Does Alan Dershowitz Have A Proof Problem?
Columnist Tamara Tabo wants to know: When will Professor Dershowitz put all his cards on the table?
Alan Dershowitz, Harvard law professor emeritus and legal legend, has defended himself loudly and often since being accused in January of sexual misconduct with an underage female. But does he have a proof problem?
Lawyers Brad Edwards and Paul Cassell think so. They represent victims of financier Jeffrey Epstein who are suing the government under the Crime Victims’ Rights Act. One of Epstein’s victims, known in court documents as “Jane Doe #3” and identified in the media as Virginia Roberts, alleges that Epstein compelled her to have sex with Dershowitz while she was still a minor. Dershowitz has since moved to intervene in the CVRA suit in order to clear his name. Edwards and Cassell also filed a defamation suit against Dershowitz because of his public criticisms of them, and Dershowitz has since counterclaimed.
Edwards and Cassell are now arguing that while Dershowitz continues to call their client a liar, he has yet to produce specific evidence to bear out his accusation . . . in either suit.
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Dershowitz’s lawyers argue that Jane Doe #3 (aka Virginia Roberts) waited too long before accusing Dershowitz and attempting to join the CVRA suit. They argue that it’s unfair to him for the court to consider Virginia Roberts’s allegations against him now, since “he would have been in a far better position to secure travel and other records needed to disprove these charges” if she had not waited so long.
On March 24, Edwards and Cassell filed their latest response on behalf of their clients in the CVRA suit, continuing to oppose Dershowitz’s intervention in the suit. They call out Dershowitz on his laches argument. They point out that:
“Dershowitz has already told worldwide news media that he has already collected all of the records and can provide irrefutable, documentary proof that Jane Doe No. 3 is lying. For example, Dershowitz has told the Boston Globe that ‘he will use his travel and credit card records, which he said he has fastidiously saved, to refute the allegations against him.’”
Edwards and Cassell go on to claim that Dershowitz has also not yet complied with discovery requests in their related defamation suit against Dershowitz. In that state court suit, counsel for Edwards and Cassell filed a motion to compel production of documents on February 23. In their motion to compel production in the defamation suit, Edwards and Cassell claim that Dershowitz has so far refused to produce “any documents” to them. For his part, Dershowitz responds that “the insinuation that Prof. Dershowitz is refusing to produce documents in the state court action is not only irrelevant [in the federal CVRA action], it is false – all responsive, non-privileged documents will be produced in a timely manner, as indicated in Dershowitz’s responses.”
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The motion to compel in the state case remains pending. You can read Dershowitz’s Objections and Responses to Edwards and Cassell’s Initial Requests for Production and decide for yourself whether they are sufficient.
To be fair, many people would have a hard time assembling proof of where they were and what they were doing at some particular time years ago. But Dershowitz suggested to the media that he already had the proof at hand. Moreover, he insisted that part of what made his opponents’ conduct so egregious was that they could have easily come up with that evidence themselves if only they had responsibly investigated their client’s story.
Three months ago, when the story first hit headlines, Dershowitz told CNN, “If they [Edwards and Cassell] had just done an hours’ worth of work, they would have seen she is lying through her teeth.” He told the Today Show:
“Her lawyers Paul Cassell, a former Federal judge and Brad Edwards, deliberately and willfully filed this pleading which they knew I had no opportunity to respond to in court, without doing any investigation, if they had simply investigated the manifests of the airplanes, if they had checked my travel records, if they had asked me and I could have given the names of these people who are witnesses, they would know the stories, totally, completely false.”
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“They [Edwards and Cassell] did it for crass financial and political reasons. More to the point is [what] they didn’t do… I did the investigation in a day and was able to prove through all kinds of records that I couldn’t have been in these places. The woman is a serial liar. If they had done that investigation, they would have come to the same conclusion.”
These public comments, and numerous others like them, are troublesome for Dershowitz for two reasons.
First, they give the impression that Dershowitz was prepared months ago to produce just the sort proof that he has so far refused to provide in the discovery process. If Dershowitz had documentary evidence to prove his innocence all the way back in January, why hasn’t he shared it with the court yet?
Second, Dershowitz repeatedly chastised Edwards and Cassell for not doing the easy, obvious research that they were obligated as attorneys to do. If getting hold of evidence that would disprove Virginia Roberts’s allegations was as easy as Dershowitz said, why hasn’t he produced that evidence yet? And if it is actually quite difficult and time-consuming to amass the evidence, why did Dershowitz malign his opponents for not finding it? Either Dershowitz looks bad for not producing the documents or Dershowitz looks bad for trash-talking Edwards and Cassell, which strengthens their defamation claims against him.
What’s going on? If Dershowitz has the proof he’s promised, why hasn’t he offered it up yet, either in the CVRA proceedings with Virginia Roberts or the defamation battle with Edwards and Cassell?
Perhaps there are strategic considerations at work. As noted civil-liberties lawyer Harvey Silverglate recently suggested, Dershowitz might be holding back his exculpatory evidence “unless and until his accuser and her lawyers have specified, under oath, the times and places of the alleged abuse…. so that the accuser is not given the luxury of seeing the defense documents first and thus being enabled to construct detailed accusations around those documents.”
Perhaps Dershowitz hopes that the court will toss out Virginia Roberts’s joinder motion because of its own weaknesses or, less likely, simply strike the bits of Roberts’s story that mention Dershowitz. Dershowitz’s counsel has stated that:
“If the Court rejects the pending motion for joinder or the Protective Motion through which Petitioners also seek to add Jane Doe No. 3 and Jane Doe No. 4, then the Court should strike the scurrilous allegations against Professor Dershowitz, or, alternatively, determine the possible mootness of his motion for limited intervention. Of course, if the Court strikes the allegations against him sua sponte, Professor Dershowitz will withdraw his motion for limited intervention.”
If the court rejected her claim based on laches, for example, Dershowitz would no longer need to intervene in the CVRA suit. Withdrawing would free Dershowitz from the need to produce any further evidence in that suit. Moreover, he might gain some advantage in the parallel defamation suit. Depending upon why the CVRA court rejected Roberts’s claim, Dershowitz might argue in the defamation suit that the dismissal of her claim suggests that her accusations against him were, indeed, baseless. The more baseless her accusations, the closer Dershowitz gets to using truth as a defense in the defamation suit.
Perhaps Alan Dershowitz will offer the court evidence to show that Virginia Roberts is lying about having sex with him. Perhaps Dershowitz will soon produce documents in the discovery process in the defamation suit with Edwards and Cassell. But if not soon, when?
Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She currently heads the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at tabo.atl@gmail.com.
