Alan Dershowitz, Law Professors, Sex Scandals

In Search Of Balance In Dershowitz v. Cassell

Retired judge Nancy Gertner takes issue with Tamara Tabo's recent column about Alan Dershowitz.

By Judge Nancy Gertner (Ret.)  
on

Ed. note: This post is by the Honorable Nancy Gertner (Ret.), whose full bio appears below.

In a recent column about allegations leveled against Harvard Law professor emeritus and criminal defense lawyer Alan Dershowitz, Professor Tamara Tabo initially admonishes us to be skeptical about Jane Doe #3’s accusations. 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.

First, she suggests that these accusations are credible because of the respectability of the lawyers representing Jane Doe #3; the author then describes Professor Cassell’s academic and professional credentials, including his service as a federal judge. I know both Professors Cassell and Dershowitz professionally and indeed, as friends. I respect them both. I have known Professor Dershowitz for forty years, as co-counsel and colleague, and Professor Cassell from when both of us were on the bench and since then in our work on federal sentencing.

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. In fact, although the author may not mean to, Tabo’s comments come perilously close to saying that just because Professor Dershowitz represented Jeffrey Epstein he must have been complicit in Epstein’s acts.

Second, Tabo writes about the pleading’s “terse formal accusations,” which she also describes as “direct and specific.” But she makes no mention of Professor Dershowitz’s direct and specific responses to the charges – offering to provide documentation and witnesses of where he was when.

Third, 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.

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.

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Earlier: A Second Look At The Allegations Against Alan Dershowitz
Alan Dershowitz Fights Back Against Allegations Of Sexual Relations With A Minor

Judge Nancy Gertner (retired) served as a United States District Court Judge for the District of Massachusetts from 1994 to 2011 and taught at Yale Law School from 1999 to 2011. She is now a Senior Lecturer on Law at Harvard Law School and special counsel to Neufeld Scheck & Brustin, LLP. She is the author of In Defense of Women: Memoirs of an Unrepentant Advocate (affiliate link).

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