Bang ’em For The Dersh

One of the coolest things about getting older is that if you garnered any name recognition from the early, glory days, you can parlay that into a mainstream platform for the most idiotic, self-serving nonsense imaginable.  And Alan Dershowitz is still sipping a long, cool glass of Sunny Delight.

But, but, but . . . ME?!?

In an op-ed in the New York Daily News, the Dersh explains his pet peeve:

Recently, my wife and I were strolling on the Upper East Side when a taxicab, driving well in excess of the speed limit, made a sharp turn and came within inches of hitting us as we approached the corner.

As the cab sped off, I called 911 to warn about a speeding and reckless driver heading up Third Ave. The operator asked me one question: “Was anybody hurt?” to which I responded, “Not yet.” She said she couldn’t do anything unless someone had been injured and implied I had misused 911 by calling about so harmless an issue.

Nobody frightens the Dersh’s woman and gets away with it.  He’s a man with power, and when he tells the NYPD to jump, well.  But was it just that they wouldn’t round up every taxi on Third Avenue on his command? Oh no. Not at all.

I have become sensitive to this danger since my sister-in-law was killed by a mail truck driver. Whenever I call, I’m asked the same question, give the same answer and sense the same disdain.

Those callous bastards. In a City with 8,000,000 people, whether walking across the street at will or taking the obligatory 14 minutes to drive a city block in traffic, there is only one real question: what’s best for Dersh?  And he lets us know.

This, in a nutshell, summarizes the difficulty of dealing with reckless city drivers who endanger pedestrians. No one seems to care until someone is killed — and even then, the law makes it difficult to hold drivers accountable. This is especially true in New York where, according to a Wall Street Journal study, “drivers are rarely charged criminally if they kill another person . . . because New York’s vehicular homicide and manslaughter statutes apply only to motorists who are drunk or on drugs.”

Only about 5% of city drivers who kill pedestrians are charged with serious crimes. The driver who killed my sister-in-law was not charged with homicide. He was accused of leaving the scene and was acquitted.

Wait? He was acquitted?  Um, Dersh, as a Harvard Law professor, teaching criminal law, it’s kinda likely that you appreciate the meaning of the word “acquitted.” As in, not guilty?  So that makes him, in your mind, really guilty? Because it involved your sister-in-law, and that touches your life, and suddenly the entirety of criminal law bends to meet the Dersh’s desired outcome?

New York City is a tough place. It’s tough for pedestrians. It’s tough for drivers. And let’s not even talk about bicyclists, who everybody hates, including the Appellate Division, First Department.  There are way too many people stuffed into way too small an area.  It would be far less congested if people stopped coming there, like those who come down from Cambridge to buy a Sutton Place townhouse. If you don’t like the way New Yorkers do things, then there’s always Beacon Hill, you know.

But where do you come off trying to start a jihad against New York drivers?

The logic behind the roulette wheel approach is that by imposing harsh punishment on those few dangerous drivers who actually kill, the law deters all dangerous drivers. But experience shows this doesn’t work, because few drivers expect to kill and even fewer expect to be successfully prosecuted if they do. Clearly the law would buy more deterrent bang for the buck if it vigorously prosecuted every reckless driver, regardless of whether they happen to kill.

So arrest every driver who comes too close to the Dersh and his woman? So criminally prosecute drivers who have accidents? Not enough criminalization for you?

A compromise might entail adding other dangerous activities — such as texting and speeding — to the current short list (being drunk or drugged) of factors that turn a deadly accident into a homicide.

Compromise? You keep using that word but I don’t think it means what you think it means.

No one suggests that the death of a person, any person regardless of their relationship to the Dersh, isn’t terrible and consequential.  But to urge mass criminalization of drivers because you don’t like the way they drive is utterly insane. Mens rea, Dersh. You remember mens rea, right?

The most serious cost of zealously enforcing dangerous driving prohibitions before anyone is killed is that it enhances the growing power of what has come to be called “the preventive state” — governmental action that compromises privacy for prevention.

Are these costs worth the benefits of a more proactive and preventive approach? When it comes to dangerous driving, where privacy interests are minimal and safety concerns considerable, the answer is yes.

These aren’t evil people, but people trying to navigate through a city with its own set of rules.  Notice that pedestrians aren’t exactly focused on whether they have a green light?  Sure, it’s not the subtle niceties of Cambridge, but for those of us who spent our gravy years walking around Manhattan without a scratch, it’s really not that hard to co-exist in New York City.  It helps, of course, to keep your eyes on the road and your head out of your ass.




29 comments on “Bang ’em For The Dersh

  1. Eric L. Mayer

    I liked Dershowitz much better when he engaged in sincere, peer-reviewed, thoughtful dialogue on the Morton Downey Jr. Show.

  2. Lurker

    I really don’t get this. The US is famed for its draconian criminal law, but only 5 % of drivers involved in deadly accidents are prosecuted?

    In Finland, almost accident where a person is injured will result in criminal punishment. For example, a woman in my neighbourhood drove over an elderly man who was getting his mail. The lighting was terrible and it was slippery, but still, she should have driven more carefully. No speeding was involvesd. She was convicted of manslaughter and sentenced to 30 day-fines, meaning essentially 50 % of one monthly net income, but at least 210 euros.

    That is justice, I say. She was guilty of causing a death and the sentence was proportional with the guilt. Sentences like this coming with the regularity and unavoidability of juggernaut are much better in preventing casual carelessness than a small number of long jail sentences.

      1. Lurker

        The logic is clear, if terrifying. The Road Traffic Act states: Any road user shall obet traffic rules and pursue other necessary care and diligence as is necessary in the circumstances to prevent danger or damage.

        This means that any accident is, by default, evidence that some road user has neglected their duty, barring cases where the accident results from mexhanical malfunction or lacking road maintenance. Further, it means that in any traffic accident, at least one party is guilty (and their insurance pays all human damges and innocent parties’ material damages). Such guilty party will inevitably receive a fine for endangering the road traffic. This is, somewhat surprisingly, so ingrained in the popular understanding of justice that nobody questions it. (And also: unless there is a guilty party, there is no insurance to pay the damages.)

        On the other hand, the penalties are relatively light. For example, the case I mentioned was a total prosecution victory. The defendant’s sentence was the prosecutor’s demand. If you consider that this was, after all, a homicide case, the sentence was mild. In addition, the defendant was never arrested. She was, most likely, interrogated immediately at the accident site and then, at later time, when it suited the investigator, at the police station.

        I would say that most adult Finns have, as a result, at least one traffic fine. No one achieves perfection, but as long as the law is enforced evenly and with lenient penalties, it is OK to criminalize imperfection. It just means that everyone (myself included) gets a well-earned fine now and then.

        1. SHG Post author

          I think I may have been unclear when I used the word “fascinating.” What I meant was, nobody here cares, but I was being nice. Nobody, but nobody, comes here for a dissertation on Finnish law. My apologies.

          1. Wheeze The People™

            I was once asked if I was Finnish. Being the honest guy I am, I had to admit, “Hey man, I haven’t even started yet. Sorry Jussi (a common Finnish male name), I’ll get started sooner next time . . .”

        2. AlphaCentauri

          Actually, I thought it was interesting. Our law is actually similar, but we don’t use terms like “criminal” or “homicide” for events like this. We have things called “moving violations” like speeding or running red lights, which can lead to fines or loss of one’s drivers license, but not incarceration.

            1. Patrick Maupin

              No, what it seems similar to, and is presumably a replacement for, is some punishments previously meted out by the church. I suspect that most civilized people won’t sleep very well after inadvertently killing their neighbor, and that many of those will find solace (and perhaps slightly better sleep) after being punished by a neutral party for their transgressions.

              I imagine this works well if the court is respected and its judgement is presumed righteous. Here, if I inadvertently ran over someone, there would be no criminal repercussions, but the civil repercussions could drag on for years and likely bankrupt me. And, in many cases, a lot of the reason for that would be that the victim’s family wouldn’t feel that justice was done until I was made to pay, and of course all the lawyers involved would need to get paid as well. I don’t know how the civil stuff works in Finland, but if being adjudged guilty and forking over a couple of thousand dollars would forestall the necessity of a civil suit, I’d gladly pay that fine.

  3. John Barleycorn

    I’ll be damned esteemed host, if you don’t enjoy the feel and texture of a cats-eye marble stolen from a child in the oiled leather pouch of your slingshot when a perfectly tight but dangerously tactile and nearly rounded duck taped M-80 surrounded with lead buck shot is a more figuratively and literally perfect projectile.

    Even if it barley misses the yoke on delivery and double tags some graffiti with spit during trajectory.

    Who are these fucking people?

    Your world Dershowitz!

    My oh my… Why am I wanting Philip Seymour Hoffman’s ghost to magically smash Alan’s phone on the curb the next time he hits his memory 911 redial in anticipation of a near death experience as he feels the chill of a heroin junkies rush via the sunlight reflecting off a silent electric cab doing 45mph as it’s driver attempts to dial his cell phone while a blasting through the intersection with a sitar base riff pounding the skyscraper canyons through open windows.

    Just as he strokes out
    his wife stabs him with a Narcan* shot before his good deed anger blood clots stun him with a dose of reality that melts him.

    *(Yes I know Narcan has nothing to do with blood clots. But trade name or not don’t get high alone and add it to your kit if you are amongst those that gotta have that high)

    Perhaps while Alan is regaining consciousness just as his wife helps him to the elevator, the haunting theme song of The Good The Bad & The Ugly will be playing in some twisted happy Disney remake as he rides to his penthouse fundraiser establishing a world fund that revolves around institutionally establishing Alan’s concept of longevity,
    safety, and the proper screening of inhabitants allowed into the metropolis.

    1. SHG Post author

      I was thinking more Hava Nagila, but I guess it’s all according to whose camera is turned on that day.

      1. John Barleycorn

        You should really consider putting a go-pro camera on your dog and posting the video of you doing dance interpretations between paragraphs if you are going to go that route.

        1. SHG Post author

          If I hadn’t strapped my go-pro to my pet falcon (and the bastard flew off with it), I would definitely do this. If only Dersh would do an interpretive duet with me.

          1. John Barleycorn

            I will play along and donate handsomely with conditions.

            Alan comes out on stage as Kahn Master Academy pontificating on the brewing geographical linguistics dangers of NYC’s neighborhoods and boroughs.

            You go all My Dinner With Andre on him from Wallace’s perspective as though Wallace were a reincarnation of Genghis the other Kahn.

            Topic of discussion is Woodrow Wilson’s sex life.

            There must be singing, a brief synopsis of 19th century African history, and an open bar at intermission.

            Thirty foot square photos of Prince William perfectly lighted in the back drop.

            AND…You can bring your falcon as long as Chelsea Clinton Mezvinsky is not sitting in the first twenty-one rows.

  4. Richard

    I had almost identical situation with Uber driver on Lex and 53. All we saw was Uber sticker and the driver that almost hit us sped off like crazy. Who do we complain to about Uber driver violations?

    1. SHG Post author

      Send your complaint to [email protected]. Include a sworn written statement, pictures, bills for any psychiatric treatment and damage to clothing, as well as proof of citizenship. While not mandatory, a brief description of your religion and observant status would help.

      1. Patrick Maupin

        The question is, will Harvard watch what the Houston city attorney is doing and think that’s a good idea?

  5. AH

    Maybe the cab driver was rushing someone else’s sister-in-law, who had just been hit by a mail truck, to the hospital. Maybe if Mr. Dershowitz’s sister-in-law’s ambulance hadn’t been driving at 25mph and had actually exceeded the speed limit, she would have survived. But wait, are you saying when it was Mr. Dershowitz’s sister-in-law in the ambulance, speeding was warranted? What a surprise.

    1. AH

      I am now feeling some guilt for what might be considered to be making light of Mr. Dershowitz’s sister-in-law’s death. I did not mean to be disrespectful and I’m sure it was incredibly tragic for all involved. My intention was only to point out the self-centered nature of Mr. Deshowitz’s complaint.

        1. John Barleycorn

          As I recall she fell off her bike in the normal course of business got ran over by the mail man who later connected the dots.

          He stood trial for leaving the scene not manslaughter and was found not guilty with very little need for the jury to waste any time pondering the prosecutions case.

          Insensitive is playing with the ghosts of the dearly departed on Alan’s part when the grave has not even had enough time to settle.

          But fuck the details. It’s a dangerous world out there and someone is responsible?

            1. Patrick Maupin

              In America, we have the right to live forever. If we don’t, it must be someone’s fault.

  6. Andrew

    Points taken but it would still be nice if the DAs offices took pedestrian deaths a little more seriously.

    1. SHG Post author

      That someone dies doesn’t make conduct criminal. It’s the conduct, not the outcome. The problem isn’t that they aren’t taken seriously, but that they aren’t crimes.

  7. Bob

    This stuck out for me, jaded and cynical lawyer: “and came within inches of hitting us as we approached the corner…”

    Who had the right of way? Dersh or the cabbie? There are an increasing number of crabby and ageing Americans who still think the world should rotate around them. The rest of us just look both ways before crossing the street.

    1. Patrick Maupin

      Have you seen the size of some of those crabby, aging Americans? The world practically does revolve around them (gravitationally speaking, of course).

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