Opinion – Alan Dershowitz: Why I defend people like Jeffrey Epstein

If I had not defended the late Jeffrey Epstein and got him a favourable plea deal, it is unlikely I would have been the subject of a hit piece in The New Yorker, not to mention be accused of sexual misconduct by two of Epstein’s alleged victims. My first accuser told The New Yorker she accused me because “Jeffrey got away with it, basically. And Dershowitz was one of the people who enabled that to happen”.

So, because I did my job well – getting my client the best result – I have become a target of efforts to destroy my reputation and career.

This is not the first time in my long career as a defence attorney that this has happened. In my first major case, I defended a member of the Jewish Defense League for making a smoke bomb that killed a Jewish woman from a wealthy family. I won the case, but  the family refused to contribute further to Harvard law school unless I was fired. The law school refused, and all contributions ended.

When I helped successfully defend O.J. Simpson, my speaking engagements dried up. And when I defended films alleged to be obscene, there were protests and pickets.

The Epstein case was the worst of all. It reminded me of my college years, during which I defended the right of communists – whose views I despised – to speak at Brooklyn College and was called a communist.

There are several categories of defendants I will not represent: fugitives seeking to escape justice and career criminals. I also don’t generally defend anyone for a second alleged crime. But I will continue to represent the most despised, controversial and indefensible clients.

I get my inspiration from the biblical Abraham, who defended the sinners of Sodom; John Adams, who defended the British soldiers accused of the Boston Massacre; Abraham Lincoln, who defended numerous controversial clients, some guilty, some not guilty; and my friend and mentor Leonard Boudin, who represented communists during the McCarthy period.

I have participated in legal systems in which lawyers are punished for representing enemies of the state. When I defended Soviet Jewish refuseniks, our team had difficulty obtaining local counsel in the Soviet Union because they feared reprisal. The same is true in China today and in many other repressive regimes.

America is different – at least in theory. Our Sixth Amendment demands that every accused be afforded the right to counsel, but too many defendants are denied zealous representation because lawyers fear economic and political reprisal. Lawyers who were part of the Epstein defence team have had their contributions to political candidates returned. Others have been threatened with loss of business. This is a dangerous development.

Many poor people are denied effective counsel. That is why I have had a policy of defending half of my clients on a pro bono basis.

The Founding Fathers – and as a result, the US legal system – relied on jurist the Blackstone’s proclamation it is better for 10 guilty men to go free than for even one innocent person to suffer by being wrongly convicted (a similar sentiment to Abraham’s negotiation with God).

Most criminal defence lawyers defend mostly guilty defendants, because in the US most people accused of a crime are guilty. In order to keep it that way, we must vigorously defend every person accused of a crime. 

In other words, I defend the guilty to protect not only them, but to assure that innocent people are not brought to trial and put through the personal agony such a legal process entails. If criminal defence lawyers were to refuse to zealously defend the guilty, more and more innocent people would be brought to trial.

Being a criminal defence lawyer, particularly a successful one, is not the way to popularity. But it is the way to a just system of law.

•  First published by JTA