To The Dersh’s Defense

Even though she’s not curmudgeonly enough for my tastes, Tamara Tabo is one of the few people who slum at Above The Law who is worthy of a read.  Lat’s so desperate for content to place between advertisements that he would give a trained monkey a column. When the naked lawprof mud-wrestling match between Paul Cassell and Alan Dershowitz hit the fan, Tabo hopped aboard.

Tabo took the relatively uncontroversial position that Cassell’s allegations shouldn’t be dismissed out of hand.

We don’t like rape, and we want to be really clear about that. But more and more, we find ourselves needing to make clear that we don’t like false rape accusations either. I admit that I am more skeptical now than I have ever been when an accusation makes headlines.

So, how cynical should we be about the allegations against Dershowitz? Should commentators start riffing on the idea that this is yet another instance of a woman emerging years after the fact with an inflammatory accusation motivated by greed or bitterness? Not necessarily. There are a few reasons to think that this is not the sort of sex crime claim conservative pundits (myself included) warned you about.

While I’m unclear who the “we” is, or how mailing it in to ATL makes one a pundit, the allegations are in their infancy, despite the flailing by both sides to position themselves on the side of truth and justice.  Her arguments for credibility adopt an appeal to authority, offering Cassell’s resume without much regard for how he’s wallowed in the gutter since leaving his Article III bench, but being a lawprof and former judge isn’t entirely chopped liver.

Tabo’s point was that we shouldn’t leap to the conclusion that Cassell was an incompetent lying liar, and that this was just another in what she described as a “trend” of false rape allegations.

Aside: the commentariat at ATL went nuts over this, which is understandable given that unemployed wannabes whose source of legal information is People Magazine finally had something salacious enough to stop commenting on Elie Mystal’s girth and color and focus instead on something almost lawyerish.

But the fact that Tabo bolstered the Cassell claim, even if only to say it shouldn’t be dismissed out of hand, was sufficient to get Dersh’s former Harvard Lawprof colleague, Cassell’s former Article III colleague, and everyone’s favorite former criminal defense lawyer, Nancy Gertner, to her keyboard.  I can just picture Lat’s grin when she asked for some space.

Tabo says pointedly – and I might add, accurately – that “the accuser should not be stigmatized for reporting the crime, but the accused should not be stigmatized before he has an opportunity to present evidence in his defense.” But Tabo doesn’t practice what she preaches.

Judge Gertner goes on to note how both Cassell and Dersh are her pals and great humanitarians, yada, yada, yada.

But Tabo has to separate the lawyer from the client. We have all been down the rabbit hole of a client’s allegations that – to put it mildly – did not pan out, no matter how much we believed them at the outset. And Tabo can’t value Professor Cassell’s reputation without also valuing Professor Dershowitz’s. After all, at issue here are not accusations about whom Dershowitz chooses to represent or the positions that he advocates, with which she may disagree. This is about his personal conduct, which has been without blemish for his lengthy career.

All true, and certainly there would be the presumption of innocence had Dersh been charged with anything, which he wasn’t.  But while Judge Gertner is right about the rabbit hole, we all have to be sufficiently cautious not to go down that rabbit hole just because a client says so. Every lawyer with more than 12 minutes experience knows better than to go there.

We, being lawyers (if not lawprofs and/or federal judges) do our due diligence before smearing somebody.  We gather evidence. We verify. We make damn sure we’re not going to get our butt kicked by spewing allegations about people just because a client told us so. Because we’ve all been down the hole before, and we know better than to close our eyes and blindly leap to our death.

After dabbling with the he said/she said “specificity” of the allegations/denials, Judge Gertner gets to some red meat:

Tabo doesn’t address the central issue here, about which lawyers and, indeed, the public should be concerned. This is a filing in which the naming of Professor Dershowitz, Prince Andrew, former President Clinton and others is entirely gratuitous. They are not sued as party defendants; the defendant is the United States. Putting these kinds of inflammatory allegations in a court filing all but guarantees that the allegations will be publicized, and with impunity. A court filing typically can’t be the basis for a libel suit.

Worse yet, the “accused” has no way to formally respond precisely because he doesn’t have a formal role in the proceeding. It is like an unindicted coconspirator whose reputation is besmirched in a proceeding in which he cannot participate. We shouldn’t exacerbate the problem by ostensibly validating the allegations unless — and until – there is proof of them; that’s what Tabo said at the outset of the piece.

And therein lies the most damning bit against Paul Cassell, that this was a cheap shot, a needless shot, to serve his client.  He and his co-counsel, Edwards, are putatively seeking recourse for the government’s violation of the CVRA, and neither Dersh, Prince Andrew nor Bill Clinton has any role to play there. That they were named is inexplicable and inexcusable, at least from a legal perspective.  For the salaciousness and media exposure factor, they were perfect.

The bottom line is that indirectly and under the guise of fairness to both sides, Tabo repeats Professor Cassell’s accusation that Professor Dershowitz engineered Epstein’s plea agreement to insulate himself from prosecution, an extraordinary accusation, and not Professor Dershowitz’s accusation that the reason his name (and the names of other high-profile men) was inserted into this filing — when it did not have to be — was to force some kind of a monetary settlement. Again, I know both Professor Dershowitz and Professor Cassell. If you report on one side, you need to report on the other.

Aside from the fact that Tabo wasn’t reporting, but commenting (pundit, remember?), what has proven most interesting, and problematic, is what will come of this madness, as there doesn’t seem any way both Cassell and Dersh can emerge from this case unscathed. Somebody is going to crash and burn here, eventually. Particularly since Cassell has now sued Dersh for defamation, giving rise to an independent action where the two can punch each other without mercy.

Judge Gertner’s response to Tabo offers the first glimmer of reconciliation, that Cassell might have been “inadvertently” sucked down the rabbit hole by Jane Doe #3.  But she doesn’t buy it, and neither can anyone else who has ever represented an actual client.  That Cassell named names for no legitimate reason casts him in a negative light from the outset, which isn’t hard to believe given what he’s done since leaving the bench.

Somebody is going to get crushed by this case, and while Judge Gertner isn’t going to be the one to do it, she also isn’t going to stand by and let it be Dersh.  After all, Tabo’s post just wasn’t that big a deal otherwise, so for Judge Gertner to pull on her hip boots and wade into ATL over this means that the sides are lining up among the judiciary and academia. This is going to be fascinating.

9 thoughts on “To The Dersh’s Defense

  1. bmaz

    Dersh is about the last person in the world I am really inclined to defend. And, yet, after about the first five minutes of salacious glee at reading the story, that is what I have felt and said. The cheap shot gratuitousness of the Doe 3 allegations is just ridiculous, as noted. Stunningly so. And in a legal vehicle with no particular remedy for any of the Does at this point. All of the Does have entered civil settlements with Epstein and the statutes appear to have run absent some convoluted continuing conspiracy theory as to anybody else.

    They want the NPA set aside. Why? Do they really think DOJ, or any state authority is going to actually run out and file charges even if it is set aside? If so, they are nuts. So, maybe I am missing something, but this was not just scurrilous and gratuitous pleading, but done with no viable goal. If – if – Dershowitz is innocent, then how else is he supposed to defend himself? What would you do in his shoes? Were it me, I think I might be every bit as fuming and apoplectic as Dersh.

    1. SHG Post author

      I agree completely, and am similarly disinclined to say anything nice about Dersh. Cassell’s play was not just cheap, but deep into sleazy. I just wish Judge Gertner would have called it what it was. I doubt her response had anything to do with Tabo, who was just the vehicle for making this point about Cassell.

      As Ken said on the tweeters, “Orville Redenbacher stock rises 200%.” Yum.

  2. Alex Bunin

    When you compare those two professions to chopped liver you neglect to mention your high esteem for that Jewish pate. I have seen it myself.

  3. David Sugerman

    Judge Gertner’s explanation is a straw man. She is offering a rookie lawyer mistake as an explanation for Cassell going nuclear. Cassell could not be that naive. I suspect Judge Gertner is simply trying to maintain an aura of restraint. This leads me to wonder whether there is some history or backstory between Dersh and Cassell. Grabbing another beer and resettling into my lawn chair.

  4. DHMCarver

    While the prospect of a “naked lawprof mud-wrestling match between Paul Cassell and Alan Dershowitz” (though that image makes me shudder) is delightful, I cannot help but be bemused at all of the hand-wringing about whether Dershowitz is being wrongly accused, innocence until proven guilty, etc. Seems to me that often whenever a member of the white, male establishment gets caught in the morass of the legal system, there are scores of voices trumpeting the need to maintain neutrality until the facts sort themselves out. (See also: Bob McDonnell). But when it is someone of the lower orders, or of darker hue, that paramount need for neutrality seems to dissipate.

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