Defamation, Depositions, Law Professors

Is This What 'Exoneration' Looks Like To Alan Dershowitz?

Columnist Tamara Tabo opines on the deposition of Alan Dershowitz in his litigation with Paul Cassell.

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[I’ve posted the transcripts from the depositions of Alan M. Dershowitz and Paul G. Cassell. Readers can review the evidence and decide for themselves whether they agree with my opinions below.]

Accused by Virginia Roberts of having sex with her while she was an underage sexual servant of financier Jeffrey Epstein, Alan Dershowitz has insisted for months that he can can prove his innocence “conclusively with documentation,” “without any doubt.” He told Nancy Grace, for example, “I can prove conclusively that I didn’t do it, I couldn’t have done it, I wasn’t in the places she says I was at the relevant points in time.”

In interviews and in his recent deposition, Dershowitz has claimed that he was able to round up all the documents necessary to exonerate himself within an hour of first hearing the accusations.

After the deposition, though, it looks like Dershowitz might not even know what the documents produced so far look like, much less how they they manage to exonerate him.

The following exchange between Jack Scarola, representing Paul Cassell and Brad Edwards, and Dershowitz (on page 242 of the transcript) may be one of the most revealing passages:

SCAROLA: Well, having placed such substantial emphasis during the course of your public appearances on the flight logs exonerating you, it would certainly seem logical that one of the things that you would want to review would be all of the available — all of the available flight logs, right?

DERSHOWITZ: No.

SCOTT (COUNSEL FOR DERSHOWITZ): Objection, argumentative.

DERSHOWITZ: No.

SCAROLA: No?

DERSHOWITZ: No. Look, I knew I was never on a plane with any underage females under any circumstances. I knew that. I knew that as certainly as I’m sitting here today. So, I knew absolutely that if the manifests and the flight logs were accurate, they would, of course, exonerate me because I am totally, completely, unequivocally innocent of these charges.

So of course I knew that I would be exonerated by any flight logs that were innocent — that were complete and accurate, of course.

SCAROLA: So you made the public statements repeatedly that the flight logs would exonerate you without having examined the flight logs to see whether they were accurate or not; is that correct?

DERSHOWITZ: Well, I knew — I knew that —

SCAROLA: Did you say those things without having examined the flight logs?

DERSHOWITZ: I said those things having looked at some of the flight logs at some point in time. But I knew for sure that the flight logs would exonerate me because I knew I was never on Jeffrey Epstein’s plane with Virginia Roberts or any other young underage girls. So, I knew that to an absolute certainty. And I was prepared to say it. I’m prepared to say it again under oath here.

[ . . . ]

So, the flight logs clearly exonerate me. There’s absolutely no doubt about that.

 

Dershowitz’s Curiosity May Be Satisfied, But Some Of The Rest Of Us Still Have A Doubt Or Two.

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Cross-referencing Epstein’s flight logs and Carolyn Cohen Dershowitz’s calendar from the same time period (both available in the Exhibits file) does reveal possible windows of opportunity for sexual contact between Virginia Roberts and Alan Dershowitz. Whether Professor Dershowitz has noticed yet or not.

One example: December 11, 2000, through December 14, 2000.

On December 11, the flight logs show that Jeffrey Epstein flew from Florida to the New York City area. The plane left New York on December 14. The manifests for both flights include a passenger referred to as “Virginia.”

A notation in Carolyn Dershowitz’s calendar places Alan Dershowitz in New York at the same time, while she does not appear to be there. Also, on December 12, there is a 1:30 meeting with “Jeff” on the Dershowitz calendar. On December 13, a calendar entry shows a 10 o’clock massage scheduled for “AD,” presumably referring to Alan Dershowitz.

Dershowitz deflected, saying, “I don’t like massages particularly, but when Carolyn arranged massages, almost always we had them together at the same time.” (319)

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He’s right. On January 12, 2001, for example, the calendar shows another entry that appears to schedule Alan Dershowitz for a massage. This entry reads: “massage 8-9 AD 9-10 CC.” CC seems to refer to Carolyn Cohen Dershowitz in the shorthand found throughout the calendar. But this only makes his December 13 solo massage more conspicuous.

Sure, there’s no calendar entry reading “illicit sex with a minor – 12/12 – AD,” but is this really what “exoneration” or “conclusive proof of innocence” looks like to Alan Dershowitz?

Reviewing the flight logs and calendars is a dizzying project. There are details hidden in scribbles. Does a log entry read “AD,” possibly referring to Alan Dershowitz? How long can the pen stroke be before it becomes “AP,” for Adam Perry Lang, the chef who often travelled with Jeffrey Epstein?

An attorney as accomplished as Alan Dershowitz ought to acknowledge that there is much to analyze, dissect, and argue over in the reams of documents produced through the discovery process. It’s facile to suggest that this heap of logs just plainly, irrefutably proves that Dershowitz could never possibly have had illicit sexual contact with Virginia Roberts.

Dershowitz either can’t see or won’t acknowledge the differences among concepts like conclusive proof, or exoneration, and support. In the deposition, he doesn’t just argue that the opposing side has failed to prove his wrongdoing, so much as he keeps arguing that he has affirmatively proved his innocence. The former is hotly debatable; the latter is, in my opinion, laughable.

What Does He Think He’s Trying To Prove?

Perhaps Alan Dershowitz, icon of the criminal defense bar, has so deeply internalized the burden placed on the state in criminal prosecutions that he can’t shift from that mindset.

There, the state must prove the elements of the offense beyond a reasonable doubt. The job of a criminal defense attorney is to poke holes, cast doubt, place a question mark at the end of the sentence. With that done, the defense has succeeded, and the prosecution has failed.

Here, Dershowitz seems to think that the same standard applies. It does not.

He crows about “exoneration” and “exculpation” and “conclusive proof,” when at best he points out ways that his accuser and her lawyers haven’t proved his guilt beyond a reasonable doubt.

But that’s not what’s going on here.

This is a defamation case. Cassell and Edwards don’t have to prove beyond a reasonable doubt that Alan Dershowitz had sex with an underage Virginia Roberts in order to prevail in this suit. They need to show that they had an appropriate basis for signing their names to documents containing Virginia Roberts’s allegations about Alan Dershowitz.

Did they meet their ethical and professional obligations to reasonably investigate her claims? Did they know that the claims were false? Did they not care whether the claims might be false, even if they didn’t know that for sure? What evidence supports those inferences?

These are the questions at hand.

Perhaps at some point, Alan Dershowitz will focus on answering them.

Deposition of Alan M. Dershowitz – October 15, 2015
Deposition of Alan M. Dershowitz – October 16, 2015
Deposition of Paul G. Cassell – October 16, 2015

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 [email protected].

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