Sunday, January 11, 2015

Something About Dershowitz Doesn't Pass The Smell Test

By Victor J. Ward

Last year, I wrote a post entitled: "What Bill Cosby Should Have Done."

In short, I argued that Cosby should have gone on the legal and verbal offensive if he wanted to show and prove his innocence.

Alan Dershowitz is providing a real-life example of that post: Dershowitz went on the verbal attack by doing interviews. He went on the legal attack by filing disbarment papers and by filing his own declaration. He even stated: "I waive the statute of limitations. Charge me with rape!" (More on this, below.)

As George Orwell once said, "If someone drops a bomb on your mother, you drop two bombs on their mother." Someone tried to drop a bomb on Dershowitz, and he has responded accordingly.

The two attorneys that Dershowitz is targeting, Paul Cassell and Bradley Edwards, are also being aggressive: They filed a Defamation claim against Dershowitz.

Cassell and Edwards filed their case in State court. Dershowitz will try and remove the case to Federal court. If Dershowitz is successful, then Cassell and Edwards lose their home-cooking advantage.

As an attorney and as someone who likes to eat popcorn and watch two sides fight to the bitter end, I applaud both the aggressive nature of Dershowitz and Cassell/Edwards.

What troubles me about the Dershowitz denials comes from the article in the NationalReview.Com that was linked to in a Target Liberty post ( The National Review article made the following statements:

1. Dershowitz claims that he never had sex with the lady on Epstein's Caribbean Island.
2. Dershowitz claims that he never had sex with the lady in Epstein's New Mexico home.
3. Dershowitz claims that he never had sex with the lady on Epstein's plane.
4. Dershowitz claims that he never had sex with the lady in Epstein's New York home or Epstein's Palm Beach home.

The problems with Dershowitz' denials are:

1. The lady never claimed to have sex with Dershowitz on a Caribbean Island; it was the US Virgin Islands.
2. The lady never claimed to have sex with Dershowitz in Epstein's New Mexico home. She claims that the sex happened somewhere in New Mexico.
3. The lady said that she had sex with Dershowitz on private planes. She did not specify that the planes were owned by Epstein.
4. The lady claims that she had sex with Dershowitz somewhere in New York and Florida, not specifically Epstein's homes.

Why is this a big deal? Lawyers are paid to parse words. That's why some in the legal profession applauded Bill Clinton's: "It depends on what the meaning of "is" is." There are millions of dollars that have been lost because someone used the wrong word in a contract. In a Canadian case, one comma cost one of the legal parties over $800k. Small things mean a lot in the legal arena, and there are huge battles about what a word actually means.

Not recognizing that there is a difference between "Epstein's plane" and "private plane" is a big deal.

Dershowitz went to Yale Law School and he now teaches at Harvard Law School. He has a team of crack attorneys that work for him and around him. There are only two reasons that he made the above-mentioned mistakes:

1. He was sloppy. If Dershowitz and Team are this bad, then this should forever affect his reputation/their reputations. (It won't, but it should.) These are some major mistakes. At the very least, he should fire several people for this kind of incompetence.

2. He intentionally erected a straw-man so that he could knock it down. If Dershowitz did this, then we must ask, "Why?" Why didn't he deny the specific allegations? Why did he feel the need to lie about what the woman said just so that he could deny something that he knew was not true?

Finally, let me say something about his statement: "I waive the statute of limitations. Charge me with rape!" At first blush, I thought that this was a statement that was bold and powerful. But, maybe not.

The statute of limitations (SOL) is viewed differently in different jurisdictions. In some places, the SOL is an affirmative defense. In other words, the Defendant, in this case Dershowitz, would have to use the SOL in his trial as part of his defense. In these instances, if Dershowitz waived the SOL, his waiver would mean something.

Other jurisdictions, however, view the SOL as a Court-ordained protection. In these states, Dershowitz can say, "I waive the SOL" all he wants. It's not his privilege to waive. The prosecution cannot bring a case against the defendant after the SOL runs, regardless of what the defendant says.

I don't know where a rape charge might be filed against Dershowitz, so I have no idea about how that state views the SOL. But, Dershowitz' bold proclamations, while at first seeming strong and powerful, appear to be cracking just a little bit.

Regardless of what happens, heed the advice of Target Liberty: Get your popcorn ready.

Victor J. Ward is a long-time EPJ reader, who first came across libertarianism by reading Murray Rothbard's Ronald Reagan: An Autopsy and Walter Block's Defending the Undefendable.. At first  the writings of Rothbard and Block shocked him, but after thinking about it, he realized that Rothbard and Block were right.

1 comment:

  1. Great post Victor,

    Here's another lawyer-ism; the performative verb, with a well known example:

    In this clip, listen to what is being said EXACTLY. President Clinton is saying, "I want to say one thing to the American people," and, "I want you to listen to me, I am going to say this again..."
    What he says after that setup can be anything, because all he is expressing is his desire to SAY ONE THING, and for his audience to LISTEN. I know this is really splitting hairs, but as you point out, it is what lawyers do, and it is what many "leaders" do. Once you know how to listen for these performative verbs, you will notice how often it is used by political leaders when trying to work themselves or their associates out of tight spots.