“Well, at least you can sue for defamation the two lawyers and the woman who made the false charges. No, you can’t, your lawyer tells you. They leveled the accusation in a court document, which protects them against the defamation lawsuit as a result of the so-called litigation privilege…

…The accusation doesn’t mention the alleged victim’s name—she’s referred to as Jane Doe #3, and the court document includes no affidavit by her. Welcome to the Kafkaesque world of American justice. But Kafka was writing fiction when he described the ordeal faced by Josef K in his famous novel, “The Trial.” What I have described is real. It is happening to me right now. And if it can happen to me, it can happen to anyone. There is a gaping hole in our legal system that allows lawyers to bring irrelevant accusations against innocent nonparties in court papers that insulate them from any consequences, and to deny the falsely accused any opportunity to respond. The law must be changed to shatter this hall of mirrors I face and others might. There must be consequences for those who file accusations with no offer to prove them and no legal responsibility if they are categorically—and disprovably—false. I will not rest until this gaping hole is filled with reasonable safeguards, so that what is happening to me can never happen to another innocent person.”, Alan M. Dershowitz, professor of law emeritus Harvard Law School, “A Nightmare of False Accusation That Could Happen to You”, Wall Street Journal

“It’s not just innocent “nonparties” that are affected, most innocent “parties” are also defamed, without any practical recourse. Think about it, if the largest banks and companies in America can’t fight the government in court, how can individuals Americans? What happened to Prof. Dershowitz, also happened to me when IndyMac failed during the 2008 financial crisis. It’s unbelievable and wrong that lawyers, especially lawyers acting on behalf of the government (in my case at the SEC and FDIC) can lie about you “within the four corners of a lawsuit” and other court documents, and yet they can’t be sued for defamation!!! These lawyers know that the odds of them ever being held to account for their lies is remote, because nearly all of these matters are settled without any facts being determined by a court of law or admissions. And even if they are proven to be lies in court, judges and the legal establishment are reluctant to punish them. To make matters even worse, government officials, like those involved in the investigation of IndyMac Bank’s failure (from the SEC and from the OIG of the Treasury) lied and defamed me outside of court documents, in a litigation press release (which is still on the SEC’s website to this day) and in the Treasury OIG’s biased and inaccurate report about IndyMac Bank. I wanted to sue them, but unbelievably my lawyers told me I could not. Why? Because U.S. government officials are protected by “sovereign immunity” from defamation suits!!! Any government official can defame any individual American, with impunity anytime they wish to do so!!! And in the case of the SEC’s litigation press release, the court’s finding for me (the court found for me on every matter presented) prove that the SEC’s press release was false and defamatory. Finally, in one of the meritless private, class-action securities lawsuits against me, their main witnesses were a handful of Jane and John Doe ex-employees of a tiny (less than 1% of our lending) retail mortgage lending division that we closed down. The plaintiffs’ attorneys fought us tooth and nail, but the court finally allowed us to know these individuals. It was immediately apparent that these employees would have had no contact with me, so it would not have been possible to make any connection between their allegations (in an immaterial unit) and my responsibilities to timely and accurately disclose all material issues to IndyMac’s shareholders in our SEC filings. Despite this suit being filed earlier, the SEC itself didn’t include a single one of this private suit’s allegations when they sued me!!! Of course, this meritless matter settled for a few million dollars of D&O insurance funds, as a nuisance suit, without any allegations being proven, without any facts being determined, and without any admission on my part. I agree 100% with Harvard Law Prof. Dershowitz when he says: “Welcome to the Kafkaesque world of American justice.” and “The law must be changed to shatter this hall of mirrors I face and others might.”. It’s pretty simple to fix, in my opinion. Eliminate the defamation protections for lawsuits/court documents. Also eliminate the defamation protections of government officials (against individual Americans). Finally, the media knows that under the current law, plaintiffs and their lawyers are allowed to lie and defame within the four corners of a lawsuit/court documents, so it’s wrong for media organizations to be protected against defamation suits when they just regurgitate these allegations/lies without fact-checking them. Because of the litigation privilege, lawsuits and other legal documents are not factual. They are crap. Anyone, including the media, who regurgitates non-factual crap should not be protected from defamation suits either.” Mike Perry, former Chairman and CEO, IndyMac Bank

A Nightmare of False Accusation That Could Happen to You

If you are called a criminal in a lawsuit to which you aren’t a party, you may have no legal recourse to defend yourself.

By

Alan M. Dershowitz

Jan. 14, 2015 7:14 p.m. ET

Imagine the following situation: You’re a 76-year-old man, happily married for nearly 30 years, with three children and two grandchildren. You’ve recently retired after 50 years of teaching at Harvard Law School. You have an unblemished personal record, though your legal and political views are controversial. You wake up on the day before New Year’s Eve to learn that two lawyers have filed a legal document that, in passing, asserts that 15 years ago you had sex on numerous occasions and in numerous locations with an underage female.

The accusation doesn’t mention the alleged victim’s name—she’s referred to as Jane Doe #3, and the court document includes no affidavit by her. But her name doesn’t really matter, because you have never had sex with anyone other than your wife during the relevant time period. The accusations against you are totally false, and you can prove it.

Well, that is my situation: I’m the one who has been falsely accused. But let’s continue to imagine it was you:

Your first instinct is to call your lawyer and have him file a denial to the court in which the accusation was made. But your lawyer informs you that you can’t do that because you’re not a party to the lawsuit (against the United States government seeking to vacate the plea bargain your client struck seven years earlier) and have no standing to file any papers.

Not to worry, you imagine, because the lawyers who accused you of these heinous crimes will certainly have to prove them in court, which they will be unable to do, because they’re not true.

No, your lawyer tells you. They didn’t ask for a hearing or any other opportunity to prove the truth of what they alleged. So the accusation will remain on the public record without anyone having to prove it or you having any opportunity to disprove it.

Well, at least you can sue for defamation the two lawyers and the woman who made the false charges. No, you can’t, your lawyer tells you. They leveled the accusation in a court document, which protects them against the defamation lawsuit as a result of the so-called litigation privilege.

How did the accusation get from a court filing in an obscure courthouse in Florida to the first page of many newspapers and the first item on many television broadcasts? Obviously, it was leaked; who is going to be checking court filings the day before New Year’s Eve? But the mere leak of a publicly filed court document cannot lead to a legal claim, your lawyer tells you.

You can’t just let the false story spread without responding. Moreover, you have documentary proof that you could not have been in the places and at the time Jane Doe #3 said she had sex with you. Can you at least respond in the media? Not without some risk of being sued for defamation, your lawyer tells you.

You have no choice but to take that risk, so you make your denials and counteraccusations on live television. You challenge the two lawyers who filed the court document to repeat the false charges in the media, so you can sue them. They remain silent. You challenge the woman, now 31-years-old, to bring rape charges against you and you offer to waive any statute of limitations, because the filing of a false rape charge is itself a serious crime—though it is rarely prosecuted. She doesn’t accept your challenge.

And then, sure enough, the lawyers who made the false accusation— Bradley Edwards and Paul Cassell —sue you for defaming them—though they claim you can’t sue them for falsely accusing you of a crime.

Welcome to the Kafkaesque world of American justice. But Kafka was writing fiction when he described the ordeal faced by Josef K in his famous novel, “The Trial.” What I have described is real. It is happening to me right now. And if it can happen to me, it can happen to anyone.

I now stand accused of crimes I did not commit, by an unnamed woman who I don’t know and never met. I am also being sued for defaming my accusers. I still have no opportunity to respond in court to the false charges, though I am now seeking to intervene in the lawsuit in which the accusation was filed. I have submitted a sworn statement denying the accusations with great specificity. The court has not yet decided whether to accept my motion.

I feel like a victim of a drive-by shooting or the object of scribbled graffiti on the wall of a bathroom stall. I may never have the opportunity to prove my innocence, or to have my accusers prove the false charges, in any court of law. But because I am relatively well known—a double-edge sword in these situations—I can at least fight back in the court of public opinion, though at the very high cost—in legal fees, loss of insurance coverage and the possibility of a large monetary judgment against me.

Imagine the same thing happening to a person who did not have the resources to fight back.

There is a gaping hole in our legal system that allows lawyers to bring irrelevant accusations against innocent nonparties in court papers that insulate them from any consequences, and to deny the falsely accused any opportunity to respond.

The law must be changed to shatter this hall of mirrors I face and others might. There must be consequences for those who file accusations with no offer to prove them and no legal responsibility if they are categorically—and disprovably—false.

I will not rest until this gaping hole is filled with reasonable safeguards, so that what is happening to me can never happen to another innocent person.

Mr. Dershowitz is a professor of law emeritus at Harvard Law School and the author of “Terror Tunnels: The Case for Israel’s Just War Against Hamas” ( Rosetta Books, 2014).

Posted on January 15, 2015, in Postings. Bookmark the permalink. Leave a comment.

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