Alan Dershowitz

The impetus for this post resides in a column that was published today in my local newspaper (see https://www.seattletimes.com/opinion/what-alan-dershowitz-taught-me-about-morality/).  The column was about a person named Alan Dershowitz.  Readers will fall into one of two categories at this point.  One group will be all too familiar with Mr. Dershowitz and the other will have no clue as to who he is.

For the latter, he is nominally a retired Harvard Law Professor.  But he is more broadly known for his participation in various high profile legal cases.  Although not this first high profile case, the first one that brought him wide public notice was the von Bulow case.  I will discuss that below.  But before I do that I want to cover some other things.

And one of them is the OJ Simpson case.  I have written a couple of posts on the subject.  Recently I wrote a post called "From Ito to Ellis".  Here's a link:  http://sigma5.blogspot.com/2019/03/from-ito-to-ellis.html.  It, in turn, builds on a much older post called "The OJ Trial".  Here's a link to that post:  http://sigma5.blogspot.com/2014/06/the-oj-trial.html.

But back to the newspaper column.  The author describes, among other things, her experience taking a class from Dershowitz.  As the class delved into the subject of morality they discussed several moral dilemmas.  The one I want to focus on is one that is frequently used in this context.  The setup is unimportant.  The basic issue is "what should you do if your only choices are between killing one person and killing five?"

There is a moral philosophy called "Utilitarianism" which says that you should kill the one person because it reduces the death toll from five to one.  But most people would be horrified to be responsible for the death of even one person.  And that's why this dilemma is studied.  You literally have a choice between two bad outcomes.  Utilitarianism provides little comfort even though it leads to a clear answer to the dilemma.  And that's why few people subscribe to a pure version of it.

The problem here is the closed nature of the problem as it is presented.  All other options are foreclosed by one method or another so that the sole focus is on the "one or five" decision.  But there is a person who, when confronted with a similar "all options are bad" scenario, found a solution.  His name is James Tiberius Kirk and he was, for many years, the captain of the Starship Enterprise.

Here too the problem was a hypothetical one that derived from no actual event.  It was entirely made up in order to present students with a dilemma.  It was formally known as the "Kobayashi Maru" problem.  It constituted one part of the final examination all students at Starfleet Academy had to complete in order to graduate.  An analogous situation would be a final examination that naval cadets must complete before they can graduate from the US Naval Academy at Annapolis.

And, in a manner completely analogous to the "five or one" problem, the Kobayashi Maru problem was carefully constructed so that everyone failed.  There was no action the student could take (or fail to take) that would result in a positive outcome.  Yet when Kirk was presented with that problem he, in fact, produced a positive outcome.  What did he do?

He cheated.  He managed to find a way to break into the system at the Academy and modify the problem so there was a set of actions that would result in a positive outcome.  He broke the rules.  There were strict prohibitions against that sort of thing.  But, another way of thinking about what he did was that he thought outside the box.

And thinking outside the box was something the Academy wanted to encourage in their graduates.  (This line of argument didn't get him far in the resulting legal proceedings against him.)  But the important question in this context is:  were Kirk's actions morally justified?  We'll never know what Dershowitz and others think about Kirk's actions because they have never discussed it.

Now let me circle back to the von Bulow case.  Sunny von Bulow, wife of Claus, unexpectedly entered a coma under mysterious circumstances.  The conventional wisdom was that Claus had attempted to kill her using poison and the plan had gone awry to the extent that she didn't die.  von Bulow was subsequently convicted of attempted murder.

Dershowitz was pivotal in getting that conviction reversed on appeal.  Sunny eventually died and von Bulow was eventually acquitted when the case was retried.  At no point did a viable alternative theory to the "von Bulow poisoned her" theory emerge.  Instead, Dershowitz was able to convince the appellate judge that reasonable doubt existed.  When the case was retired enough confusion had been sewn that it was easy to again effectively assert reasonable doubt.

Dershowitz has now written many books.  I have only read one of them.  "Reasonable Doubts" concerned the OJ Trial.  In the actual trial Dershowitz played only a minor role.  He was there to be ready in case an appeal was necessary.  He would have been the lead attorney in that proceeding.  But OJ was acquitted so no appeal was necessary.  The fact that he ultimately played only a minor role in the proceedings didn't stop him from writing a very interesting book on the case.

Dershowitz claims in that book that "if you aren't convicted you are totally innocent".  That is a completely ridiculous position to take.  It is correct in a very narrow legal sense when it comes to various legal proceedings but it completely wrong in pretty much any other circumstance.

Another claim Dershowitz made in the book was that while the trial was in progress he literally had no idea whether OJ did it or not.  That too is completely ridiculous.  He was (and is) a very smart man.  He had a front row seat from which to observe all of the evidence introduced at trial.  He also had access to a lot of additional evidence that never made it into the formal record of the trial.  In those circumstances it is completely unbelievable to think that he never developed an opinion on the guilt or innocence of the defendant.

But wait, there's more.  As I noted in my "OJ" post, he went out of his way to accuse LAPD Detective Philip Vannatter of being a liar.  Why?  Because Vannatter said at one point that OJ "was no more of a suspect" than one of the defense lawyers.  But Vannatter indicated that was his belief at a very early stage in the investigation.  I'm sure he was familiar with a number of cases where the initial evidence pointed strongly toward one suspect was later evidence pointed in an entirely different direction.

Characterizing OJ as a "person of interest" was certainly appropriate at that point.  But much of the evidence in the case had not yet been collected.  So a good, experienced, Detective should have an open mind at that point.  Settling on a single suspect should not be done until all available evidence has been collected and evaluated.  It should then be done only if a clear pattern has emerged and the totality of the evidence points in only one direction.

Compare this to the situation Dershowitz was in when he wrote the book in which he repeatedly averred that he had no opinion of OJ's guilt or innocence during the trial.  The Dershowitz statement is far more incredible (as in not believable) than the Vannatter statement.  And that, in my opinion, summarizes Dershowitz's thinking and his view of morality in a nutshell.

He is nothing if not consistent.  Since the OJ trial he has continued to be active.  (He is now 80 and has been retired from Harvard for a number of years.)  Harvey Weinstein is a now thoroughly disgraced movie executive.  He has become one of the poster children for the "Me Too" movement.

Many women have now come forward publicly and accused him of inappropriate (in some cases extremely inappropriate) behavior toward them.  A large operation run out of his businesses has been credibly described as existing solely to cover up his misdeeds.

Why is this coming out only now?  Many of these were women who at the time were trying to create or maintain an acting career.  That is effectively impossible to do if there is a "whisper campaign" in place accusing an actress of being hard to work with or any of a number of other vaguely negative and hard to prove or disprove accusations.  And, according to many, that was one of the principal tools the Weinstein cover up operation employed.

They effectively conveyed the message to these women that if they spoke up they would never get a job in Hollywood again.  We now have documented examples of a number of women attempting to speak up and, as a result, promptly seeing a previously promising career disappear without a trace.

Women were literally forced to decide between quietly acceding to Weinstein's outrageous wishes or speaking up and seeing their careers end prematurely.  The "old boys" network made sure that these women's accusations were not taken seriously by the authorities.  But the very same "old boys" network also made sure that an effective whisper campaign destroyed the career ambitions of these very same women.

In other words, women propositioned by Weinstein were presented with a real life version of the "five or one" dilemma.  They got to chose between the death of their carriers or the death of their dignity, self respect, sense of safety, etc.  Whichever option they chose took a serious toll on them.  As did the very process of coming to a decision.

Finally, a third option, a Kirk-ian option, if you will, became available.  The "Me Too" movement gathered enough power and momentum to force authorities to take these kinds of accusations seriously.  And it turned out that there was mountains of evidence, at least in the case of Weinstein, that the accusations were true.

These women could now defend themselves by speaking up.  And that no longer resulted in automatic career death.  Also, authorities were now forced to take the accusations seriously and investigate them.  It soon transpired that there were just too many credible accusations concerning too many men in the business for a cover up to continue happening.  In order for this change to happen something akin to the way Kirk was able to change the Academy system had to happen.

Kirk was a lone individual.  The "Me Too" movement only became effective when a large group of women decided at about the same time that the Hollywood system needed to be forced to make a similar change so that there was a way for these women to win their equivalent of the Kobayashi Maru scenario.  Is it any surprise that, once it was available, so many women chose that third option.

And where was Mr. Dershowitz in all this?  He was on Weinstein's side.  In the classroom he was happy to let the original version of the "five or one" dilemma play out.  It was, after all, "a good learning experience for the students".  He was also staunchly in favor of not changing the Hollywood version of the "five or one" scenario.  To his way of thinking, everything was working just fine.  Vigorously defend the perpetrators.  Don't give the victims the option of a positive outcome.

The latest twist in this story has to do with Jeffrey Epstein.  He is much in the news these days.  He is a millionaire predator who specializes in victimizing young women.  His name broke into the news in early July of this year when he was arrested for sex trafficing.  As soon as the news broke his earlier run in with the law along similar lines resurfaced.

It turns out that in 2005 and 2006 he was involved in a case involving accusations of him doing business with a large number of "Prostitutes".  But the "prostitutes" in this case were young women, many of whom appeared to have no connection at all with prostitution before they encountered Epstein.  (Most of them had no connection with prostitution afterwards, either.)  But he paid them, usually a few hundred dollars, to service him so that was used to label them as prostitutes.

In many cases the "services" involved consisted of a massage in which one or both parties were partially or completely undressed.  And, at least initially, the massage only included contact with his back and other non-sensitive parts of his body.  But that was not true in all cases.  Things often progressed over a number of sessions.  Let's just say that a lot of the alleged activities didn't stop at massages and leave it there.  And, as with Weinstein, Epstein is credibly charged with having a procurement/coverup operation that ran out of his business.

For a long time it looked like the prosecutors had an extremely strong case.  Conviction on all counts (many of the crimes were Federal crimes) would have put Mr. Epstein in jail for many years.  But then something very strange happened.  Alex Acosta, a Trump cabinet member (Secretary of Labor) until he resigned a couple of weeks ago, arranged for Epstein to get a sweetheart deal.

All Federal charges were dropped and a very broad non-prosecution agreement was entered into.  Instead, Epstein pleaded to a fairly minor State charge.  He served about a year in jail.  But during this time he was allowed out of jail for most of the day so he could continue to "operate his business".

There was even a super-sweetheart clause that meant he was not monitored in any way while he was out of jail.  As a result we know very little about what he actually did other than that he did not confine his activities strictly to business.  (There is some evidence of what non-business activities he engaged in and it is not good.)  All this screamed "the fix is in" both then and now.  And I haven't even listed all of the "irregularities" that have recently surfaced.

It will not come as a surprise at this point to learn that Dershowitz was on the job, as in on Epstein's side, for all of this.  He was part of Epstein's defense team for all this back in the day.  Since then, he has steadfastly defended Epstein until very recently.  He has said his involvement in the Epstein case was a mistake in public but has told another story in private.

And it will also come as no surprise that Dershowitz has spent a lot of time over the past few years defending Trump.  His public position is (paraphrasing) "every man is entitled to the presumption of innocence right up until the minute he is convicted in a court of law and all of his appeals are exhausted".  That, of course, does not comport at all with how Dershowitz acts rather than what he says.

Based on his actions, a more accurate statement if his belief is "every wealthy and/or powerful man is entitled to the presumption of innocence right up until the minute he is convicted in a court of law and all of his appeals are exhausted.  And, he is probably entitled to a presumption of innocence after that too."

Dershowitz is also a big fan of a pull out all the stops - Perry Mason style defense.  That's the strategy he used in the von Bulow appeal.  That's the strategy he employed with Epstein in 2005-2006.  It is the strategy he is now advocating for Trump.  But who does this apply to?  If you listen to what he says the answer is an unambiguous.  It applies to everybody.  But look at his actions.

von Bulow was wealthy.  OJ was less so but he was famous.  Epstein and Weinstein were wealthy and so is Trump.  (They are also all men.)  The only situation I have found where he has broken with this pattern happened three decades ago.  He represented a Rabbi (Avi Weiss), a person of modest to non-existent means, in a defamation suit involving a powerful Catholic Bishop (Jozef Glemp) and the Auschwitz concentration camp.  I think in that case his actions actually were dictated by consideration other than those of money and power.

But consider a black man of very modest means who is caught selling drugs on a street corner in his run down and crime ridden neighborhood.  Does this person deserve a "best defense" any less than von Bulow, Simpson, Epstein, etc.?  If you look at what Dershowitz says the answer is NO!  But, as far as I can tell Dershowitz has involved himself with no cases of this type.

And the fact that if he routinely and vigorously defended poor people he might eventually end up in the poor house is not a defensible argument according to the morality he so fervently and definitely and consistently espouses.  So, except for occasionally helping out a fellow Jew, a laudable thing to do, his actions shout "charity is for suckers".

I have long thought that Mr. Dershowitz is a fundamentally immoral man.   As such, we shouldn't be leaning lessons about how to navigate the moral conundrums that life routinely presents us with from people such as him.  And we certainly shouldn't be paying heed to anything he has to say on TV.  To quote the last line of the column that kicked all of this off, "your morality comes from what you do."  Mr. Dershowitz, what you DO is immoral.