Former federal judge and University of Utah law professor Paul Cassell is facing a rare threat of a bar complaint over his representation of a client in the notorious case of billionaire and convicted pedophile Jeffrey Epstein. Even more rare is the source of the threatened complaint: retired law professor Alan Dershowitz of the Harvard Law School. Epstein is good friends with Bill Clinton and Duke of York Prince Andrew, 54, who have been mentioned in litigation over allegations of the use of underaged “sex slaves” and Epstein’s alleged penchant for watching (and filming) people having sex with these girls. Dershowitz’s name has appears on the ignoble list contained in motions before a federal court in Florida. Dershowitz is now threatening to initiate disbarment proceedings against Cassell and Bradley Edwards, a Florida attorney who also represents Jane Doe #3 in the controversy.
Dershowitz says that the sex claims are a “completely, totally fabricated, made-up story” and that he is an “innocent victim of an extortion conspiracy.” That itself could be viewed as defamatory since it makes the lawyers active participants in such extortion and any such statements made in public would be unprotected by privilege governing statements in court.
Cassell and Edwards however did not respond in kind and said that they would confine their statements to court filings “out of respect for the court’s desire to keep this case from being litigated in the press.” They noted however that they have “tried to depose Mr. Dershowitz on these subjects, although he has avoided those deposition requests. Nevertheless, we would be pleased to consider any sworn testimony and documentary evidence Mr. Dershowitz would like to provide which he contends would refute any of our allegations.” In other words, they are saying that if Dershowitz wants to refute these allegations, he should do so under oath.
Two women identified as Jane Doe #1 and Jane Doe #2 filed a 2008 petition in U.S. District Court in West Palm Beach that alleges violations of the federal Crime Victims’ Rights Act (CVRA) in the prosecution of Epstein. These women claim that prosecutors cut Epstein, who has a long list of powerful friends like Clinton, a generous deal that failed to address their alleged victimization from sex trafficking and that prosecutors did not even bother to confer with them. They also claimed the right to be heard at public proceedings regarding any plea or sentence, to receive restitution and to be treated with fairness. Epstein was allowed to plead guilty in state court in Florida to two counts of solicitation of prostitution involving a minor and served 13 months in prison before being released in 2009. They want the deal rescinded.
Cassell entered the fray on behalf of Jane Doe #3, who said that she was 15 when she became a sex slave for Epstein, and Jane Doe #4 who said that she was 16 in 2002 when she was used in this fashion. The women claimed to have been abused by Epstein and passed around to his friends. One account details a dinner with Bill Clinton and his allegedly close relationship to Epstein.
Dershowitz has been named as one of the friends cultivated by Epstein. Dershowitz reportedly later helped negotiate the agreement that provided immunity from federal prosecution in the Southern District of Florida to Epstein and potential co-conspirators — including allegedly Dershowitz himself.
One of the women has come forward. Her name is Virginia Roberts and she says that she was forced to sleep with Prince Andrews when she was a minor on three occasions – in London, New York and on a private Caribbean island owned by Epstein – between 1999 and 2002. Dershowitz has indicated that he is preparing legal action against Roberts as well and wants her statements made under oath. He is quoted as saying “My goal is to bring charges against the client and require her to speak in court. If she believes she has been hurt by me and Prince Andrew, she should be suing us for damages . . . I welcome that lawsuit. I welcome any opportunity that would put her under oath and require her to state under oath these false allegations.” Dershowitz has also said that these allegations against him thrilling “anti-Israeli zealots” who hate him for his defense of Israel.
What was a criminal case could now become a significant defamation case involving not just questions of per se defamation but questions of absolute privilege regarding court filings. I am still unclear as to any bar complaint against Cassell and his colleague. If any of these women allege (as reported) that Dershowitz was one of the men who has sex with them as minors, it is hard to see how the attorneys could be accused unless Dershowitz is seriously claiming that they are knowingly trying to help extort money from him or filing false papers. Cassell does not have a reputation for such actions. Indeed, he is highly respected as an advocate and an academic. An indication is found in his statement as to the basis for the disbarment effort: “I’m planning to file disbarment charges against the two lawyers who signed this petition without even checking the manifests of airplanes or travel itineraries, et cetera.”
The association of these men with Jeffrey Epstein is itself shocking. At best, Epstein is a convicted sex offender and a truly creepy character. (Shortly after his release from prison, he was quoted as denying that he is a real criminal and said “I’m not a sexual predator, I’m an ‘offender’. It’s the difference between a murderer and a person who steals a bagel.”). Those accused will hardly benefit by the association with such a character but the allegations obviously go well beyond the “bad friends” problem. In Clinton’s case, Roberts details how she was required to be at a dinner with Clinton where he and Epstein had a lively time. However, she did not personally see Clinton take advantage of two girls that were also at the dinner and appeared underaged. Nevertheless, the allegation of a former president having dinner with underaged girls at the house of someone later convicted of sex crimes could be viewed as itself defamatory if untrue.
As for the most sensational allegations, sex with minors is clearly a crime and an act of moral turpitude and would qualify as per se defamation. As such, no special damages would have to be proven. Clearly there are celebrities who would have to satisfy the higher standard under New York Times v. Sullivan and show either knowing falsehood or reckless disregard of the truth. They would also have to either find statements made in public or somehow overcome the privilege associated with court statements.
In other words, this is a mess and it is likely to get messier.
Source: SL Tribune