Guilt by Accusation

by Alan Dershowitz

  It is, of course, possible that Giuffre’s lawyers are seeking hush money from these and other prominent figures who have been accused by Giuffre, whether falsely or truthfully. Anyone who doubts that Boies and his firm are capable of such tactics need only look at the case of Emma Cline, a young novelist who received the Boies treatment.

  Boies and his firm represented the ex-boyfriend of writer Emma Cline, who wrote the acclaimed novel Girls, a fictional account of a woman’s relationship with Charles Manson. The ex-boyfriend, Chaz Reetz-Laiolo, alleged that she stole his writing for her book and invaded his privacy via a spyware program named Refog installed on her laptop. Reetz-Laiolo had use of her computer during their relationship, and later bought it from Cline after their romance ended.

  In an effort to “settle” the case, Boies and his team sent Cline and her lawyers a draft complaint—with Boies’ name—that sought to stop the sale of Girls and a movie deal based on the book.

  The draft complaint came with a not-so-veiled-threat of what would happen if no settlement was reached. As The New Yorker reported,

  “Boies Schiller responded by sending a hundred-and-ten-page draft of a complaint that it said it was prepared to file in court if the two sides did not reach a settlement. David Boies’s name appeared at the top of it. Reading through the allegations, Cline was stunned to find a section titled “Cline’s History of Manipulating Older Men,” which purported to illustrate how Boies Schiller would easily discredit her arguments about her former boyfriend’s treatment of her before a jury. “[E]vidence shows that Cline was not the innocent and inexperienced naïf she portrayed herself to be, and had instead for many years maintained numerous ‘relations’ with older men and others, from whom she extracted gifts and money,” the section began. What followed were thirteen pages containing screenshots of explicit chat conversations with lovers, including one in which Cline had sent a naked photo of herself (the photo was blacked out in the letter) to a boyfriend, explicit banter with people she’d met online, and snippets of her most intimate diary entries. All of this material had been recorded by the spyware and remained on Cline’s old laptop, which Reetz-Laiolo now had in his possession.”

  Cline’s lawyers disclosed the draft complaint with these salacious materials.

  In their counter complaint54, Cline’s lawyers minced no words in describing Boies Schiller’s tactics.

  His [Reetz-Laiolo’] allegations follow a pattern that started during their relationship – and apparently fits with the playbook of his counsel – of prying into and exploiting Cline’s sexual history to threaten her, even going so far as to make the false and absurd claim that she was an “escort.” Reetz-Laiolo and his counsel’s extreme and aggressive campaign against Ms. Cline moved into farce when they implied that Reetz-Laiolo’s damages from his “injuries” could approach “billions” of dollars.”

  As with Giuffre, it was only after Reetz-Laiolo met lawyers from the Boies Schiller law firm that he apparently hatched a plan to turn a frivolous and time-barred legal claim into a big-day payout:

  “Because of the Refog program, which had captured and stored records of Cline’s computer activity while she owned the computer, Reetz-Laiolo has been in possession of a trove of personal information about Cline since he purchased her computer in 2013, including her private correspondence, journal entries, intimate web browsing history, and photographs… However…even after he discovered the Refog program, Reetz-Laiolo did not immediately understand the extent of what he had in his possession. It was only in 2016, after he began to realize the weakness of his copyright claims against Cline, that Reetz-Laiolo realized he could exploit this trove of Cline’s most personal information. Thereafter, in keeping with his long history of using extortionate threats to control. Cline, Reetz-Laiolo hatched a plan to exploit this information to shore up his wilting copyright claims, and extract a financial windfall from Cline and Random House through alternative means… [H]e threatened to reveal her past use of the Refog software not because he believed he had a credible claim, but in order to extort the maximum financial settlement from Cline.”

  Although the Boies Schiller law firm knew or should have known that Reetz-Laiolo had no credible legal claim, they went ahead with the lawsuit. As Cline’s lawyer recounted:

  On March 30, 2017, Reetz-Laiolo’s counsel followed up on their February 21, 2017 letter with a draft complaint setting out their supposed claims detail (the “First Draft Complaint”). In the First Draft Complaint, Reetz-Laiolo and his counsel went far beyond what would be necessary to set out claims based on Cline’s use of the Refog software and for copyright infringement. The First Draft Complaint made aggressive, transparently threatening use of personal information Reetz-Laiolo had found in the cache of Refog data that he considered most likely to humiliate Cline. [E]mboldened by a perceived legitimate legal “hook,” he and his counsel included in the First Draft Complaint screenshots of Cline highlighting and copying erotic literature from the internet into a document…, alleging that these were a further example of Cline’s “plagiarism.” However, the First Draft Complaint identified no corresponding instance of any language from the cited erotica appearing in any of Cline’s work. These allegations were included in the First Draft Complaint purely to humiliate Cline, and bully her and her publisher into settling for an unreasonable sum rather than have this extraordinarily personal information aired in open court.”

  If that was not bad enough, the Boies Schiller firm doubled down in their revised draft complaint:

  “A revised draft complaint (the “Second Draft Complaint”)…falsely accused Cline of being an “escort,” and attempted to sexualize and smear her platonic relationship with a benefactor (who it also named). In short, the Second Draft Complaint, with the imprimatur of the Boies Schiller firm, followed an age-old playbook: it invoked the specter of sexual shame to threaten a woman into silence and acquiescence.”

  This episode was reported on in The New Yorker55 and The New York Times56, and Boies Schiller was criticized for its behavior. (David Boies has just been criticized for his role in the Weinstein case.) Legal ethics scholar Professor Stephen Gillers told The New Yorker, “Lawyers can refuse to engage in tactics they find morally repulsive. This is especially true here because the screenshots, even if not entirely extraneous to the dispute, are of barely marginal relevance.”57

  Boies Schiller’s General Counsel stated that David Boies had no involvement in the matter: “Boies had nothing to do with the draft or filed complaint, but he did participate in one settlement discussion.”58 However, while Boies’ name was omitted from the complaint that was filed, the fact that he used his name in the draft complaint was obviously aimed at intimidating Cline and her lawyers. They refused to settle the case. A California judge ruled in Cline’s favor and dismissed Reetz-Laiolo’s lawsuit.59

  If these tactics sound similar to the ones allegedly used by Boies against Wexner, it is because they derive from the Boies “play-book.”

  Epstein’s death will not end the investigations. Among the mysteries that should be explored are whether Giuffre committed perjury when she accused Wexner and other prominent men of having sex with her, or whether Boies engaged in a “shakedown” and/or received hush money for Giuffre to cover up Wexner’s alleged crimes.

  51 See excerpts from Pottinger Affidavit in Appendix J.

  52 See supra pages 75-76.

  53 Oliver Wendell Holmes, The Common Law (1881).

  54 The counter complaint is available here https://32fc87n66z83fzh742e992fv-wpengine.netdna-ssl.com/wp-content/uploads/2017/11/Clinecomplaint.pdf, found in Vivia Chen, David Boies Is In Trouble Again with Women, The Careerist, Dec. 6, 2017, available at https://thecareerist.typepad.com/thecareerist/2017/12/boies-in-trouble-again.html (emphasis added)

  55 Sheelah Kolhatkar, How the Lawyer David Boies Turned A Young Novelist’s Sexual Past Against Her, The New Yorker, Dec. 1, 2017.

  56 Alexandra Alter, Sex, Plagiarism and Spyware: This Is Not You
r Average Copyright Complaint, New York Times, Dec. 1, 2017.

  57 Sheelah Kolhatkar, How the Lawyer David Boies Turned A Young Novelist’s Sexual Past Against Her, The New Yorker, Dec. 1, 2017.

  58 Vivia Chen, David Boies Is In Trouble Again with Women, The Careerist, Dec. 6, 2017, available at https://thecareerist.typepad.com/thecareerist/2017/12/boies-in-trouble-again.html

  59 Emma Cline’s ex-boyfriend’s copyright claim dismissed, The Guardian, July 3, 2018. https://www.theguardian.com/books/2018/jul/03/emma-cline-ex-boyfriend-copyright-claim-dismissed-the-girls

  CHAPTER 10

  The Weaponization of the Media to Defame and Sue

  Unsavory lawyers have developed an insidious tactic by which they can falsely accuse innocent people and then sue them for defamation if they deny the false accusations. These lawyers have weaponized the media in aid of this tactic. Some journalists—such as Julie Brown of the Miami Herald and Connie Bruck of The New Yorker—have worked hand in hand with these lawyers to promote their own careers and ideological interests over a commitment to the truth. This is how this dangerous partnership works: the lawyers pressure a client into making a false accusation, but they are careful to make it only in court documents that are protected by the so-called litigation privilege, even if it is irrelevant to the court proceeding, as the Judge ruled it was in my case; this privilege protects anything said in a court document or proceeding from a defamation suit. The false accuser or her lawyers then leaks the judicially protected false accusation to media, which is also protected against a defamation suit for reporting on what was said in court papers or proceedings. The media then publishes the false accusation without requiring the false accuser to repeat the accusation to the journalist outside the protection of the privilege. The false accuser and her lawyers can in this way “launder” defamatory accusations through the media and achieve the same result they would have achieved had they made the accusation directly to the news media, but—and here is the critical element—without incurring the risk of a defamation suit for making a false accusation. Moreover, because the accusation is made in court papers, some readers believe it has the imprimatur of the courts and is, therefore, more credible than if it had been made directly to the media.

  The victim of the false accusation then has only three options. The first and most obvious is that he can immediately respond to the media report of the false accusation in the media. But his response may not be protected by the litigation privilege, because it is not made in court papers or proceedings. He can, therefore, be sued for defamation for merely denying the accusation and saying it is a lie.

  The second option is to respond in court documents or proceedings and thus be protected by the privilege. But filing court papers or appearing in court takes time, and it is imperative to respond to false accusations immediately—within the news cycle—if the denial is to be reported and credited. A court filing made days or weeks after the initial accusation was reported in the media will either not be reported or, if reported, will be buried.

  The third option is to ignore or “no comment” the accusation and hope it goes away. An entirely innocent, falsely accused victim should not be satisfied with the story going away. He should categorically deny and disprove the false accusation.

  I chose the first option—immediately responding in the media. I went on television and categorically denied the charges and accused my false accuser and her lawyers of making up the entire story. I wrote an op-ed for the Wall Street Journal in which I exposed the tactic of the lawyers and warned that what they did to me could be done to other innocent victims, unless something is done to end this abusive tactic. Here is some of what I wrote on January 14, 2015:

  You challenge the . . . 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 accusations . . . 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 then described how I felt:

  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-edged 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.

  Finally, I proposed a remedy:

  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.60

  But the law has not yet been changed, and so the insidious and unfair tactic is still being deployed, with the assistance of the media. It encourages and incentivizes the leveling of knowingly false accusations in court filings that are then deliberately leaked to the media and published by them without any corroboration or on-the-record confirmation. The United States Court of Appeals for the Second Circuit has, however, recently cautioned the media against allowing itself to be weaponized in aid of this tactic.

  Here is the “note of caution,” issued by Judge Jose A. Cabranes, “To the public regarding the reliability of court filings.” It should be read and acted on by every media publisher, editor, journalist and reader.

  Materials submitted by parties to a court should be understood for what they are. They do not reflect the court’s own findings. Rather, they are prepared by parties seeking to advance their own interests in an adversarial process. Although affidavits and depositions are offered “under penalty of perjury,” it is in fact exceedingly rare for anyone to be prosecuted for perjury in a civil proceeding.

  . . . .

  Moreover, court filings are, in some respects, particularly susceptible to fraud. For while the threat of defamation actions may deter malicious falsehoods in standard publications, this threat is non-existent with respect to certain court filings. This is so because, under New York law [and the law of most other states], “absolute immunity from liability for defamation exists for oral or written statements made . . . in connection with a proceeding before a court.” Thus, although the act of filing a document with a court might be thought to lend that document additional credibility, in fact, allegations appearing in such documents might be less credible than those published elsewhere.

  [T]he media does the public a profound disservice when it reports on parties’ allegations uncritically. . . . Even ordinarily critical readers may take the reference to “court papers” as some sort of marker of reliability. This would be a mistake.

  We therefore urge the media to exercise restraint in covering potentially defamatory allegations, and we caution the public to read such accounts with discernment.61 (Emphasis added.)

  Judge Cabranes’s wise caution raises a broader issue of journalistic ethics. Should the media report an accusation by an accuser in court-protected documents, when the accuser is not prepared to make that accusation on the record, outside the protection of the litigation privilege? The truth or falsity of accusations made in a court pleading cannot generally be tested or challenged in a judicial proceeding. If the accuser is not even willing to make the accusation on the record with a journalist, it seems unfair for that journalist to repeat the accuser’s
accusation, especially if uncorroborated.

  Why would a reporter who is interested in the truth not press an accuser to repeat and defend her accusation on the record? If the accuser refuses, the reporter should, at the very least, report that refusal. (As we see in the pages to come, many journalists do not even do that, especially with #MeToo accusations.)

  This issue needs to be debated both within the media and by outside experts.

  By publishing accusations made only within the litigation privilege, without requiring the accuser to go on the record, the media encourages deliberately false accusations made out of extortionate, vengeful or other improper motives. Because there are no legal consequences for the accuser—even if the accusation is proved false—such accusations will increase, especially in the current #MeToo era, when it is a political sin to disbelieve a woman, even if there is evidence that she is lying. A heavy burden of proof is on the accused to prove his innocence, and even if he satisfies that burden—as I did—there will be those who continue to believe the accuser.

  The media should require all accusers to repeat accusations they made in court submissions to a journalist, on the record, before spreading a potentially false accusation around the world. But they generally don’t.

  The worst offender in this regard is Julie Brown of the Miami Herald. Brown calls herself an investigative journalist, but in reality she is a one-sided polemicist who gets her information not from independent investigations, but rather from adversarial lawyers who are interested in promoting an agenda rather than in reporting complex and nuanced truths.