defamation:
Alan Dershowitz has vowed to slap a defamation suit on the two lawyers who claimed in a court document that Florida financier Jeffrey Epstein arranged sexual liaisons for him with an underage prostitute.
Those lawyers have beaten him to the punch.
Paul Cassell and Bradley Edwards, who represent a woman claiming she had “sexual relations” with Mr. Dershowitz at Mr. Epstein’s direction, have filed a defamation lawsuit against Mr. Dershowitz in Florida circuit court, according to Mr. Cassell.
States the lawsuit:
Immediately following the filing of what the Defendant, DERSHOWITZ, knew to be an entirely proper and well-founded pleading, DERSHOWITZ initiated a massive public media assault on the reputation and character of BRADLEY J. EDWARDS and PAUL G. CASSELL accusing them of intentionally lying in their filing, of having leveled knowingly false accusations against the Defendant, DERSHOWITZ, without ever conducting any investigation of the credibility of the accusations, and of having acted unethically to the extent that their willful misconduct warranted and required disbarment
It cites an interview that Mr. Dershowitz gave to CNN International in which he called Messrs. Cassell and Edwards “sleazy, unprofessional, unethical lawyers” who should have known that their client is “lying through her teeth.”
Told of the lawsuit on Tuesday, Mr. Dershowitz told Law Blog that he was “thrilled” by the development, “This gives me a chance to litigate the case. I can expose their corruption,” he said. “I can show how fraudulent the allegations are. This makes my day.”
Mr. Dershowitz said the lawsuit will allow his lawyers — among other things — to depose Messrs. Cassell and Edwards and their client, a woman identified in court papers as Jane Doe #3.
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