Desperately Dershowitz

There was a time when Harvard criminal law professor Alan Dershowitz was considered a radical, espousing some wild views that garnered him significant media attention.  He was young then, but the warm glow of the klieg lights is hard to forget.  Dershowitz may be older now, and hardly radical, but apparently he misses the attention.

This is inescapable conclusion from this otherwise pointlessly self-aggrandizing effort that appears in The Daily Beast entitled “Alan Dershowitz convicts DSK.” 

The theater-style, fluorescent-lit classroom at Harvard University’s law school was virtually silent on a crisp fall afternoon. And why not? It’s not every day that law students get the chance to see one of America’s most famous defense lawyers assume the role of prosecutor.

There, in the pit of the classroom, Alan Dershowitz was in effect holding court as one of Manhattan District Attorney Cyrus Vance’s bulldogs, making the prosecution’s closing arguments to jurors in the sexual-assault trial against Dominique Strauss-Kahn that never was. Dershowitz was convinced he could secure a guilty conviction, even with the victim’s credibility problems. And he was intent on teaching his students a lesson on how a courageous prosecutor could divert a jury from the weaknesses of his star witness to focus on the evidence of a sexual attack and the preposterous defense of an elitist Frenchman.

Let’s be clear. There is nothing wrong, nothing, with taking the side of the prosecution in any given case. The defense does not sit at the right hand of God, and sometimes, often actually, the prosecution is not only right in its position, but doing the job we ask and need of it. These aren’t football teams where we each root for our favorite, and there’s nothing wrong with agreeing that the other side deserves to win. Sometimes.

But that’s not what Dershowitz is doing here.  He’s putting on a show for all to see. Hey everybody, come watch Dershowitz, “one of America’s most famous defense lawyers assume the role of prosecutor.”  Was the use of the word “assume” deliberate?

According to Dershowitz, Sofitel lawyer Lanny Davis sought him out, desired his approval, even though the New York County District Attorney’s office had already decided not to proceed.  You know, because obtaining the approval of Dershowitz is almost as good as reality.

Davis was convinced after lobbing hard questions at Diallo during a two-hour interview on July 18 that the housekeeper was mostly telling the truth about what happened in Strauss-Kahn’s hotel suite back in May. And after carefully reviewing the evidence from the hotel—especially the time stamps on the hotel security logs and the outcry witness testimony of Diallo’s hotel colleagues—he was certain prosecutors were mistaken in some of their claims that Diallo had changed her story. He saw problems with the investigative work and understood the communication gaps that a shy Guinean immigrant might face when confronted by New York’s grittiest prosecutors in the pressure cooker of a court case with international consequences.

How one “lobs” hard questions remains unclear, but as every lawyer knows, there’s nothing more persuasive than a one-sided story.  And Dershowitz was persuaded.  So what was his next move?

Soon after, Dershowitz called me [writer John Solomon] up at Newsweek to describe his change of heart. He was willing to go on the record saying so.

Memo to John Solomon: When someone calls you to tell you that they have a thought that no one cares about, it’s really not accurate to describe them as “willing to go on the record.”  It’s more like desperate to get you to write about them.  Just sayin’.

Having stood on the diving board screaming to everyone in earshot to look at him, now Dershowitz had to make a splash.  He came up with a stroke of genius.

And he wanted to do one better. For weeks he had been looking for a fresh subject for his fall legal-ethics class at Harvard. Now he had a theme: how would you, America’s future lawyers, handle the DSK prosecution?

“Ladies and gentlemen of the jury,” he started, “we have enough evidence to convict this man beyond a reasonable doubt even if you don’t believe the accuser. In fact, we are prepared to concede that based on statements she’s made in other contexts, you would be within your right to have some suspicions about her credibility.”

How cool is that, an exercise in contrarian pedagogy that happens to find a friend in a Newsweek reporter?  Dershowitz gets to grad a headline and claim he’s only doing it for the children.  This is the stuff that small, rural congressional races and unconstitutional state laws are made of.

And so he indulges in the classroom exercise, surrounded by his doting students, and argues the strawman of Lanny Davis’ making.  Because, you know, it’s not like there could be any argument that the defense might make that could counter the persuasiveness of Dershowitz left to his own devices.

The post goes on for pages of Dershowitz arguing on his own.  The initial concession, that the “victim” had a credibility problem, disposes of the entirety of the defense, and makes the balance eminently fair and reasonable.

So where did Vance’s team go wrong with Strauss-Kahn? Dershowitz says Vance “accepted a general rule that you can’t win a sexual-assault case unless you believe the victim, and I believe that is a flawed analysis.” Second, prosecutors failed to realize that had they taken the DSK case to trial, “his defense would have sunk him. Then it would become a case of who is more likely to be lying. And jurors would ultimately see he’s much more likely to be lying even if she is a liar on other counts,” he said.

No need to ponder whether “much more likely” is sufficient to surmount the “beyond a reasonable doubt” threshold.  Dershowitz has pigeonholed both sides, and there can be no one more reasonable than he, particularly as he’s characterized the defense as seven minutes in heaven.

“Now the theory of the defense is that she looked at him and could not resist her lustful temptations to have seven minutes of oral sex with this man. She simply couldn’t control herself,” he continued, a touch of sarcasm in his voice.

Sarcasm is easy when there’s no one arguing against you. He ridicules the notion that a young, attractive hotel housekeeper could find a flabby old man attractive. He ignores that DSK is a flabby old fabulously wealthy and powerful man.  And that’s just assuming that the issues don’t stray from Dershowitz’s strawman.

A continuing theme for lawyers inclined to spout publicly is that they not leave readers stupider for having been there.  Unfortunately, as people become more desperate for attention, more needy for the spotlights that once shined on their ideas when they had something to offer, their concern about such existential concepts often takes a backseat to just one last headline.  Dershowitz got his headline here, but we’re all the worse for it. 

Everybody watch Alan Dershowitz put on a play. Sadly, it was in the theater of the absurd.

2 thoughts on “Desperately Dershowitz

  1. Dan

    When Dershowitz, a law professor, speaks on such a topic, I presume he does so with decades of experience handling these issues every day, in real courtrooms with real witnesses and clients and therefore I find him not only credible, but authoritative on this subject.

  2. SHG

    Unlike most profs, he’s spent some time in the well (though not quite the same trench that the rest of us wallow in). But then again, that hasn’t dampened his appetite for the spotlight any. Most of us couldn’t get a Newsweek reporter on the phone to promote ourselves if our lives depended on it, and he’s got the number on speed dial.

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