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Coming out Swinging: Alan Dershowitz Takes it to His Accuser - Should you Do as Dershowitz?

Legendary legal mind Alan Dershowitz has been accused, in a plaintiff's lawsuit, of having sex with an underage woman identified for the time being as Jane Doe. While he was not a named plaintiff (meaning Jane Doe was not seeking damages from him), her lawsuit accuses him of illegal and despicable acts and paints him as a sexual deviant and criminal. I watched with bated breath as Mr. Dershowitz took to the airwaves and delivered a powerful denial of any wrong-doing, blasting not only the plaintiff but her lawyers, stating he would seek their disbarment, challenged Jane Doe to repeat her accusations outside the protection of her lawsuit (where she enjoys a privilege to make statements without fear of being sued for defamation, etc.), then called her a liar and said in no uncertain terms he would prove his innocence.

I found his statement riveting and I instantly believed him. Of course, this kind of tactic is contrary to everything I advise my own clients to do. But this is ALAN DERSHOWITZ - one of the great legal minds of our time, a gifted scholar, a veteran of complex litigation surely he is knows what he is doing! He went as far as to file a sworn statement in federal court denying all the allegations in detail - in contrast to his accuser's "statements" in her lawsuit, his statements, if proven false, would subject him to criminal sanctions!

Hours later, Jane Doe's lawyers responded with their own threats and we are off to the races. I watched as the news channels picked up the story, the salvo between attorneys, the posturing - it makes great news after all - it involves sex, prostitution, powerful men and even a prince for good measure. Commentators were quick to point out how Mr. Dershowitz had gone on the offensive, had made such a powerful statement of his innocence. Invariably, comparisons were drawn to Bill Cosby who is mired in a growing sexual scandal. Mr. Crosby's public comments have not satisfied the public like Mr. Dershowitz's. Several commentators stated that Mr. Cosby's lack of such a strong response made his guilt seem apparent. After all, who would not do as Dershowtiz had if they were falsely accused.

When I pick juries, this is a common issue we address. The right to remain silent is one of our most sacred rights and jurors are told over and over again they must not expect a defendant to take the stand or to make any statement in his own defense. Of course, most trial lawyers know jurors may nod their heads gravely and solemnly swear to not wonder why a defendant has not protested his own innocence then do exactly that! Some honest jurors will tell me they cannot accept that an innocent person, falsely accused, would not take the stand in their own defense. Jury selection is filled with white lies - jurors try their best to overcome basic human curiosities and tendencies. But at the end of the day, I suspect most of them want to hear the guy say he didn't do it! And that is why Dershowitz's tactic seemed to be paying dividends so quickly and why Cosby's "silence" leaves the public unsatisfied.

As the news cycle continued, I started seeing other coverage of Dershowitz's response. Most remained favorable. But a few commentators pointed on the detailed denials did not seem to mesh with the general accusations. Some people attributed this to a hasty response on Dershowitz's part (which I find extremely unlikely - one does not become as successful as Mr. Dershowitz by slapping together a few quick thoughts on a napkin, popping down to CNN to record a statement then filing an affidavit in federal court). One thing I noticed immediately was Mr. Dershowitz stating he was with his wife and daughter continuously for an entire period of time during which he is accused to have had sexual relations with Jane Doe. Certainly the spirit of the statement is he was never alone with the plaintiff, which may be entirely true. But did he ever go to the bathroom? Did his wife and daughter go with him? Did his wife awake before him and wait till he was sound asleep before turning in herself? Am I nitpicking? Perhaps. But it is exactly that kind of nitpicking that attorneys have used for centuries to shake and damage even the most credible of witnesses.

Take an innocent man accused of molesting his niece. He claims he has never been left alone with his niece without his wife being present. But was the wife always in the same room? did she ever got to the bathroom? Did she ever take a phone call and walk into the bedroom? Was he ever alone with his niece for even a few minutes. I bet the answer is yes. We all know what the innocent accused MEANT to say, but a skilled cross examiner will make bleed a witness over such a statement. If I were the cross examiner, I would then ask the open ended question (or argue to the jury) what kind of man must this be that his wife doesn't trust him alone with his niece? Pretty awful right, but its a fair inference and if you think police and prosecutors do not make those kinds of leaps...

I hope Mr. Dershowitz proves his innocence and that, if he has been falsely accused, he is exonerated fully. If his accuser fabricated her story simply to tarnish a reputation or extort money, then I hope justice prevails. Like the rest of the public, I will have to wait and see what the evidence shows. But when it comes to advising our clients at Delgado & Romanik, will I advocate they do like Dershowitz and come out swinging? Probably not. First, Mr. Dershowitz is not facing criminal prosecution and that makes a huge difference. Anyone accused of a crime should absolutely remain silent and allow their attorneys to speak for them, mindful that pretrial publicity is not always a good thing (and their attorneys should remember that, in Florida, our professional rules may prohibit certain types of public statements). As much as it may gall an innocent citizen to be "slandered" and maligned, to be falsely accused and investigated, it is usually best to gather evidence, learn the full details of the accusations you are facing, and address the evidence where it matters - in the court room. Presenting your best case takes skill, experience and a certain degree of detachment. There is a skill and an art to presenting a defense and while the "truth" may be on your side, you also need to make sure the "truth" is presented in the correct way, at the correct time and within the framework of our legal rules. And when "truth" may be more subjective (your reasonable belief you were in danger, for example), the presentation of that "truth" is more challenging.

If you have been accused of a crime, call a lawyer immediately. If the police want to ask you some questions, call a lawyer immediately. My partner David Damore has a great expression many people hear too late "a fish wouldn't get caught if it didn't open its mouth" By the time it gets to the point where law enforcement is involved, you are past the point where you can handle this on your own. Maybe a few people have talked their way out of a speeding ticket. Beyond that, do not talk to the police and hire a lawyer. And don't just get some free advice on the phone then go in and give a statement anyway! Here's the "free" advice - hire a lawyer, don't talk to the police without a lawyer present. And when I say do not talk to the police I mean do not say a word. Do not tell them just a little bit. Or just answer a few questions. Tell them politely, "I am sorry, but I am afraid I cannot speak with you. I have an attorney. You are welcome to call him." When we are hired by a person who is facing criminal accusations, we prepare a letter to the police and the State Attorney telling them we are representing the client, they are not to be questioned or detained, and providing our cell phone numbers for immediate access. You can find a sample of our letter on our website. We also have a handy card you can carry with you. You may print the card out HERE or stop by the office to get a physical card to carry with you.

If you or a loved one is the target of a criminal investigation, do not wait. Act immediately. Contact Delgado & Romanik and let our team of experienced trial attorneys help you begin building your defense. We are available 24/7. Trust me, when the police hear you have DDRR on your side, they will know you are not a fish for them to fillet. They will know you have a team of experienced aggressive and savvy attorneys chomping at the bit to protect you. The call is free. Building an excellent defense from the moment you are accused is priceless!

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