The case was a close one at trial.  Judge Gifford’s one-sided rulings shifted the balance against Tyson in what was otherwise a difficult prosecution.  Even without all this exculpatory evidence, the initial jury vote was six to six.  Eventually, the six who voted for conviction were able to persuade the six who voted for acquittal that there was no reason to disbelieve Desiree Washington’s account.  But that account, especially when reviewed against the background of the information that is now known, is extremely unconvincing.  

What then was Desiree Washington’s account of what happened that night?

Although Desiree Washington insisted she had no interest in having sex with Tyson, she acknowledged that she led him on and that she acted like a groupie would behave.  The director of the Miss Black America Pageant, in which Desiree was a contestant, even criticized her for behaving like a “groupie.”  She sat in his lap and hugged him during the pageant rehearsal when they first met.  She showed him a picture of herself in a bathing suit, gave him her hotel room number and agreed to go out with him. She took his call at 1:45 in the morning and agreed to come down to meet him in his limo.  She then went into her bathroom and put on a panty liner to keep her expensive borrowed dress from becoming stained by the beginning of her menstrual flow during the partying and sightseeing she said she expected to do over the next several hours. She willingly accompanied Tyson to his hotel room at 2:30 in the morning, sat with him on his bed, and she then went into his bathroom and removed her panty liner without replacing it. How did she expect to prevent her borrowed $300 outfit from becoming stained over the next several hours of anticipated partying and sightseeing?  The most plausible explanation for the removal and non-replacement of the panty liner was that it was done in anticipation of consensual sex.


Moreover, if she did not want to have sex, she could easily have locked herself in the bathroom and called for help from the bathroom phone.  The bathroom had a working lock and a phone.  Instead, she willingly came out of the bathroom, passed a door leading to the outside corridor and went back to Tyson's bedroom, where they had sex on the bed.

According to Washington's own testimony, Tyson asked her, during their sexual encounter, whether she wanted to "get on top" and she responded "yeah,” and proceeded to get on top—not the usual position for a rape victim!

Mike Tyson had every reason to believe that Desiree was just another groupie looking for sex with a celebrity athlete.  The "rules" of groupie sex are well known to both groupies and athletes.  The groupies want sex with superstars in exchange for bragging rights that they slept with the "high-scorer," the "champ" or the "star." Some, like Washington, hope that the star will fall for her and make her rich and famous. Indeed, several other contestants - - friends of Desiree - - testified that after meeting Mike Tyson, Desiree bragged to her friend that she was going out with him because "this is Mike Tyson.  He's got a lot of money.  He's dumb.  You see what Robin Givens got out of him."  She told another friend that "Robin Givens had him.  I can have him too ... He's dumb anyway."  To her roommate, she said: "Mike doesn't have to know how to speak well.  He'll make all the money and I'll do the talking."


Tyson testified that he was blunt, direct and unambiguous about what he wanted from Washington. When he asked her out—in front of a witness—she suggested a movie or dinner. But he said no: "That's not what I [have] in mind... I want you.  I want to fuck you." The witness—Johnny Gill, a singer—testified that Tyson said, "I want to fuck."  Gill later asked Tyson how he could be so straightforward with women, and Tyson explained that he is used to saying what is on his mind.

Desiree Washington knew full well that Mike wanted to have sex with her when she went to his hotel room after two o'clock in the morning.  Yet she testified that she had no idea that Tyson had any interest in having sex. How any rational person could believe that, especially in light of what is now known about Washington, is mind-boggling.  She may have been disappointed and hurt when he treated her like a groupie—a one-night stand—rather than as a continuing romantic interest. She realized that she could not exploit his sexual interest in her the way Robin Givens had done, and she was afraid of the reaction of her friends and family when it became known that she had indulged in a one-night stand with Tyson.  A friend of hers told the press that Desiree "only cried rape" after her furious father found out she'd had sex with Tyson.  

Our investigation revealed that she had had previously engaged in consensual sex with an athlete—the high school football hero—and when her father found out about it and threatened to beat her, she lied to her father and told him she had been raped, thus falsely accusing the football player.  

Our investigation also uncovered that Desiree’s father had a history of violence toward her.  According to a news report, Desiree’s mother had her father arrested and charged with assault and battery against Desiree.  “In her account,” reported in the media, “Desiree alleged to the police that her father ‘hit me and pushed my head under the sink…He continued slamming my head into the wall and the floor.  I freed myself and reached for a knife to protect myself.’”  A sworn statement by the mother reportedly said that her husband “flew off the handle” when Desiree told him “she had lost her virginity.”  

In order to avoid his fury once again, this time for having consensual sex with Tyson, she apparently decided to cry rape once again.  At first, she said that he had "tried" to rape her.  She initially denied having sex with Tyson. Then she said they had sex "on the floor."  She told the female chaplain at the hospital that there had been some "participation" and consensual physical involvement on her part, before he forced her.  Finally, she settled on the account she gave at trial: that he had raped her on the bed with no prior consensual involvement on her part. 

No one except Tyson and Washington knows exactly what went on behind the closed doors of his hotel room.  There was no videotape.  Nor was there any physical evidence to corroborate Washington’s unlikely story.  Indeed, the available physical evidence completely undercuts her story.  She was wearing a sequin-studded outfit, which she claims Tyson “yanked” off her as he “slammed [her] down on the bed.”  If that had happened, there would have been sequins all over the hotel room.  Indeed, at the trial, when the dress was gingerly introduced into evidence, sequins fell off in the courtroom.  But only one sequin was found in Tyson’s hotel room after the allegedly forcible rape.

Nor were there any bruises—external or internal—found on Ms. Washington that were consistent with her account of how Tyson had “forced” her to have sex.  She testified that Tyson “slammed [her] down on the bed,” got on top of her, held her down with his forearm across the chest, and forced himself inside her.

Had the 230-pound, muscular Tyson done that to the 105-pound, slight Washington, there would have been bruises, welts, contusions, and even broken ribs.  Yet there was not even the slightest bruise on Washington’s body when she went to the hospital just hours after the sexual encounter.  The doctors found only two tiny microscopic abrasions, which, according to leading experts, are perfectly consistent with consensual sex—especially if the man has a larger-than-average penis or the woman a smaller-than-average vagina.  Such tiny abrasions are also more likely when two people have consensual sex with each other for the first time and are not used to one another’s sexual movements and desires.  Mike Tyson’s account of what occurred, on the other hand, was entirely consistent with the physical evidence.  And it would have been corroborated had the judge not excluded the three objective eye witnesses who saw them necking and kissing just moments before they went to his hotel room.  

Despite the absence of physical evidence to corroborate Desiree Washington's story, the jury eventually believed her because there was no compelling reason to disbelieve the testimony of a young, religious, sexually inexperienced "girl" who had no possible motive to put herself through the agony of a rape trial.  But it turns out that there were very good reasons for not believing her.  As one juror subsequently put it: "She was very, very credible [at the trial], but now she's not credible at all. Right now, I wouldn't believe anything she said.  I would sign an affidavit that if we had known about the money, I couldn't have voted to convict him. Mike Tyson deserves a new trial."  

In light of the numerous errors made by Judge Gifford at the trial, this should have been the easiest appeal I ever argued.  The law, the new evidence and the judicial and prosecutorial errors made at trial, clearly required a reversal of the conviction and a new trial.  

Legal experts who read our brief and heard the oral argument concluded that we should win the appeal.  The law was on our side.  The facts were on our side.  And our briefs and arguments were much stronger than those of our opponents.  As the legal expert who reported on the trial and appeal for USA Today put it after watching the appellate argument: 

     “Ex-heavyweight boxing champion Mike Tyson had his best day in court Monday.

     As Tyson completed day 328 of his six-year prison term for rape, famed appellate lawyer Alan Dershowitz vigorously attacked: Tyson’s accuser, Desiree Washington; trial judge Patricia Gifford; and the Marion County (Ind.) prosecutor’s office.  

     In spite of a trial record filled with mistakes, omissions and elementary errors by the fighter’s ex-defense team, Dershowitz and colleagues argued that Tyson’s conviction must be set aside…The major arguments cited by Mike Tyson’s attorneys Monday in appeal of his rape conviction [were the following]:

          -Trial judge Patricia J. Gifford erred by blocking testimony from witnesses who might’ve challenged the credibility of accuser Desiree Washington
          -Gifford’s refusal to allow the jury to hear an instruction regarding “mistake of fact, or “reasonable belief” concerning whether Tyson believed Washington wanted to have sex with him.
          -Gifford should have prevented jurors from listening to Washington’s call to 911 reporting the alleged attack.  Defense claims Washington invited the attack to sue Tyson, and that the call might have been part of the scheme.
          -The prosecution committed misconduct by concealing from the defense an attorney-fee agreement for book and film rights to Washington’s story.
          -Prosecutors manipulated court selection procedure to pick a supposedly sympathetic judge.
          -The judge should have stopped prosecutors from arguing before the jury that the defense is not obligated to tell the truth.

     … 

     “Tyson got his money’s worth Monday…Reversal of a criminal conviction by a jury is rare, but Tyson’s attorneys might have successfully pinpointed the crucial issues that will free him.”

I am convinced—and I think most observers were convinced—that if Tyson had gotten a second trial with all the new evidence before the jury, he would have quickly been acquitted.  But this was Indiana. They had a trophy in Tyson.  And they had a trial judge determined to prevent a new trial that would have embarrassed her and freed Tyson.  The conviction was eventually affirmed on a two to two tie vote by the Indiana Supreme Court, with the chief justice disqualifying himself from participation in the decision on a phony pretext.  He sent his wife to speak to me during a Yale Law School event.  She said, “your New York style won’t work in Indiana.”  I asked who she was, and when she identified herself as the wife of the chief justice, I quickly moved away saying, “We can’t talk.”  He used this contrived encounter as an excuse to disqualify himself.  I believe that the real reason he got out of the case was because his own previous decisions would have required him to vote for reversal, and if he did, the public would be reminded that he himself had been accused of sexual impropriety with a law clerk by a fellow judge.  

In my half century of practicing law throughout the world, I have never encountered a more thoroughly corrupt legal system than I did in 1992 in Indiana and a less fair trial and appeal than those accorded Mike Tyson.  If hard cases make bad law, then the Tyson case proves that unpopular celebrity defendants often receive bad justice.  If Mike Tyson had not been a celebrity, with a reputation for toughness, and if he had a zealous lawyer experienced in rape cases and a fair judge, he never would have been convicted of a rape he didn’t commit.  If he had been convicted in a different state, or at a different time, his conviction would have been reversed.  The deck was stacked against Tyson and he paid a heavy price—loss of his career, and several years of hard prison time—for a consensual one night stand with a young woman who apparently regretted her decision and then decided to exploit it for money.

Different perceptions on Rape

My decision to represent Mike Tyson on appeal generated considerable controversy and some outright animosity.  Rape is a highly emotional issue, like abortion.  Extremists on both sides of such issue tend to see things in black and white terms.  

It used to be thought that there were some lines that were crystal clear.  Remember the old quip about not being a “little bit pregnant” or a “little bit dead”?  But today it may matter greatly whether a woman is a little bit pregnant or a lot pregnant.  The right to have an abortion may turn on the trimester of the pregnancy.  Even the issue of what constitutes “death,” that absolute of absolutes, may now be hotly disputed in close cases.  

Polemicists and absolutist on all sides of these and other gray-area issues refuse to recognize matters of degree.  To an absolute right-to-lifer, life begins at the moment of conception and is as sacred then as it is at the moment before birth.  To an absolute pro-choicer, a woman’s right to terminate pregnancy is as compelling in the last trimester as in the first.  Some radical feminists, such as Judge Gifford, regard acquaintance rape in which the man honestly but mistakenly believes his friend has consented as indistinguishable from a stranger rape at knife point.  A letter to the editor critical of columns I wrote on date rape made the point as follows:  

     Dershowitz further endears himself by explaining that date rape and acquaintance rape is an area in which differing perceptions may produce inadvertently false testimony about actions that fall into a gray area.  Let me explain something:  No means no.  There is no gray area.

But in many date rape situations, the alleged victim didn’t say no.  Nor did she say yes.  There are grey areas.

I received countless letters, phone calls, and personal attacks denouncing me for agreeing to represent Tyson on his appeal.  Here are some excerpts from the letters:

     It’s too bad that a punk like Tyson can afford to pay for the top legal representation…but since you had the right to refuse to represent him, I fault you!

     It saddens me that you yourself continue to worship at the altar of the great god of violence and fear of women.

     Mr. Tyson is a convicted rapist with obvious psychological problems who needs a psychiatrist not an attorney who will argue excuses for his behavior!  If, through your efforts, Mike Tyson is not held accountable for his behavior, then you do a disservice to all women and we become victims of a pandemic legal system gone awry!

     Mike Tyson?  He doesn’t deserve the best—it’s a shanda!!  (“Shanda” is the Yiddish for “shame.”)

     When you choose to represent someone like Mike Tyson, you attach the Jewish community to your action…I now find it hard to understand how you can mount a passionate defense for a convicted rapist.

     Shame on you, Alan Dershowitz, if you handle this appeal.

The most surprising response came from some Harvard Law School students, who should understand that our adversary system of justice requires that all convicted defendants be accorded a zealous appeal.  

I don’t know what actually took place in Mike Tyson’s hotel room on that fateful night, but it may well have fallen into the category of gray area.  He believed that she wanted to sleep with him.  She may have been ambivalent or sending mixed signals (though I doubt it).  It was a close case and Tyson was entitled to have his defense presented vigorously, both at trial and on appeal.  

Yet several of my students strongly objected to their teacher representing “a convicted rapist.”  A couple of them even threatened to file “sexual harassment” charged against me because my representation of Tyson created a “hostile environment” for students who believed he was guilty.  

The protest then broadened to the way I discussed the crime of rape in class.  In my criminal law class, I teach the law of rape as an example of a cutting-edge subject that poses a sharp conflict between the rights of defendants and their accusers.  As usual, I take a “devil’s advocate” position on politically correct issues.  For example, although I personally oppose capital punishment, I argue in favor of the death penalty and ask the students to come up with better arguments.  Unless they can, they will never be able to persuade the majority of Americans, including judges, who favor the death penalty.  

Similarly, in the area of rape I present positions that students are reluctant to defend but which many Americans believe.  I point out that according to FBI statistics, rape is both the most underreported and the most overreported crime of violence:  For every reported rape there are an estimated ten than are not reported; but at the same time, a significant percentage of all reported rapes turn out to be unfounded, and this rate of false reports is higher than for other violent crimes.

All in all, my classes on rape tend to be controversial and emotionally charged.  The majority of students seem to love the exchanges.  Some even change the opinions they brought to class.

But my “devil’s advocate” views on rape are “politically incorrect.”  Indeed that is precisely why I insist that they be expressed.  The education of my students would be incomplete if they heard only the comfortably “correct” views.  I tell my students that my job is not to make them feel good about their opinions but rather to challenge every view.  That is what the “Socratic method” of law teaching is all about.  That is also what the real-life practice of law demands.

A small group of students complained about my teaching rape “from a civil liberties perspective.”  I responded that it was important for the students to hear a variety of perspectives about rape, just as they hear, without objection, about other crimes.  I also reminded them that the majority of students who speak in class present the “politically correct” views.  I told them that the answer to an offensive argument is not to censor but rather to come up with a better argument.  

One of the students then told me that several radical feminist students had met and decided on a course of action:  they would use the student evaluations at the end of the semester to send a message to professors who don’t follow the “party line” in teaching rape.  She warned that I should expect to be “savaged” in this semester’s evaluations.  

When the evaluations arrived, I realized how dangerous it would be for an untenured professor to incur the wrath of the political-correctness patrol.  Most of the students appreciated the diversity of viewpoints (“willingness to broach sensitive subjects and take unpopular viewpoints,” “very good at presenting alternative views, “helped me get a less dogmatic view of the law,” “open to criticism,” “the most engaging class on campus,” “the most intellectually honest professor I’ve had,” “eagerness to present views with which he disagrees is a tremendous asset,” “as far left as you can get [but] he’ll be assailed by the politically correct for challenging their knee jerk reactions,” “fair in presenting sides that usually aren’t raised.”)  But this time, a small group of students used the power of their evaluations in an attempt to exact their political revenge for my politically incorrect teaching.  One student said that I do “not deserve to teach at Harvard” because of my “convoluted rape examples.”  Another argued that women be allowed an “option” not to take my class because I “spent two days talking about false reports of rape.”  Another demanded that my “teaching privileges” be suspended.  One woman purported to speak for others:  “Every woman I know in the class including myself found his treatment of rape offensive and disturbing.”  

Although I always try to learn from my evaluations, I refused to be bullied into abandoning a teaching style that I believe is best designed to stimulate thinking.  It takes no courage for me to exercise my academic freedom, since I have tenure.  But if I were an untenured assistant professor, would I have the courage to risk the wrath of the P.C. cops?  Are other, less established, teachers being coerced into changing their teaching by the fear of negative evaluations, which can be fatal to tenure?  You bet they are, and it poses a real danger to academic freedom and good education.  One criminal law professor told me that he searches for casebooks that don’t cover rape:  “If it’s covered in the book and I skip it, I get criticized.  And if I discuss it, I get criticized.  This way I can blame it on the book.”  Talk about lack of courage!

I told the students who threatened to charge me with sexual harassment to go ahead and make my day.  I would love to defend against such a charge, by demonstrating their misuse of the serious moral crime of real sexual harassment.  I have represented women who have experienced real sexual harassment—including a graduate student who was explicitly told by her faculty advisor that the quality of her recommendation would depend on whether she slept with him—and I understand the enormous pain it can cause.  In that case of quid pro quo sexual harassment, there was no grey area.  The professor was as clear as could be.  The student told me that she had really thought the professor liked her because of the excellent work she had done for him.  Now she wasn’t sure.  She was devastated.  Her self confidence was shattered.  She wanted justice.  She also wanted to make sure that her career as an academic would not be hurt by her refusal to “go along” with the offer of a good recommendation.  That was real sexual harassment!  Listening to views about rape that are different from your own isn’t sexual harassment.  It’s called education.  

I advised the sexually harassed student to file a complaint and bring a lawsuit.  She agreed.  I explained to her what a complaint would entail.  She said she understood and was prepared to endure depositions, cross examinations, and other attacks on her.  The next day she came to my office and told me she couldn’t go through with it.  She was terrified that it would destroy her prospects for an academic appointment to take on so influential and powerful an academic.  She was also afraid that if she did nothing, he would carry out his threat to write her a bad recommendation.

I suggested that she talk to the professor and tell him that she had consulted me but had decided not to fill a complaint or lawsuit and that she hoped that he would give her the recommendation she deserved.  She did that and eventually received a superb recommendation.  She is now teaching at a fine university.  So is he.  

The students in my class never followed through on their threat.  

Some women do lie

I continue to challenge the students by teaching both about cases in which guilty rapist are wrongly acquitted, and cases in which innocent people have been falsely accused of rape.  I teach that when it comes to the serious crime of rape, it appears that both men and women lie, exaggerate, or misremember more often than with other, less emotionally charged, crimes.  Here are some examples:

A Dedham, Massachusetts, woman accused four men of rape.  Several days later the charges were dropped because the accuser recanted when approached by the district attorney with inconsistent forensic evidence along with information that she had falsely accused other men.  The names of the falsely accused men were published in the press, but the false accuser’s name was withheld.

St. Paul, Minnesota, police determined that within one week, two reported rapes were false.  In the first case, a woman reported being abducted and raped by a man who hid in her car as she gave a talk to a chemical dependency treatment group at a local high school.  When police checked the story, they found that the treatment group had never heard of her and that she didn’t own a car.  In the second case, a sixteen-year-old girl claimed to have been abducted at a downtown bus stop, imprisoned in a closet, and sexually assaulted by a man and his son over a thirty-three-hour period.  In reality, the woman had been seen with her boyfriend several times over that thirty-three-hour period and had apparently been bruised by him.  In both cases the women gave police detailed descriptions of their attackers and in both case the alleged assailants were black.  

A seventeen-year-old girl from Washington State accused three twenty-year-old men of holding her down and raping her.  Several days after the men were arrested, the woman recanted saying she had the whole thing up out of spite.  In a statement to police, the woman admitted, “When I was leaving [he] called me a whore and a slut…and I became very angry and decided over the weekend that I would get back.”

In Rhode Island, a college student reported that her former boyfriend raped her at gun point.  She admitted that she made up the entire story after learning that the man she accused was 1,500 miles away at the time.

In New York, a woman who claimed she was raped at gun point in Central Park was arrested after it was discovered that she had filed eleven false reports of rape.

In Nebraska, a woman was required to broadcast an apology to a man she had falsely accused of raping her in order to “get the attention of her husband.”


In Great Britain, a number of highly publicized rape accusations turned out to be false.  A nineteen-year-old girl woman from Lincolnshire accused her former boyfriend of raping her after she spent the night with a different man.  A jilted  nurse falsely accused her former lover of beating her and also falsely accused his best friend of raping her.  After analyzing several such cases, Angela Lambert, a British journalist, concluded that there are “plenty of reasons why a woman might falsely accuse a man of rape.”  She went on to argue that “the belief that all women are truthful and all men are rapists does not prove us good feminists; quite the contrary.  It reveals us as prejudiced, narrow-minded, and as bigoted as any racist.” 80 

The reality that rape is the most falsely reported of crimes must not blind us to the equally important reality that rape is also the most underreported of crimes.  Many rapists still go free and repeat their predatory crimes.  

Moreover, “acquaintance” or “date” rape is an area which differing perceptions may produce inadvertently false testimony about actions that may well fall into the gray area between aggressive seduction and criminal sexual assault.  When it comes to sexual encounters, both men and women often “remember” differently from what a videotape would show.  The truth-testing mechanisms of our criminal justice system must not be compromised in the service of some “politically correct” notion that when it comes to rape only women always tell the truth. 

This bias is an wrongheaded as the anachronistic bias, reflected in the writings of Wigmore and others, that men are more likely to tell the truth than women.  

A highly publicized case in 2011 may well illustrate the reality that both men and women may lie, even when a rape has occurred.  A cleaning woman in a fancy New York hotel accused Dominic Strauss-Kahn—then the head of the World Bank—of forcing her to have oral sex with him.  His lawyers first denied that there had been any encounter, claiming that he had an alibi.  He was having lunch with his daughter at the time.  When his DNA evidence was found on her underwear and in the area of the room where she said he ejaculated, his lawyers changed their tune, admitting the oral sex but insisting it was entirely consensual.  DSK, as he was known throughout the world, was indicted for sexual assault.  

Within days, the credibility of the alleged victim began to fall apart.  She had made false statements on her application for asylum, including a claim that she had been gang-raped back in Guinea, where she grew up.  A recorded phone conversation between her and a friend in prison also suggested, though her words (translated from a local African jargon) were ambiguous, that she may have had a financial interest in suing the wealthy man who she said assaulted her.  

Eventually, the Manhattan District Attorney decided to drop the charges.  I thought that this was a perfect teaching vehicle and I invited the alleged victim’s lawyer to join in the class in which I assigned the D.A.’s memorandum seeking dismissal.  It was a spirited class, after which several students told me they had changed their minds—both ways.  One student described it as “Rashamon—first, I thought he was guilty, then not guilty, then guilty and finally ‘I’m not sure.’”  I pressed the students on what the appropriate standard should be for a D.A. to drop a rape prosecution when he had doubts about the alleged victim’s credibility.  Some argued that as long as he believed the crime had occurred, he should let the jury decide, based on all the evidence, including the DNA and other circumstantial proof.  Others argued that he should never bring a prosecution unless he has complete faith that the alleged victim is being truthful.

In order to put some flesh on the bones of these abstract arguments, I decided to role-play the prosecutor’s closing argument.  Here is what I said:

     “The alleged victim in this case says she was forced by DSK to give him oral sex.  His defense counsel have argued in the press, and in their briefs and in their opining statements that the oral sex was entirely consensual.

     In deciding which version is true and which false, I want you to accept the fact that the alleged victim has told many lies in the past and can’t be completely trusted.  In other words, if there were no other evidence or arguments beyond the uncorroborated word of the victim, there would be a reasonable doubt of DSK’s guilt.  But the totality of the evidence and arguments in this case establish that it is far more likely that the oral sex in this case was forced rather than consensual.

     First, I want you to look at the participants.  She is an attractive young woman who was wearing two pair of pantyhose and an additional undergarment.  The defendant’s DNA was found on the elastic of her undergarments, strongly suggesting that he was trying to pull them off.  

     You have seen the naked photograph taken of the defendant following his arrest, when he was examined by doctors for bruises.  Look at that photograph and imagine what the alleged victim in this case saw, when DSK walked out of the shower and into the bedroom naked, as his lawyers acknowledge he did. 

     In order to accept the defense theory of consensual oral sex, this is what you have to believe.

     The alleged victim looked at this overweight, out of shape, 6__ year old man and decided, without any words spoken, that she was so sexually attracted to him, that she simply had to give him seven minutes of oral gratification in the corner of the bedroom.  What was in it for her?  According to the defense theory, only the sexual pleasure of giving a short, fat, old man oral sex.

     That, in essence, is the defense lawyers’ version of what took place.  Now, we all know that the burden of proof is on the prosecution to prove our case beyond a reasonable doubt, and that the defendant need not take the witness stand nor offer any proof of innocence.  But in this case, the defendant, because he is a public figure, has put forward a defense—actually two defenses—though his lawyers in the courtroom and in the court of public opinion.  The first—that he wasn’t even there at the time because he was lunching with his daughter—has been withdrawn.  His current defense—his theory of innocence—is that she wanted to give him oral sex, that it was entirely consensual.  If you believe that—or even if you have a reasonable believe that she might have offered him oral sex because she was so attracted to him—you should acquit.  But if you believe, beyond a reasonable doubt, that the defense theory of consensual oral sex is utterly implausible, then you should look at the totality of the evidence corroborating the alleged victim’s account—that he forced her to give him oral sex—and decide whether it establishes beyond a reasonable doubt that her account is true.

     This corroborative evidence includes the location of the DNA in the room and on her undergarments; the shoulder pain she reported to the doctors; the time sequence; the absence of evidence that she knew who DSK was at the time of the encounter; and a comparison between the two participants, in terms of their ages, appearances, status and what each had to gain or lose by a consensual sexual encounter in that room.  

     When you consider the totality of the evidence and arguments offered in this case, I am confident that you will have no reasonable doubt that the oral sex in this case was not consensual.  

After hearing this “mock” argument, many of the students concluded that the D.A. acted harshly in dismissing the case.  Most believed that this was a case in which both the woman and the man had lied, but that the man’s lies were far more relevant than the woman’s on the issue of consent.  

By any objective standard, the case against DSK was far stronger than the case against Mike Tyson, since there was far more corroborative evidence in the former than in the latter.  Moreover, Tyson’s alleged victim was caught in a series of lies that directly related to her account of the alleged rape and her motive for bringing the charge.  

Yet Tyson was convicted and the case against DSK was dropped.  Such are the vagaries of rape prosecutions in which objective truth can rarely be established because when it comes to sex both men and women often distort reality.  

Male “Victims” Lie Too

Early in my career, I learned that men also lie, both as defendants and as alleged victims in rape cases.  One such case took place in Provincetown, Massachusetts.  A young woman who was related to an associate of one of my legal colleagues was engaged to a man and they were vacationing together in Provincetown.  The man went out for a stroll and came back several hours later upset and disheveled.  His fiancé asked him what happened and he told her that he was invited to go on a boat ride with a group of guys and one of them proceeded to rape him while the others did nothing to stop him.  He described the rapist as a black man wearing a shark tooth around his neck.  He reported the alleged rape to the police who immediately issued an all points bulletin describing the alleged rapist.  

The police interrogated the alleged victim, who persisted in his description of the sexual encounter as rape.  His fiancé called my colleague and asked her to advise him.   She sought my assistance.  We went to the police station where we observed the police interrogation of the young man.  As experienced defense attorneys, we soon became suspicious of his story, but we couldn’t be sure.  

My colleague asked to be alone with her client and questioned him about the circumstances of the encounter.  Eventually the young man broke down and admitted that he had consented to the sexual encounter.  He confided in her that he was uncertain about his sexuality, that he was about to be married, and that he wanted to test his attraction to men.  He was ashamed of what he had done and didn’t want his fiancé to find out, because he was afraid it would end their engagement.  My colleague insisted that the young man had a moral obligation to his fiancé and a legal obligation to the police to be truthful.  

At first, the young man refused, but my colleague, after conferring with me, told him he really had no choice, because she would be obligated to report his continuing crime of making a false report—a crime that endangered the life and liberty of anyone fitting the made-up description of the black man with the shark’s tooth.  (The young man didn’t want to get the man with whom he had consensual sex in trouble, so he invoked the stereotype of the “black man” rapist.)  My colleague told him that she would try to make a deal with the police under which he wouldn’t be charged with a crime in exchange for telling the truth.

The young man then told the police and his fiancé the truth.  The police called off the all points bulletin, and my colleague persuaded the police not to press charges against the young man.  I do not know how the engagement worked out, but I do know that I learned a great deal from this experience about the complexities of sexual encounters and the need to subject claims of rape to the usual probing of the adversarial process.    


Rape by cocaine?

Is it possible for a man to rape a woman even if he uses no force, she offers no resistance and appears to consent?  The answer is yes.  Under the law, her consent must be freely given and not the product of drugs, alcohol or other factors that may negate voluntary consent.  This is especially so, if the drug was administered to her by the alleged rapist without her knowledge.  This is a serious problem not only when “date rape drugs” are slipped into an unsuspecting woman’s drink, but when men deliberately get their dates drunk in order to lower their resistance.  In the former situation the law is clear:  It is not only rape; it is also a separate crime to drug a person against their will.  In the later case, the law is less clear:  A woman is generally deemed responsible for her own decisions—to drink, to get drunk, to agree to sex—but if a man takes unfair advantage of a woman’s drunkenness, he may cross the line into rape.  It’s very much a matter of degree.

Several years ago, I worked on a case raising these difficult issues.  My client was an accountant in a Western state, who had a reputation for seducing female secretaries who worked for him.  Seduction, of course, is not a crime, although it may constitute sexual harassment if the seduce works for the seducer.  In this case, the accountant’s office was set more for up for seduction than for work.  It was light on books and heavy on thick, plush rugs, couches, pillows and a fully stocked bar.  On the evening at issue, a young secretary stayed late after work and had dinner and several drinks with her boss and a few of his friends.  When the other guests left, they remained behind.  He walked her into his office.  She laid down on the rug.  He undressed her, performed oral sex on her and then engaged in sexual intercourse.  She did not object, and she appeared to be consenting—as others had apparently done in that office.  

During the sexual encounter he asked her if she was using birth control.  She said no, and as a result, he did not ejaculate in her.  Afterwards, she dressed herself, he walked her to the parking lot, kissed her, and she then drove home.

The problem was that she was engaged to another man and when she got home, he sensed that something was amiss.  After pressing her, she acknowledged having sex with her boss and said she must have been “drugged.”  They went to the police, claiming that her boss had given her a “mickey” which had denied her the ability to object or protest.  She told the police that she couldn’t say “no” even though she didn’t want to have sex.  She did, however, say “no” when her alleged rapist asked her if she was on birth control.  She also told the police, and subsequently testified before the Grand Jury, that she had ingested no cocaine prior to the night at issue.  So, when a test of her urine turned up positive for cocaine (though a test of her blood was negative), the police believed that the drug she had been given on the night at issue was cocaine.  

The police decided to wire the woman and have her try to get her boss to admit that he had used cocaine to seduce her—that is, to rape her.  The wired conversation consists mostly of the accountant bantering and joking with the secretary while trying to persuade her to continue to have a relationship with him.  She repeatedly asked him whether he had given her cocaine, and he said no.  At one point he jokingly said yes, but then immediately said he was “bullshitting her.”  When she asked him directly were you telling the truth or were you bullshitting, he responded, “I was bullshitting.” 

The accountant was prosecuted for rape.  The case was essentially was essentially a “he said”—she “suspected” contest, and there was some forensic evidence—the cocaine in her urine—to corroborate her suspicions.  But the value of the forensic evidence depended entirely on whether she was telling truth about not having used cocaine prior to the alleged rape.  If she had recently used cocaine, then the urine test would not establish that he had given her the drug, but would be equally consistent with her having ingested the drug on her own in the days or weeks prior to the sexual encounter.  

We came up with the idea of testing her hair for traces of cocaine residue.  In my research and teaching, I had come across scientific information that established that the past use of cocaine could be determined by a test of the hair.  Indeed, the location of the cocaine residue in the hair could even establish the approximate timeframe of the cocaine use, if the hair was long enough, since hair grows at a fairly consistent rate.  She had long hair.

Accordingly, we subpoenaed hair samples from the alleged victim.  We learned that immediately upon receiving the subpoena, she rushed to the nearest barber shop—an establishment that cuts men’s hair—and had a very short haircut, leaving an insufficient amount of hair to be tested.  We tried unsuccessfully to find the barbershop and collect her hair.  But her efforts to destroy the evidence upon receiving the subpoena certainly suggested that she had not been truthful about her cocaine use.

In the end, the jury, after hearing all of the evidence, concluded that there was a reasonable doubt about whether the accountant had placed cocaine in her drink, or whether she alone was responsible for her decision to drink alcohol and then engage in relatively consensual sex with her boss.  

The acquittal certainly did not signify approval of the accountant’s behavior.  It was a correct application of the principle that proof of rape, like proof of every other serious crime, must be beyond a reasonable doubt, and that all doubts must be resolved even in favor of all defendants, regardless of what the jurors might think of their sexual morality. 



Too Young To Consent?

Under the law, can a rape occur even when both parties consent and even when the alleged victim is eager to engage in the sexual activity?  The answer to this question is also yes. This is so because every state has a statutory age of consent, and anyone below that age (girl or boy) is irrefutably deemed incapable of consenting even if she initiated the encounter and was sexually experienced. The age of consent varies from state to state and from country to country. In some places, it is as low as fourteen; in other places, it is as high as eighteen.  In some states, the age of the alleged rapist is also relevant.  Under these “Romeo and Juliet” statutes, consensual sex between people of approximately the same age is not rape even if one of them is below the age of consent.

May contemporary commentators believe that the age of consent statutes in states that place it as high as 17 or 18 are unrealistic, since a large percentage of teenagers become sexually active at lower ages.  Setting the age of consent higher than the norm accords prosecutors enormous discretion to pick and choose whom to prosecute among the many violators.  I worked on such a case recently

My client in this case lived in a state in which the age of consent was seventeen, had a home in a country where the age of consent was fourteen, and also had a home in a state where the age of consent was eighteen. Unfortunately for him the sexual encounter for which he was charged took place in the state where the age of consent was 18.  It was also a state in which the age when most teenagers became sexually active was far lower than 18.

My client was a wealthy businessman and philanthropist, who was single, middle-aged, and had many young girlfriends. He loved receiving massages, and his preference was to be massaged by young women in their late teen years. (He was not a pedophile, and had absolutely no interest in prepubescent girls).

My client had a large home with a swimming pool at which he liked to entertain willing young women who often sunbathed and swam topless. No crime there. His assistant arranged for the young women who would come and give him massages, which sometimes ended happily. The young women were paid for the services they rendered, which sometimes included some touching, but nothing beyond that. The assistant was instructed to ask for ID for each of the masseuses and to be certain they were all over eighteen. Because he paid handsomely for services – $200 for half an hour – young women were eager to provide them, and a few of them presented false IDs to conceal the fact that they were not quite 18. Some of them already worked as masseuses in what were euphemistically called “jack shacks,” where they were paid to provide happy endings to massage customers. Others worked as strippers. And several were prostitutes who paid for their drug habits by selling their bodies for sex.  None was sexually inexperienced.  

One day, the wife of a policeman overheard their seventeen-year-old daughter talking on the phone about giving a massage to a middle-aged man. The policeman reported the incident to his chief, who then began a full-scale investigation.

I was called by the man, whom I had known for several years, to help represent him in the matter. I conducted extensive research on the policy of the local prosecutor with regard to such cases, and learned that no one had ever gone to prison under similar circumstances. I then met with the prosecutor on several occasions and we worked out a plea bargain, in which my client would plead guilty to contributing to the delinquency of a minor but would get no jail time. We thought the case was over, until we learned that the local police were not satisfied with this resolution and were bringing the matter to the attention of the United States Attorney’s Office, thus turning it into a federal case.

The federal statutes governing sexual contact with underage girls are draconian.  Had my client been convicted under them, he could have received a sentence of 25 years for each separate massage.  This could have resulted in life imprisonment.  We probably could have won the case had we decided to litigate, because there was no interstate aspect to the alleged crimes:  all the girls were local and everything happened within that state.  Moreover, the alleged “victims” were anything but victims—they sought out my client and repeatedly called his house asking for more business.  But the risks were simply too high, in light of the possible sentence if he were to be convicted.  

For that reason, we entered into an unusual plea bargain, under which the federal government would not prosecute him if he agreed to plead guilty to a state crime that resulted in 18 months imprisonment and the need to register as a sex offender (which he really isn’t).  He served only a few months in jail and the rest under house arrest.  A group that brings lawsuits on behalf of the victims of sex crimes then sued the federal government for being “too lenient” and tried to get the plea bargain rescinded.  I doubt they will succeed.  




Rashomon Rape Cases

In the great Japanese film, Rashomon, a horrible crime is presented through the very different perspectives of several participants.  In some rape cases, a similar Rashomon perspective is sometimes at work.  In the Mike Tyson case, for example, it is possible (though unlikely in my view) that Desiree Washington did not intend to consent to sex but that Mike Tyson reasonably believed—based on her “groupie-like”  actions and statements—that she did.  What should the law be in such situations?  

Under American law, if a person makes a reasonable mistake of fact which leads to the commission of a crime, he is generally not guilty. For example, if a person walking down the street sees another person coming at him with a gun about to pull the trigger, and he shoots first and kills his assailant, he is not guilty, even if the “assailant” turns out to be an actor in a movie holding a gun that shot blanks.  Since the defendant reasonably, though mistakenly believed, that his life was in danger, his reasonable mistake of fact constituted a complete defense to a murder charge. A crime requires both a criminal act and a criminal intent, and if the defendant reasonably believes that facts, as he saw them, made what he was doing permissible under the law, then he does not have a guilty mind. A mistake about law, on the other hand, is not a defense, since everybody is presumed to know the law.  (This latter point led an English wag to comment that “all Englishmen are presumed to know the law, except Her Majesty’s judges, who have a court of appeals above them to set them right.”)

In recent years, however, there has been a movement to deny defendants in rape cases the right to raise the defense of reasonable mistake of fact, especially when it comes to whether the woman consented. No means no, and no man should be allowed to believe that no might mean yes or even maybe. (There is the anachronistic joke about the difference between a diplomat and a lady: When the diplomat means maybe, he says yes. When he means no, he says maybe. A diplomat never says no, for to say no would mean he was not a diplomat. When a lady says no, she means maybe. When she says maybe, she means yes. A lady never says yes, for to say yes would mean she was not a lady.)

The law is correct in demanding that a man understand no to mean no. He may subjectively believe that no means maybe when it comes to him, but such a belief is unreasonable as a matter of law. In some situations, however, the woman does not say no. Nor does she say yes. Nor does she even say maybe.   (There was a song made famous by Ella Fitzgerald entitled “She didn’t say yes.  She didn’t say no.”  The lyrics continued:  “She didn’t say stay, she didn’t say go…clearly she took one sly little look and something awoke and smiled inside.  Her heart began beating wild inside.  So what did she do?  I leave it to you.  She did what you’d do too…she didn’t say yes.  She didn’t say no.  She wanted to stay but knew she should go.  She wasn’t so sure that he’d be good.  She wasn’t even sure that she’d be good…above her, sweet love was beckoning and yet she knew there’d be a reckoning….”)  In real life, women often convey their intentions via ambiguous verbal and physical cues. In such situations, it is morally wrong, in my view, for a man to assume consent, but it may also be legally wrong for the law to punish such immoral behavior as rape. There are clearly gray areas in which the man ought to resolve doubts in favor of not acting and where the law ought to resolve doubts in favor of not convicting.  

I have represented several clients who fit this situation.  One such case was a highly publicized prosecution of three prominent doctors and a nurse at one of Boston’s leading hospitals.  

One of the doctors had a party at his house for some of the hospital staff.  During the party, the nurse danced with several of the doctors and two of them “fooled around” with her in the bathroom.  As the party was ending, the three doctors invited the nurse to join them for a drive to Rockport where one of the doctors had a vacation home.  She went along with them because in her words, she thought they were just “horsing around.”  

When they arrived at the Rockport home, two of the doctors smoked marijuana and all of three of them began to disrobe.  She said she protested and told them to stop when the three of them began to undress her.  Each of the defendants then had sex with the nurse in the bedroom.  She testified that she felt physically numbed and could not resist.  

Sometime later, they drove back to Boston and stopped to view the beach, to have breakfast and fill the car up with gasoline.  One of the doctors gave her his card and said he would be interested in hooking up with her again.  The defendants each testified that the sexual intercourse was entirely consensual, that it was she who took her dress off and that she appeared at all times to be a willing participant.  

The issue in the case was what the jury should do if they believe both the nurse and the doctors—that is, if they thought that the nurse did not want to have sex with the three doctors, but if the doctors believed that she was a willing participant.  

The jury convicted the defendants and the judge sentenced them to six months imprisonment obviously suggesting that he had some doubts about the sufficiency of the case.  I was asked to consult on the appeal.  I accepted the assignment because I wanted to preserve the mistake of fact defense in the face of efforts to abolish it in rape cases.  

Unfortunately for these defendants their trial lawyers had not appropriately raised the issue of reasonable mistake of fact.  They asked for an instruction that might have invited the jury to acquit even if the mistake had been unreasonable—that is, even if the doctors believed that “no” meant “yes.”  The appellate court ruled, therefore, “We need not reach the issue whether a reasonable and honest mistake to the fact of consent would be a defense, for even if we assume it to be so, the defendants did not request a jury instruction based on a reasonable mistake of fact.  We are aware of no American court of last resort that recognizes mistake of fact, without consideration of its reasonableness.”

In a subsequent case, in which I was not involved, a Massachusetts Appellate Court ruled that even a reasonable mistake of fact is not a defense when it comes to consent or lack of consent in the context of a rape prosecution.  

This decision, disallowing even the most reasonable mistakes of fact in rape cases, opens up the possibility of some very unjust results.  To illustrate this, let’s go back to the filming of the movie, Deep Throat, discussed in an earlier chapter.  

Harry Reems had sex on camera with Linda Lovelace. Anyone watching the film 81  can see that she is consenting, both verbally and by her unambiguous actions. But it now turns out, at least according to a book she wrote, that her apparent consent wasn’t real, that she was compelled to pretend she was consenting by her husband’s threats to kill her unless she went forward with her starring role in the movie Deep Throat. Under the extreme view expressed by some radical feminists and accepted by the Massachusetts Appellate Court, Reems could be guilty of rape even though his mistake of fact about her consent was entirely reasonable.


Or consider the following case I discuss in class.  Among the group of American citizens in California who come from the Hmong tribes in the mountains of Cambodia, there is a traditional wedding ceremony for arranged marriages. The groom is supposed to go to the home of the bride, where the father of the bride greets him at the door. The groom pushes the father aside, finds the bride, and carries her, screaming and yelling, from her parents’ abode. He is supposed to act like a young warrior, and she like a young virgin who wants to retain her status. It’s all playacting, and part of the traditional wedding ceremony. In the case I teach, the young woman didn’t actually want to go through with the marriage, and her resistance was not playacting; it was real. But there is no reason that the groom would know this, so he took the bride home to his house, and over her “resistance”, which he believed was feigned, he consummated the arranged marriage. She then ran away and reported the rape to the police, who arrested the young man. I asked my students how a case like this should be decided.

The class is generally divided, some argue that no always means no, even in the context of a traditional marriage ritual in which no is supposed to mean yes.  Others argue that it would be unfair to impose our values on a minority that has its own culture and traditions.

Another case that raised similar issues arose in the context of a college friendship that turned ugly.




The 99-pound rapist

The great violinist Itzhak Perlman called me one day and asked if I would look into a disturbing case involving a young violinist he knew who attended college in the Boston area. The young violinist—who was 5 feet tall and weighed 99 pounds, and whose only exercise was lifting a bow—had been accused by a 5 foot 4, 140-pound lacrosse player of raping her. Itzhak did not believe that the allegation could be true. The circumstances of the case certainly didn’t lend credence to the charge.

The young man and woman had been close platonic friends.  She had a steady boyfriend back home, with whom she regularly had sex.  One night she invited the violinist to her dorm room where they had sexual relations. Several weeks later, she invited him to spend the weekend with her family, where he said they again had sexual relations.  But soon thereafter she began to experience psychological problems and someone at the college left an anonymous message with her parents that she may have been the victim of an unwelcome sexual encounter.  After being confronted by her father, who was adamantly opposed to any premarital sex, she told him that the violinist had raped her in the her dorm room.  She then filed a complaint with the police.  The young man was immediately suspended from college and subsequently indicted for rape.

I referred the case to a small law firm in town that specialized in criminal matters, and the case was assigned by the senior partner to a well-known woman lawyer active in feminist causes. She found the story implausible – so much so that the lawyers decided to waive a jury trial and have the case decided by a judge, whom they believed would be less susceptible to political correctness. They were wrong and they were right. The judge found the young man guilty, but gave him a prison sentence of only 95 days thus suggesting that he didn’t find him that guilty.

I followed the appeal closely, reviewing the briefs and offering suggestions.  The argument was made by the feminist lawyer.  The opposing lawyer was also a feminist.  Although the court found that there was sufficient evidence to sustain the conviction, it considered the evidence quite weak.  This is what it said:  

     “In this case the defense was consent.  The evidence is many ways was contradictory, and, even looking only at the complainant’s testimony, in some respects was inconsistent with allegation of rape.”   

The court then ruled that the defense should have had access to certain treatment records that the defendant generated when she was hospitalized following the alleged rape.  Accordingly it reversed the conviction and remanded the case for a new trial.  In the end the prosecution dropped the case and the defendant went free, but not before his college career was seriously disrupted.  

The court’s decision was roundly criticized by many feminists, on the ground that allowing the defense to have access to the complainant’s psychiatric records would discourage complainants from coming forward.  The court was sensitive to this concern and said the following:

     “Because victims of sexual crimes are likely to suffer a ‘depth and range of emotion and psychological disturbance…not felt by the victims felt by most other crimes’ we remind lawyers and judges that the mere fact that such victims sought counseling may not be used for impeachment purposes.”

Notwithstanding this warning, it seems quite likely that at least some rape victims would decline to press charges if they knew that their treatment records could be rummaged through by defense lawyers eager to discredit them. 

The feminist lawyer, who successfully argued the appeal, had mixed feelings about the results, acknowledging that she “had hurt the cause,” and that her victory for her client was “a step back for women.”  But she understood that her responsibility in this case was to this defendant, rather than to future rape victims who she cared deeply about but who were not her clients.  She did her job, and she did it well.  

This is another example of the “no free lunch” doctrine, in which doubts were resolved in favor of defendants and against the victims of rape.  


Chapter 15: The changing impact of the media on the law

Criminal trials involving life and death, such as the O.J. Simpson case, or rape, such as the Mike Tyson cases, always generate massive media coverage, especially when famous people are in the dock.  Some civil trials, especially those with allegations of sexual misconduct, are also widely covered.  In this chapter, I focus on two such cases—both quasi-criminal in nature, both involving allegations of improper sexual relations—that reflect the changing impact of the media on our legal process.  I also relate my involvement in other high profile cases in which celebrities and public figures have become the focus of media attention.  Based on these and other cases, I draw conclusions about the nature of celebrity justice and the impact of the media on high visibility cases.  

In the days before radio and television, trials were covered primarily by the print media.  Newspapers wrote articles about notorious cases.  Pamphlets were issued containing excerpts from the transcripts.  Some lawyers became famous even without the benefit of the electronic media.  Daniel Webster, Abraham Lincoln, William Jennings Bryant, Clarence Darrow were all household names.  So were some of their famous and infamous clients.  

The advent of gavel to gavel television coverage has changed the way in which the public views the law and the way in which the law operates.  It has turned lawyers into celebrities and clients into household names.  Today, everyone has an opinion on the high profile cases of the day, and these opinions have impact not only in the court of public opinion but in the courthouse as well.  No lawyer, especially those who practice criminal or constitutional law, can afford to ignore the impact of this phenomenon on tactics and strategy.  Cases can be won or lost as easily on the courthouse steps as in the courtroom itself.  

I have played a role in the ongoing debate regarding the manner by which trials are covered, most particularly whether they should be televised.  (I think they should and have strongly advocated that view in debates, on television and in articles.)  Several of my cases were among the first and most widely televised trials, in our history.  In others, I have served as a real-time commentator for trials covered by network television and Court TV.  

Throughout my career, I have tried to use the media to the advantage of my clients, and the media has tried to use me and my clients in an effort to sell soap and other commercial products.  Sometimes the relationship is symbiotic.  More often it is antagonistic.  It is rarely neutral.  This is especially the case involving the many celebrities I have represented.  

Although the vast majority of my clients over the years have been obscure and often penurious—about half of my cases have been without any fee—the media often portrays me as a “celebrity” or “high profile” lawyer.  I don’t like those characterizations of my life-work, but there is some truth in it, because many of my cases have been extensively covered by the media.  That is in the nature of criminal or constitutional lawyer, since cases involving my specialties tend to raise issues of public interest.  It is also true that because I have become relatively well known as a result of these cases, I receive calls from famous people seeking my advice or my representation.  I don’t like the term “celebrity lawyer” because it suggests that I select my cases on the basis of the status of the client, rather than the nature of the case or cause.  Nothing could be further from the truth.  I turn down most celebrity requests, and cases involving celebrity clients form a tiny fraction of my practice over the years, but the few that I do take garner far more publicity than do the many cases involving unknown clients.

Is there anything special about famous clients—celebrities?  Should “high profile” cases be handled differently from less visible controversies?  These are questions I have pondered during my career as a lawyer.  

Most people see celebrities at a distance – on the screen, stage, television, athletic field, or auditorium.  They see them at their best – acting, posing, playing, speaking, being interviewed or participating in charitable causes.  

I see celebrities close up and at their worst.  They come to me when they are in trouble, often deep trouble.   Their celebrity is no longer a shield protecting them from the ordinary tribulations that befall most people on a daily basis.  When they come to me, their celebrity has been turned into a sword being wielded against them.  Celebrities generally live by publicity.  When they come to me, they are dying from the publicity and want privacy and anonymity.  But they can’t have it, because the very celebrity that brought them fame and fortune now threatens to magnify their problems.

I have represented, advised and consulted with dozens of celebrities, ranging from Presidents and Prime Ministers to world famous athletes, actors, writers and financiers.  Most have gotten into trouble for one overarching reason: because they were willing to risk what they have limited amounts of in order to obtain more of what they have unlimited amounts of.

This may sound self-defeating, if not bizarre—so let me explain.  Celebrities share several common characteristics.  They have more of something than ordinary people have:  great athletes have extraordinary physical skills; good actors have unusual thespian skills; successful politicians have a special charisma; financiers have money and the ability to make more.  These special characteristics generally give celebrities access to certain desiderata of life:  lots of money and the things money and fame buy, and the benefits that come with these commodities, such as access to numerous sexual partners – if they choose to use their celebrity to obtain such access (and excess!)

Many of my celebrity clients, who have unlimited amounts of money or access to sex, have sacrificed what they have limited amounts of – freedom, career, time with loved ones, health – in order to obtain even more money or sex.  Let me provide a few examples of such bizarre risk-taking in cases that are a matter of public record.  (I could provide many more examples if I were free – which I am not – to disclose confidential information given to me by celebrity clients) 82 .

Leona Hemsley, the celebrity hotel “queen”, had more than a billion dollars in the bank when, according to the government, she whited out the words “stereo system” on a bill for services and changed them to “security system” in order to have her accountant deduct its cost from her taxes.  She also, according to the government, evaded sales taxes on expensive jewelry in New York (which has a sales tax) by having the jeweler send empty boxes to Florida (which has no sales tax).  As a result, she may have saved several thousand dollars, but she spent more than a year in prison, when she had only a few years left to live and even less time to spend with her dying husband.  By any rational calculus, this is crazy behavior.

Mike Tyson, as the world’s greatest boxer, had a limited career ahead of him but virtually unlimited access to sex.  As with many famous athletes, women were falling all over him, sending him “audition” tapes, waiting for him wherever he appeared and begging him to have sex with him.  Yet, he agreed to be alone in a hotel room with a young woman he had just met and to risk being falsely accused of rape – which, in my view, he was – in order to get even more sex.  The result was that he was sentenced to several years in prison near the end of his short career, and lost almost everything he had worked so hard to acquire.  Even he later acknowledged to me that he was a “schmuck” for risking so much for so little.  

In both of these cases, celebrities risked what they had limited amounts of – in Helmsley’s situation the few remaining years of her life and her time with her husband; in Tyson’s situation the few remaining years of his career – in order to obtain more of what they had unlimited amounts of:  money and sex.  Of course, neither one expected to be convicted for what they did, but they both engaged in behavior that carried the risk of being deprived of what they had only limited amounts of.  No rationally calculating person, weighing the costs and benefits of taking such risky actions, would do so.  But these celebrities – and many others who have consulted me – have done just that.

Some of my celebrity clients have also gotten into trouble because they need, or feel entitled to, immediate gratification without sufficiently considering the longer term implications of their conduct, not only to themselves and their careers but to their loved ones, friend and associates.  They believe that when the future finally arrives, there will be new quick fixes.   And often they are right.  Someone generally manages to clean up the mess they left behind.  It requires a combination of unlikely factors and some bad luck to produce disaster, since most successful people are good at making problems go away.  But even celebrities are subject to the law of probabilities and eventually – if they persist in their reckless behavior – the statistics will likely catch up with them.  

Why do so many celebrities act so recklessly?  Is there something special about being a celebrity that makes one feel invulnerable to ordinary risks?  Are they so accustomed to “getting away with it” that they weigh costs and benefits differently from ordinary people?  
Is there a sense of entitlement?  Are there expectations that the rules don’t apply to them?  Do they feel guilty about their “undeserved” success and want to be caught?  Do they surround themselves with groupies who encourage bad behavior and refuse to be truthful with them about the risks?  Are temptations placed so readily before them that they become difficult to resist?  

One answer may well be that some of them have been doing it all their lives, starting well before they were rich and famous.  People often have a hard time changing old habits.  I know that no matter how much money I now have, I cannot throw away a tea bag after using it only once.  It drives my family crazy to see soggy tea bags in a cup waiting to be reused, but I simply can’t “waste” a good tea bag that has at least one more good cup in it.  I’m not suggesting that reusing tea bags is in any way analogous cheating on one’s taxes or committing other financial or sexual crimes, but I am suggesting that people who have earned their money or fame by illegally cutting corners will sometimes continue to do so, even though there is no longer a financial or other rational need to do so.  Old habits die hard, but they can also kill or at least wound those who can’t break the illegal ones.  This is not in any way to justify such continuing misconduct.  Indeed, quite the opposite, it is to condemn it—because celebrities have few excuses for their misconduct—while at the same time trying to explain why it persists among some celebrities.  


I have thought a great deal about what motivates famous and powerful people to act so self-destructively.  The celebrities who I represented and advised have faced a wide array of problems, ranging from criminal charges, to loss of careers, to public humiliation, to custody fights, to defamations and to physical threats.  Some of the most fascinating stories I can never tell because I learned them in confidence and helped resolve them without their ever becoming public.  Most have become matters of public record, and I am free to write about those and to offer my insights about the famous people I have advised over the years and the problems they faced.  

The question I am asked most frequently is:  does being famous help a celebrity who gets in trouble with the law?  Or does it hurt?  My answer is “yes.”  Sometimes it helps.  Sometimes it hurts.  Always it matters.  One of the most important jobs a lawyer who represents famous people has is to figure out how to turn his or her celebrity into an advantage rather than a disadvantage, or at the very least to neutralize it (which is a near impossibility in our celebrity-driven world.)  I recall Claus Von Bulow once telling me that in England it’s all about “class and breeding,” while in America it’s all about “fame and celebrity.”  Before he became famous for being accused of trying to kill his wife, Von Bulow couldn’t get a good table at certain posh restaurants despite his wealth and social status, but when his name and face began to appear in every newspaper, he got the best table in every restaurant. 83   

The most frequent misconception about celebrities is that they must be “so fascinating.”  The opposite is often the case.  Most of my famous clients, with some important exceptions, have been uninteresting.  Some have been outright boring.  We tend to confuse their public persona and surroundings, which fascinate us, with their private personalities, which are often banal, mundane and self-centered.  Many of them have no ideas, no insights and little to say about matters outside the narrow spheres of their professional lives.  Yet we listen to their often uninformed opinion on important issues of the day affecting the world, just because they have a handsome face, strong muscles or other talents or attributes that are irrelevant to their presumed credibility on matters about which they are opining.  Celebrities may seem fascinating from a distance, but reality, viewed close up, it is often very different.  

Their cases and controversies may be fascinating, in part because of who they are, in part because of what they are accused of doing, and in part because the public obsesses over celebrity.

The two cases on which I will now discuss received enormous media coverage.  Both, not surprisingly, involve sex.  Both involve world famous people who are accused of having inappropriate sexual contact with inappropriate young women.  Unlike most celebrities, both of these were fascinating people.

The paradigm of a famous person being tried under the Klieg lights of worldwide media coverage was, of course, the impeachment of President William Jefferson Clinton, in which I played several roles:  witness, advocate, television commentator, book author and friend.  



President Bill Clinton

I first met President and Mrs. Clinton, both of whom who are indeed fascinating, on Rosh Hashanah in 1993.  We shared many mutual friends and teachers from Yale Law School, but we had never actually met before I invited the President and First Lady, who were vacationing on Martha’s Vineyard, to join my family at the M.V. synagogue for Rosh Hashanah services.  When I learned that the Clintons were living near us on the Vineyard, I had the following letter hand delivered to the President by a mutual friend:   

     Dear Mr. President:

     It is my great honor to invite you on behalf of the Martha’s Vineyard Hebrew Center (the only Jewish house of prayer on the Island) to attend one of our Rosh Hashanah (Jewish New Year) services.  It is a part of the Jewish tradition for the congregation to bless the President of the United States and the great nation that has given us the freedom to practice our religion without prejudice or discrimination.  Our congregation would love to extend that blessing personally to you and to invite you to respond with your own New Year’s greeting or to accept our good wishes silently.  

     In years gone by, Jews in different countries lived in fear that government officials would enter their religious sanctuaries.  Such visits were often prelude to crusades, inquisitions, pogrom, and—eventually—the Holocaust.  The lyrics of the Broadway hit “Fiddler on the Roof” include the following mock prayer for the Russian Czar.  “May the good Lord bless and keep the Czar—far away from us.” In contemporary America, the attitude of the Jewish community is quite different: We welcome our president with open arms.  

     The services will be held in the Whaling Church in Edgartown—a wonderful building used for year as a place of Christian prayer for whaling captains and their crews.  The use of this church for Jewish services symbolizes the ecumenical nature of our wonderful Island…We hope you and your family and staff members (Jewish or non-Jewish) can join us as we pray for a year of peace, health and productivity.


The president immediately accepted, thus becoming, we are told by the eminent Jewish historian Jacob Marcus, the first sitting American president ever to attend a Jewish High Holiday service.  I sat next to him during the service and shared a mahzor (Holiday prayer book) with him for most of the davening, pointing out the prayers and whispering explanations of such concepts as the “talit” (prayer shawl) and “mitzvot” (good deeds). We used a prayer book in which the Hebrew was transliterated for the parts that are chanted, and the president and Mrs. Clinton sang along in Hebrew.  Then the president spoke briefly from the lectern, declaring his role in the Mideast peace process “one of the most rewarding things I’ve done,” and wishing the Jewish people a “Shana Tova.”  He wore a white Kipah my wife and I gave him from our wedding.  He and Hillary signed it and gave it back after the service.  We have kept it as a treasured reminder of that historic night.

As I watched the president, “davening” in his yamulka, I thought of Jules Farber’s quip: “The time is at hand when the wearing of prayer shawl and skullcap will not bar a man from the White House—unless, of course, the man is Jewish!”

Following the service, the Clintons invited us to join them for dinner at the Savoir Faire Restaurant in Edgartown.  We had already eaten before the service, but we readily accepted.  My wife, Carolyn, my son Elon and I dined with the Clintons.  We were later joined for dessert by Vernon Jordan and his wife, Anne.

The dinner was relaxed.  The President discussed movies with my producer son, while my wife and I discussed health care policy with Hillary.  The President told a joke that wasn’t particularly funny.  My family has very high standards of humor, so we didn’t laugh.  The president, apparently thinking we didn’t hear or get the punch line, repeated it.  This time, we laughed—a bit.  When the dessert was brought, the waiter put a large chocolate bombe in front of the president.  My son thought it was large enough to be shared by the table and so he raised his spoon to take a piece.  The president stared him down, saying with his eyes, “that’s all mine!”  Elon dropped the spoon and the president consumed the entire bombe.  (Today, Bill Clinton is a vegan—no more bombes for him!)  

At the end of the evening, over dinner, the president lifted a glass of champagne to toast the Jewish New Year.  As I touched my glass to his, I gave the traditional Jewish toast, “L’Chaim”—to life.  President Clinton responded, “This has been a really great evening.”  


A few days later, I wrote the following about President Clinton’s historic visit to the Martha’s Vineyard synagogue:  

     Skeptical as most American Jews are about any lowering of the wall of separation between Church and State, we still want the President of the United States to be the President of all the people.  We are the most diverse, heterogeneous, multiethnic-nation in history, in which more than 150 religious groups practice a wide array of rituals and express an even wider array of beliefs.  Our president, unlike the Queen of England, is not the Defender of the Faith.  He is the defender of the Constitution, which prohibits the establishment of religion, guarantees its free exercise and forbids any religious test for office.

     President Clinton frequently attends church services of his own Baptist denomination, as well as of other Christian denominations.  He lights the national Christmas tree and this year also lit Hanukkah candles in the White House.

I then contrasted President Clinton’s warm actions with the response I received from former President Gorbachev several years earlier.  I had been invited to speak at an international conference in the Kremlin, during the week of the Jewish New Year.  I invited the then-president to join the Jewish invitees at the conference to services in Moscow.  He refused, suggesting to me that an appearance at a synagogue would not help his prospects for holding on to the office he would soon be losing.

I concluded my article with the following words:

     President Clinton’s visit was entirely in keeping with President George Washington’s letter to the Jews of Newport, Rhode Island, in which he wrote that mere “toleration” is not good enough in America.  Here, Jews as well as others, must be treated as equals.  The attendance of our president and first lady at a Jewish service made many Jews feel like first-class citizens, rather than tolerated guests.

I sent the President a copy of my article.  He sent back a handwritten note expressing his appreciation for being invited to the services and for the article, and included a signed photograph of the dinner. 

During the subsequent summers, the Clintons vacationed in Martha’s Vineyard and lived right near us.  We frequently dined, partied and even square danced with them and became their friends.  We were invited to the White House on several occasions and the President sought my advice from time to time.  

Sometimes, I offered unsolicited advice, such as when I repeatedly urged him to commute the life sentence of Jonathan Pollard to time served.  I pestered him so much about Pollard that he finally told me he didn’t want to hear anything more about it.  I replied, “You can choose not to listen, but I’m not going to stay quiet.”  In the end, he wanted to commute the sentence, but he got push-back not only from the intelligence community but also from several Jewish senators.  He told me that if I can’t even get the Jewish senators to support commutation, how could he justify it to the intelligence community, which was adamantly opposed to it.  

Another issue on which I initially offered my unsolicited advice involved the Monica Lewinsky matter.  As I watched the Lewinsky drama unfold, I saw a familiar pattern that had had gotten many other celebrities into trouble: opting for short term gratification without considering the longer term consequences.

At every decision point, the President and his advisors opted for a political tactic that helped them get good headlines and poll results in the short term, rather than focusing on the longer term strategy that might have prevented an entirely lawful sexual indiscretion from turning into a possible crime.


The first – and most important – point was the President’s foolhardy decision to engage in a surreptitious sexual relationship with a White House intern at a time when he knew he was under intense investigation by  Kenneth Starr, a somewhat puritanical prosecutor and was subject to a lawsuit for sexual harassment by a vindictive woman who was represented by politically motivated lawyers.  

If there was indeed a “right wing conspiracy” out there waiting to “get” the President, as Hillary Clinton had alleged in a television interview, it is difficult to imagine any action more reckless than oval office sex with a young blabbermouth whose goal was probably as much to brag about her conquest of the President as to engage in an intimate relationship. She really did want oral sex: she wanted to talk about it.  And she did – to more than a dozen people.  The President achieved immediate gratification while risking long term consequences to his marriage, his daughter, his presidency and above all the nation’s stability. 

At the time he began his sexual encounter with Lewinsky, Clinton knew that he might possibly have to testify under oath about his sex life.  He knew that two sets of enemies had the powerful legal weapon of subpoena power aimed directly at his presidency.  That is probably why he was reluctant to engage in sexual intercourse.  He wanted sex with deniability.  What he got was unsatisfying sex with unconvincing deniability. Or, as Maureen Dowd put it:

     “Mr. Clinton’s habit, with language and behavior, has been to try to incorporate his alibi into his sin.  The result is more twisted than titillating.” 84 

This was surely not the first time Bill Clinton put his future at risk for immediate sexual gratification.  But in every other instance he was able to avoid the long term consequences.  I am certain that he believed that this pattern of short term risk-taking and subsequent avoidance of long term consequences would be repeated.  I doubt he believed, at the moment that he first allowed Lewinsky to touch him in a sexual manner, that this action would eventually lead to possible removal from office and damage to his family life.  He surely would not have consciously taken such a knowing risk.  But when people have succeeded so often in the past in achieving both immediate gratification and long term avoidance of consequences, they miscalculate the odds and act as if they can have their cake and eat it too.  

The history of many of my own celebrity clients is largely a history of defendants who for years – sometimes decades – have risked their careers, family lives, fortunes and freedom for some form of immediate gratification.  Finally when they were caught, everyone asked the same question: “How could they have risked so much for so little?”  What that question fails to understand is that the “little” thing for which they were eventually caught was usually only the tip of a very large iceberg of sin or crime which they had gotten away with for years.  In their minds therefore, they were risking very little (the extreme unlikelihood that this time they would get caught) for a great deal (a lifetime of small, short  term gratifications, which add up to something for which it is worth taking small risks.)

In retrospect, we consider such actions reckless because we are running the video backwards: we know he was caught.  But at the time Clinton made the decision, he probably did not regard it as any more reckless than the many similar decisions he had previously made, without destroying his career and his family.  He had probably played the same sexual-verbal game before: limiting his sexual contact so that he could plausibly deny that he engaged in “sexual relationships” outside of his marriage, 85  but he never before had to testify under oath about these relationships.  What he failed to comprehend was how much the risks had increased as the result of the legal proceedings then in place – the Jones lawsuit and the Kenneth Starr investigation.  These legal proceedings escalated the stakes by turning a private sexual encounter into the subject of sworn testimony and investigation by an independent counsel.  

It is unlikely that Bill Clinton confided the truth of his relationship with Monica Lewinsky to any of his lawyers.  He couldn’t, because his principle lawyer was representing both him and his wife.  Thus if he didn’t want his wife to find out about Lewinsky, he could not tell his lawyer about her.   It is likely that his lawyers suspected the possibility that there was some truth to the rumors that something untoward had occurred between Bill Clinton and Monica Lewinsky.  After all, Clinton did tell his lawyers – and did testify -- that he engaged in adulterous sex with Gennifer Flowers, despite his previous public denial.  Moreover his reputation was well known.  Any lawyer worth his salt should have based decisions regarding the president’s testimony on the assumption that he may well have engaged in a sexual relationship with Monica Lewinsky. A good lawyer should also have assumed that a twenty two year old intern who had engaged in a sexual relationship with the President would talk about it.

His lawyer in the Paula Jones case, Robert Bennett, was on notice that the president was going to be asked about Lewinsky.  If he had conducted any kind of investigation to determine the nature of their relationship he would surely have uncovered the widespread concern around the White House over Monica Lewinsky’s unusual access to the President. He would also have learned of the dozens of logged meetings between the President and a young government employee. This should have put Bennett on notice to probe more deeply.  At the very least he should have interviewed Lewinsky, confronted her with the concerns, and asked her direct questions. He should also have interviewed those White House officials who had expressed concern. Yet on the basis of little more than an assurance from the President, he allowed an affidavit to be submitted by Lewinsky denying any sexual relationship.  Putting aside the ethical issues arising from relying on an affidavit that he was on notice might well be false, and having his client testify to facts that he had to suspect might be false, it is difficult to understand the tactical considerations that led the president’s lawyers to allow him to testify about his sex life.

It is not as if Bennett had not been cautioned about the risks of having the President testify about his sex life at the Jones deposition. On May 27, 1997, six months before President Clinton testified at a deposition in the Paula Jones lawsuit, I was a guest expert on “The Geraldo Rivera Show.”  I made the following observation and offered the following advice:

          This case never should have gotten this far.  It should have been settled early when he could have settled it easily.  He must settle the case. . . 

          Remember, depositions are very broad in latitude.  He could be asked questions about adultery.  He could be asked questions about his prior sexual life.  There are no relevancy objections that are generally sustained to depositions. . . . 

          I think the President could win if it actually went to trial, but it won’t go to trial.  What I would do if I were his lawyer is to say, “Look, the dignity of the office precludes the [P]resident from answering any of these questions.  We realize that as a result of not answering these questions, we will reluctantly, without admitting anything, have to be sanctioned by having the verdict directed against us on the merits.  We accept that because we can’t answer the questions and preserve the dignity.  And now let’s move on to the damages, where the focus is not on the [P]resident but on Paula Jones.”  And in that way, he can, in effect, settle the case, even if the other side doesn’t settle because the damages will be very low, there won’t be an apology.  There’ll be a judgment against him, but the judgment will be explained on the basis of the dignity of the presidency.  So if the settlement talks fail, that’s what I would recommend that his lawyers think about. . . .

          And the [P]resident has to start asking himself:  Is he well advised here? 

The President had three options, but he was aware of only two of them.  He knew that he could litigate and try to win – as he ended up doing.  He also knew that he could try to settle the case, which would have avoided the necessity of testifying at the deposition or trial.  A settlement requires both sides to agree.  In the Jones case, the president reportedly offered to pay Jones $700,000, in order to settle the case.  Jones insisted on an apology 86  and the settlement talks eventually broke down.

The third option, of which the president was unaware, was to default the Jones case.  Every litigant in a civil case has the right to default – which means, essentially, to settle the case unilaterally by simply refusing to contest the allegations in the complaint.  Consider, for example, the following hypothetical case: a fired employee of a high tech business sues for $10,000 in back pay.  The business realizes that in order to defend its actions, it would have to reveal commercial secrets valued at $1,000,000 and take the time of executives which it estimates at being worth $200,000.  It offers to settle the case for the $10,000 that the employee is demanding, but the angry employee prefers a trial at which he will be publicly vindicated.  The company has the right simply to default, have the judgment entered against it, and have the court order it to the pay the damages sought by the employee.  No stigma is attached to defaulting a case.  It does not even necessarily entail an admission of liability.  It represents a  practical assessment of the costs and benefits of litigating and not litigating – just as a settlement does.

Robert Bennett never told President Clinton that he could have defaulted and paid Jones without making any apology.  Perhaps the Lewinsky story would have leaked, but the President would not have had to dignify a rumor with a response.  It was the entirely avoidable decision to have him testify under oath – not once, but twice – that turned a sex rumor into a possibly impeachable offense.

How do I know that Robert Bennett never told President Clinton of the default option?  Because both men personally told me.  Here is the story.

On January 17, 1997, President Clinton was deposed in the Paula Jones lawsuit and was asked questions about his relationship with Monica Lewinsky.  Among the questions were the following:
          “Did you have an extramarital sexual affair with Monica Lewinsky?”

          “If she told someone that she had a sexual affair with you beginning in November of 1995, would that be a lie?”

          “I think I used the term “sexual affair.”  And so the record is completely clear, have you ever had sexual relations with Monica Lewinsky, as that term is defined in Deposition Exhibit 1, as modified by the Court?”

Clinton answered as follows: 

          “I have never had sexual relations with Monica Lewinsky.  I’ve never had an affair with her.”  

His answer was based on the following definition of sexual relations accepted by the judge:

          For the purpose of this deposition, a person engages in “sexual relations” when the person knowingly engages in or causes

                                   1. contact with the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to arouse or gratify the sexual desire of any person;

          “Contact means intentional touching, either directly or through clothing.

Under that definition, oral sex does constitute sexual relations.  After the Jones lawyers completed their questioning, the President’s own lawyer, Robert Bennett, asked the following question:

          “In paragraph eight of her affidavit, [Monica Lewinsky] says this, ‘I have never had a sexual relationship with the president, he did not propose that we have a sexual relationship, he did not offer employment or other benefits in exchange for a sexual relationship, he did not deny me employment or other benefits for reflecting a sexual relationship.’

          Is that a true and accurate statement”

The president responded: “That is absolutely true.”

Shortly thereafter, reports began to appear of tape recorded conversations between Linda Tripp and Monica Lewinsky suggesting that there had been a sexual relationship of some kind between the President and Monica Lewinsky.

On January 23, 1998 I appeared on the MSNBC program “Internight” and criticized Bennett for allowing the President to walk into a perjury trap and a swearing contest.  I recommended that the President “get out in front of this story.  He has to tell the truth, and if the truth is inculpatory he has to tell it.”  I recommended that the president “get a new lawyer, tell him the truth, sit down with your new lawyer … and [have him give you] the straight poop.”  The lawyer has to be someone “who doesn’t care what the president thinks of him.  His obligation is to tell the president what he doesn’t want to hear.”

On January 27, 1998, Robert Bennett called me to complain about what I said on television.  Bennett kept me on the phone for nearly half an hour telling me that I did not understand his “strategy” in the case and accusing me of “Monday morning quarterbacking” his decisions.

I asked Bennett a direct question: “Did you ever advise the President that in addition to the option of settling the Jones case, he could simply default on the liability phase of the case?”

Bennett replied that defaulting would have been “ridiculous” and “a stupid idea” and that he would never recommend it.  

I asked Bennett what kind of an investigation he had conducted of the Lewinsky matter before he allowed the President to be deposed, and he acknowledged that he simply accepted the President’s word, since it was supported by Lewinsky’s affidavit.  I asked him whether he had ever questioned Lewinsky and gave a vague response.  He did say that he was surprised about the questions asked concerning Lewinsky at the deposition.