I attended several academic events at his home in New York and was invited—along with my nephew—to the launch of a manned space shuttle from the Kennedy Space Center.11
I never saw him in the presence of underage females or even anyone close to underage. While attending events at his home in New York—including one large party with Vera Wang, Amy Tan and other writers, artists and intellectuals—he introduced me and my wife to several of his women friends who were in their late 20s and early 30s. My wife didn’t like Epstein’s values, and especially his attitude toward women, but neither of us suspected that he had a penchant for teenagers. He kept that aspect of his private life completely separate from his academic friends.
In the late 1990s my wife, daughter and I were vacationing in the Caribbean and Epstein invited us to see the island he had recently bought. We spent a day there, dining with Professor Michael Porter of the Harvard Business School, his then-wife and their relatives. The island was empty, except for some staff and Epstein’s erstwhile girlfriend Ghislaine Maxwell. While Epstein was working in his office, my wife had a massage from a professional massage therapist and my daughter and I explored the island. This was my only visit to Epstein’s island, and it was well before he ever met Virginia Roberts Giuffre.
In an interview shortly after first being accused by Giuffre, I volunteered that I, too, had a massage from a professional therapist. Years later, the media tried to make a big deal of this, suggesting that I had “admitted” something devious. My massage, by a middle-aged woman of Russian background, had taken place well before Giuffre met Epstein and nearly a decade before anyone accused him of any improprieties. Epstein’s house manager submitted a sworn affidavit in which he confirmed that my massage was by a professional therapist named Olga who “was in her forties.” And, yes, I did keep my shorts on.
My family stayed in Epstein’s Palm Beach home for several days in 2005 when my granddaughter participated in a soccer tournament close by. Epstein was not there and the house was vacant except for the couple who took care of the house and prepared meals. I also stayed in his Palm Beach house when subsequently representing him and negotiating with the State Attorney of Palm Beach County. This was years after Giuffre separated from Epstein and moved to Australia. I flew in his small jet on several occasions on academic or legal business. The airplane manifests show that I was never on the plane with Giuffre or any underage females. I never heard the term “Lolita Express” used to describe the large jet he bought years later, until I read it in the press after he pleaded guilty. (Nor had I heard the term “pedophile” or “orgy” Island until after I began to represent Epstein. The island was called “Little Saint James,” or jokingly “Little Saint Jeff.” Epstein gave his guests sweatshirts with “Little Saint Jeff” printed on them.)
In none of these settings did I ever see an underage female, or even anyone close to underage. Nor did I ever see any photographs of nude or semi-nude women, or any sex toys. There were no clues that anything inappropriate had taken place in any of Epstein’s homes. If there had been, I never would have allowed my children or grandchildren to have spent time there. Nor would the dozens of academics, journalists, business people or political figures who frequented his homes have remained silent. Epstein may have had inappropriate photographs and sex toys in his private bedroom areas but that was closed off to his prominent visitors, whom he was trying to impress with his academic and other connections.
My infrequent visits to Epstein’s homes were no different from my visits to the homes of other academics and professional colleagues and friends, whose private areas I did not enter and into whose private lives I did not inquire.
* * *
As soon as Epstein was accused of sexual misconduct, my relationship with him changed completely. He asked me to become one of his lawyers and to help assemble a legal team, which I did. My relationship with him then became entirely professional. I billed him for every hour we spent together. Like many lawyer-client relationships, ours was tense and sometimes acrimonious. Nothing I did was good enough. He argued over my bills and whether I was prioritizing his case. Even the plea bargain we eventually struck—that the media labeled a “sweetheart deal”—did not satisfy him. “You should have done better,” he complained.
The deal itself has been widely mischaracterized by the media. Prosecutors had a strong state case against Epstein. There was credible evidence that he had improper sexual contact with local underage girls whom he paid in cash. (His claim that the few underage girls had presented fake IDs was irrelevant under the law.) But that would not become a federal crime unless there was an interstate nexus: credible evidence that he had transported these girls across state lines or used interstate communications facilities for an improper purpose. Federal prosecutors could not prove these essential elements, so they agreed to a deal under which Epstein would plead guilty to a state crime, serve 18 months in jail, register as a sex offender and compensate all of his victims. The plea bargain represented the comparative strengths and weaknesses of each side: they had a strong state, but a weak federal case. We had strong defenses to a federal prosecution, but not to a state charge. Epstein pleaded guilty, served time in jail, registered as a sex offender and compensated his victims. My relationship with him then ended, except for an occasional phone call about the plea bargain. I was not aware of any of his personal activities after the plea bargain was finalized and implemented.
Let me be categorical and crystal clear and repeat here what I’ve stated under oath and subject to pain of perjury: during my changing relationship with Epstein—from academic acquaintance and colleague, to lawyer, to former lawyer—I never saw or did anything even remotely improper.
11 It was the launch of the Atlantis in 1997.
CHAPTER 2
“You’ve Been Accused”
On the day before the 2015 New Year, I received a phone call from a journalist who said “You’ve been accused of having sex with an underage girl. What do you have to say?”12
I was shocked. I knew the accusation was false, because I had never had sex with an underage person, or with anyone other than my wife during the relevant time period. “Who, when, where?” I asked. The journalist told me the woman’s name was Virginia Roberts Giuffre, who was then 32 years old. She claimed I had sex with her 16 years earlier, when she was 16 and being trafficked by Jeffrey Epstein. The woman who accused me was not among the alleged victims at the time of the plea bargain, but she was trying to join a lawsuit whose stated goal was to undo Epstein’s plea agreement so she could sue him for a lot of money. As previously mentioned, I had been one of Epstein’s lawyers—together with Kenneth Starr, Roy Black, and others—who had arranged a plea bargain under which Epstein pled guilty to two counts of solicitation and procuring. It was a controversial end to a highly publicized case, and many people were furious that an alleged predator received so “light” a sentence. Among those who were most upset were some of his alleged victims, who were not notified in advance of the plea bargain.
I never met any of the alleged victims and knew nothing of the woman who was accusing me. It was an absurd accusation, and neither I nor my wife took it seriously. I joked that I had never had sex with an underage female—even when I was an underage male! My first marriage was when I was an inexperienced twenty-and-a-half-year-old, to my first serious girlfriend, whom I met in Jewish summer camp when I was sixteen-and-a-half. And in those days, there was no premarital anything among Orthodox Jews. A marriage license, unlike a driver’s license, was not preceded by a learner’s permit!
But within hours of learning of the false accusation, my phone began to ring and my inbox began to fill up, because I had been accused, along with Prince Andrew, in a court filing, which was leaked to the media. The story was being reported around the world, and although I generally received second billing to the prince, my name and that of Harvard were featured in many of the stories, generally in the headline.
* * *
My accuser initially insisted on anonymity in the lawsuit, even though she had given an interview in 2011 to a British tabloid, the Daily Mail, for which she was paid $160,000. In that article—in which she mentioned Prince Andrew and others, but not me—she had agreed to be named.13 Consequently, the media quickly identified her, and I was told her name and shown her photograph, but neither was at all familiar to me. I was sure that I had never met her. I certainly had never had sex with her.
* * *
Giuffre never provided evidence beyond her own inconsistent words to support her allegations. Nor did she give dates—even months, seasons or years—when she claimed to have had sex with me. She and her lawyers simply threw my name into a court filing in a case in which I was not a party. It was as if she had scribbled my name on a bathroom wall, except that by including it in a court filing, she sought to obtain immunity from being sued for defamation. Also, by filing it in a court, she gave immunity to the media to publish it without doing any investigation, even if they didn’t believe it was true, which several reporters told me they did not. The mere filing of the document made it “newsworthy” and protected it from defamation lawsuits.14 She could, of course, have filed the accusation under seal, as she did regarding the numerous other people she accused—many of them prominent political and financial figures. But as I would later learn from Giuffre’s best friend, the decision to accuse me in public, while accusing others in private, was part of a carefully calculated shakedown plot to get money from a wealthy individual who was not publicly named—at least not yet.
As soon as I learned of the false accusation, I agreed to respond to interview requests from major media around the world. I categorically asserted not only my complete innocence but also the physical impossibility of the allegations leveled against me: I had incontrovertible documentary evidence proving that during the relevant time period, I could not have been anywhere near four of the five locations where my false accuser said she had sexual relations with me. These included a private Caribbean island, a New Mexico ranch, a Palm Beach mansion and a private jet all owned by Epstein. (The fifth was New York City, which tens of millions of people, including me, pass through.) I produced the evidence—travel, cell phone, credit card, and other records—that accounted for my whereabouts every single day of the two years during which this woman claimed she was being “trafficked” as a “sex slave.”
A few days later, the Wall Street Journal published an op-ed entitled “A Nightmare of False Accusation That Could Happen to You”15 in which I wrote about the legal predicament I found myself in and about the “gaping hole in our legal system” that permits unscrupulous individuals to make false accusations without any legal or pecuniary consequence. (More on this in Chapter 10.)
* * *
I agreed to waive the criminal statute of limitations by submitting a sworn affidavit that, if false, would subject me to a current perjury prosecution, despite the accusation being well beyond the statute of limitations. I challenged my accuser to produce any photographs or other physical evidence substantiating her account, which I knew could not exist. I also demanded that she and her lawyers repeat the accusation on TV, so I could sue them. Of course, they did not.
I called my false accuser a liar and perjurer—not only in court papers but in media interviews—knowing that this exposed me to the risk of an expensive and risky defamation suit by her.
In short, I did everything I would never allow any of my own clients to do—because most of my clients have had something to hide.
I’ve represented hundreds of individuals who have been accused of crimes ranging from mass murder to insider trading. Rarely have I known for certain whether they were guilty, innocent, or somewhere in between. In my first book written for a general audience, The Best Defense, published in 1982, I acknowledged that most of the criminal defendants I’ve represented have probably been guilty, because in the United States the majority of people charged with crimes “are in fact guilty.” And thank goodness for that. No one would want to live in a country—like Iran or China—where a large number of innocent people are brought to trial. Although absolutely innocent people are sometimes charged with serious crimes, criminal justice systems that operate under the rule of law pride themselves on that happening quite rarely. So when I take a criminal case, I begin with a presumption of guilt: I assume my client probably did it, though I hope I’m wrong—and sometimes I am.
Generally, it is much safer for a criminal defense lawyer to presume guilt rather than innocence as a beginning hypothesis. If I were to presume my clients’ innocence, I might make the mistake of allowing them to be questioned by the police. I might have them consent to a search of their home or computer. Or I might allow them to go on TV, assert their innocence, and lock in their account, which may turn out to be provably false.
If I were ever to have a case in which I knew for certain that my client was innocent—say I had a video of my client being on a different continent at the time of the crime—I might well waive his rights and encourage the police to question and search him. I might encourage him to go on TV, assert his innocence, tell his story, and even show the video. After all, if the client is innocent, what does he have to hide? Why have the client look guilty by refusing to answer questions?
Well, I was that client. Having nothing to hide, I did what I would never allow a client, of whose innocence I was not absolutely certain, to do. I went on TV, asserted my innocence, provided my evidence, waived the criminal statute of limitations and answered all questions.
I did it because I was my only client about whose absolute innocence there was no doubt. So I was prepared to break all of my rules, and the rules by which other good defense attorneys operate, when they represent accused persons of whose innocence they can never be absolutely certain. My candor and openness succeeded—at least initially.
The lawyers who filed the false accusation withdrew it and publicly acknowledged that it was a “mistake” to have filed sexual misconduct allegations against me.16 An independent investigation by the former director of the FBI and former federal judge, Louis Freeh, concluded that there was no “evidence to support the accusations of sexual misconduct against [me]” that “in several instances, the evidence directly contradicted the accusations made against [me],” and “the totality of the evidence found during the investigation refutes the allegations made against [me].” (Appendix I) An investigation by James Patterson and two investigative reporters “found nothing other than accusations in terms of Dershowitz.”17
One of the lawyers who had filed papers accusing me of having sex with Giuffre and other underage females—former federal judge and now a University of Utah law professor, Paul Cassell—acknowledged during a sworn deposition that he did not have the names of any such females, and had not spoken to any. In fact, he was not able to offer any actual evidence—because there was none—to corroborate his outrageous accusation. This is what he swore under oath when asked to name one of the other underage females with whom he said I may have had sex: “I have 24 names in mind as possible sexual abuse victims that Dershowitz may or may not have abused. And I have not been able to pinpoint exactly what happened.” (Emphasis added.) He said that he got the names from a police report that referred to Jeffrey Epstein but did not mention me. It was a clear example of guilt by association between a client and his lawyer. The worst part was that this McCarthyite statement was not made by an ordinary lawyer but rather by a “distinguished” professor and former judge who lent his impeccable professional credentials to bolster the false accusations. Because he made it in a cowardly fashion behind the litigation privilege in a court proceeding, I couldn’t sue him for defamation. He knew that if he made it outside of court, I would have sued him and won a large judgment. I challenged him then and invite him now to repeat his false and defamatory accusation outside of court. He won’t. I also invite the Utah bar association to investigate his outrageous and unfounded accusation. They won’t.
Not surprisingly, the federal judge before whom the false accusations were filed expressed outrage and struck them from the record as a “sanction” against the lawyers, and reminded the lawyers of their ethical obligations under court rules not to include irrelevant and impertinent accusations in court documents. But this positive result took many months, many dollars in legal fees, and considerable aggravation. It left lingering scars on my health and my reputation. It should never have happened, and it wouldn’t have, had the lawyers representing Giuffre been more responsible and had the legal system not been unfairly skewed in favor of protecting those who level false accusations from behind the litigation privilege.
I am telling this story now so that the law may be reformed to protect innocent people from being falsely accused in the future. I am a victim of a false accusation, and I believe that victims must speak out against the injustices they suffered. The #MeToo movement has commendably forced into public view the rampant exploitation of vulnerable women by predatory men. Women who have been victims of sexual abuse must be encouraged to expose their abusers. But men who have been falsely accused—especially those, like me, who were deliberately targeted for crass financial gain—must also be encouraged to expose their false accusers. I will continue to speak out against anyone who has falsely accused me, despite the difficulty of proving one’s innocence in the age of #MeToo. I will fight the current sexual McCarthyism of lawyers like Paul Cassell as strongly as I fought the political McCarthyism of my youth.
Guilt by Accusation Page 3
