Our criminal justice system is built on the notion that the burden is on the prosecution to prove a case beyond a reasonable doubt before one’s liberty, our most valuable asset, can be taken away. And for good reason. We don’t want innocent people in jail.
We are willing to live with some guilty folks going free so that we don’t have the horror of an innocent person behind bars. Our system, with all of its flaws (including the concept that prosecutors who charge people with baseless claims cannot be charged), has clung to this bedrock principle of presumed innocence.
The system still affords defendants due process of law.
But what about a private individual falsely accusing someone of a heinous crime?
Today it seems that anyone can accuse another without any real fear of repercussions.
And this is most certainly true when a person makes an allegation in civil litigation.
Such allegations are protected by the “litigation privilege” and are not subject to defamation suits.
When someone says something accusatory in public, he can be sued. But a person who makes up an allegation in a court document can’t be. And if such an accuser is found to have lied, they likely will never be prosecuted.
This is where famed Harvard law professor Alan Dershowitz finds himself: accused of a heinous crime without any real recourse or due process protection. As the accusations pop up on screens across the globe, they are assumed to be true even though Dershowitz has not been charged or convicted.
Ironically what the good professor needs is what he has always provided- Great legal counsel. And the first job of that counsel is to take away his shovel and tell him to STFU and stop talking and digging the hole deeper because the more interviews he gives the worse he looks. The recent piece in the New Yorker made him out to be a conspiracy theorist of the worst order and that the allegations against him are the result of a meticulously orchestrated conspiracy by other well known and well respected lawyers who have joined forces with an array of troubled women to cause these untrue allegations.
ReplyDelete"Thou dost protest too much" came to mind after reading the article.
I agree it is as bad a position as an innocent and well known individual can be in. And I am not opining on his guilt and I want the allegations not to be true and I do not think they are true. But he is sinking himself and making it worse.
Perhaps he has a former law student who is currently a top defense attorney who works on top of a garage who could assist him? That would be the smartest thing he could do.
What is the over/under on how long before the fact that desh is a white male is highlighted in the comments?
ReplyDeletehe is????
ReplyDeleteDid Paul Cassell and Bradley Edwards sue Dershowitz for libel in Broward County after he dared them? And then Dershowitz counterclaimed for libel. It was Case No.: CACE15000072.
ReplyDeletehttps://abovethelaw.com/2016/04/settlement-reached-in-litigation-between-alan-dershowitz-paul-cassell-and-bradley-edwards/
"We are willing to live with some guilty folks going free so that we don’t have the horror of an innocent person behind bars. Our system, with all of its flaws (including the concept that prosecutors who charge people with baseless claims cannot be charged), has clung to this bedrock principle of presumed innocence."
ReplyDeleteAnyone who has worked in criminal appeals and wrongful convictions knows how funny and ridiculous it is to suggest the system cares about the "horror of an innocent person behind bars."
Once they've convicted you, by whatever means, the only concerns become "finality," "res judicata" and not otherwise rocking the boat.
This is not much of a defense of Dersh:
ReplyDelete"Today it seems that anyone can accuse another without any real fear of repercussions.
And this is most certainly true when a person makes an allegation in civil litigation.
...
This is where famed Harvard law professor Alan Dershowitz finds himself: accused of a heinous crime without any real recourse or due process protection. As the accusations pop up on screens across the globe, they are assumed to be true even though Dershowitz has not been charged or convicted."
The reverse is also true - Dershowitz accused the lady currently suing him of a crime and invited her criminal prosecution:
"My false accusers won’t accuse me on Twitter but I will accuse them: I hereby accuse my false accusers of committing the felony of perjury and challenge them to sue me for defamation. They won’t, because they know the truth will land them in prison."
https://twitter.com/alandersh/status/1102030042379370496?lang=en
Dersh, who is used to being a bully and bending people to his will, got exactly what he wanted - his "accuser" sued him for defamation. But Dersh did not do what he said he would - he has moved to dismiss the case to avoid a jury rendering a factual determination on the merits (the burden is carried by his "accuser" - she must prove that she is not lying about him raping her as a young child to prevail in her case).
Be careful of what you ask for because somebody might come along and give it to you.
If he is vindicated, a prosecution would be warranted if the government could carry the burden - but if he is not vindicated, and she prevails he should be referred to moving forward as the Infamous Harvard Law Professor because he will have earned that title.
GET ME JACK DENARO....
ReplyDeleteLooking forward to your R. Kelly piece.
ReplyDeleteWell, that didn't take long.
ReplyDeletehttps://www.cnn.com/2019/08/10/us/jeffrey-epstein-death/index.html