Is Dershowitz Crafty or Just Out of It?

Alec Baldwin is being tried this week. Interesting stuff. Alan Dershowitz posted an analysis video, and he predicted acquittal. Thing is, he didn’t really do an analysis. It was very disappointing. Dershowitz is held out to be a genius, but he spoke more like a layman than an attorney trying to get at the truth. For the most part, he criticized the law under which Baldwin is being tried.

Proper legal analysis always follows the same simple pattern. Determine the facts, or at least the allegations. Figure out what the applicable law is in order to see if there are legal issues, and write out articulated rules. Apply the rules to the facts. Derive conclusions.

Now you know how to practice law. Just fill in the blanks.

It’s not quite that easy, but that’s how it works.

Dershowitz didn’t follow any logical pattern in his video. He didn’t state the issues. He didn’t get into the facts except in a very superficial way, much as Joy Behar or Don Lemon might. He didn’t determine what sort of standards applied to Baldwin’s actions.

He did what my dad used to call “hip-shooting.” Real lawyering requires the meticulous, plodding construction of arguments. You don’t just show up in court and say you don’t like the law your client is charged with violating. You should be as certain as possible you’re on solid ground with regard to the law and the facts, because if you’re not, the judge or opposing counsel will show you where you screwed up, very quickly. Hip-shooting is negligence, and it leads to malpractice settlements.

Dershowitz does not like the New Mexico manslaughter statute, which is very simple. Basically, it says that if you kill someone else, and you do it without exercising due care, you are guilty of involuntary manslaughter. I could cut and paste it here, but it wouldn’t improve your understanding, because the law is just that simple.

This law is consistent with statutes in many, if not all states, as well as English common law, from which our system derives. There is nothing odd about it.

The trial court is not going to shoot down a statute consistent with hundreds of years of jurisprudence in many, many jurisdictions. That will never happen. Why did Dershowitz bring it up, then? No one goes into court and says, “I think you should acquit me because attempted murder isn’t a real crime,” or, “You should acquit me because conspiracy is protected under the First Amendment.” You try to get acquitted under the law. You don’t put the law on trial. Not a law as solid as this one.

Dershowitz correctly stated that Baldwin was accused of negligence, but then he made the strange assertion that negligence is a civil, not criminal matter. He said the remedy was to sue for monetary damages.

Can it be he is playing the part of defense attorney, not law professor? A defense attorney whose client is clearly guilty under the law will distract instead of sticking to law and facts. Maybe he thinks saying the law is unfair will inflame the hearts of the jurors. Maybe he thinks Baldwin’s attorneys will watch his video, and he is hoping they will repeat what he’s saying.

Doubtful, given that Baldwin must have extremely competent attorneys who have no interest in what law professors say on Youtube.

Maybe he’s not really brilliant and never was. Or perhaps age has dulled his wits, just like Rudy Giuliani’s.

Let’s talk about negligence.

The word “negligence” can apply to more than one concept. It can refer to the tort of negligence. It can also refer to a failure to exercise due care. Such a failure is one element of the tort of negligence.

Elements are things you have to prove in order to make a case. For example, in order to prove a charge of fraud, you have to prove someone made a misrepresentation. You also have to prove some other elements have been established. If one element is missing, no case. Your opposition only has to knock one leg out from under the table.

Depending on who you ask, the tort of negligence has 4 or 5 elements. I was taught it had 4. You have to show that the defendant owed the plaintiff a duty of care. You have to show he breached that duty in a negligent (not necessarily deliberate) manner. You have to show that the plaintiff was harmed. You have to show that the breach was the proximate cause of the harm.

Torts are generally civil matters. You can’t go to prison for losing a civil tort case.

The problem for Dershowitz is that there is such a thing as criminal negligence, as you will see if you Google the phrase “criminal negligence.” Build a bridge and fail to make sure the structure is sound, and you may find out what criminal negligence is.

Every lawyer, and probably most laymen, knows about criminal negligence. So why would Dershowitz suggest there is no such thing? Bizarre. Baldwin was already sued for negligence, and he settled, meaning he knew he would lose. The money has been paid. The civil remedy has been provided. Doesn’t mean he’s off the hook with regard to criminal conviction.

Dershowitz said Baldwin was being prosecuted because someone was harmed. He said no one would have been charged if the bullet had missed.

I don’t know what to make of that. It’s so wrong, it’s impossible to figure out why Dershowitz said it.

First of all, two people were hurt. Not only did Baldwin not miss; he pulled an Oswald, killing one person and injuring another with a single shot. Second, people get charged with criminal negligence all the time, in situations where no one was harmed. For example, you can be convicted of a crime if you store dynamite incorrectly, even if nothing happens.

Try taking a bag containing a gun through airport security. Doesn’t matter if you thought your wife checked the bag when she packed it.

It is true that Baldwin would have been guilty of a lesser offense had he missed, but he could still have been charged. Because Dershowitz did no research whatsoever, he doesn’t know what I know: New Mexico has a statute criminalizing negligent use of a firearm, and it does not require that harm be done in order to be triggered.

Here is some text from the statute: “endangering the safety of another by handling or using a firearm or other deadly weapon in a negligent manner.”

Bad lawyering, Dershowitz. Not just not-brilliant lawyering. Bad. Negligent.

I’ll be the lawyer now. Maybe I’m asking to be smacked down, in my long-retired state, but I’ll go ahead. No one reads this blog anyway.

Baldwin harmed someone, and he harmed her by pointing a loaded gun at her and pulling the trigger. The nonsense about the gun going off by itself is a ridiculous lie, and the damage done by the FBI test won’t mean anything to a jury that isn’t utterly stupid.

He was negligent. One element. He harmed someone, and his negligence was the proximate cause. Three elements. The only way he can get off is to go after the remaining element. He has to show he did not owe the deceased a duty of care. Someone owed her a duty of care, so he’ll have to find a patsy. Put simply, he will have to do what he has done all along: throw his friends under the bus.

Jury selection is a huge part of success at trial. Juries are often stupid, and they are always full of biased jurors. Baldwin paid a screaming fortune to hire at least one person who does nothing but choose jurors. I haven’t read that anywhere, but I know it’s true, because if his lawyers didn’t hire someone like that, they may have committed malpractice. They have huge financial resources, a lot is on the line, and every attorney knows you do whatever you can to get the best jury.

Maybe Baldwin has a jury so dumb or so far in the tank for him he will skate regardless of the law, but if he doesn’t, he will have a tough time convincing them it was okay to point a gun at another person and pull the trigger even if someone else was supposed to make it safe.

There was no need to point the gun at the victim. He could have pointed it in another direction. He could have used a rubber prop gun. He could have used his finger. He was just rehearsing.

There are 4 well-known rules of gun safety, and Baldwin violated every single one. I doubt Dershowitz knows these rules. He’s an elderly Jewish liberal who loves gun control. Does that excuse him? Let me ask you this: would a judge let it slide if Dershowitz handled the case and didn’t know the standard of care? Of course not. He would wonder where Dershowitz got his diploma.

When I say Dershowitz may be playing defense attorney, I’m trying to find a way to make sense of his poor analysis, based on the premise that he really is brilliant. I think I’m giving him too much credit. In his video, he admitted he doesn’t know much about guns. That means he was sloppy. A sharp lawyer playing defense, deliberately muddying the water with irrelevant remarks and outright misstatements, would still prepare.

I practiced with my dad, and he was an absolutely top notch attorney. They don’t get any better. He taught me to dot every i and cross every t. He would never have shown up in court without going over the applicable laws and standards letter by letter. He would never let himself be caught flatfooted because of laziness. I know how a sound legal analysis is done, and Dershowitz didn’t do one.

If there is no evidence I don’t know about, Baldwin doesn’t get a tee-ball jury, and the prosecutor does a halfway-decent job, Baldwin goes down. If there is blockbuster exculpatory evidence I don’t know about, it could be different. If the jury is in the tank, he walks. If the prosecutor blows it like Marcia Clarke blew it, he may walk. That sums up the likely outcomes and explanations.

I’m not predicting a conviction. Juries and judges are too crazy for anyone to predict. I’m just trying to explain the outcome, whatever it is, in advance.

Right now, Baldwin’s team is trying for a dismissal, claiming the prosecution withheld important evidence. The prosecution says it doesn’t matter because the evidence isn’t exculpatory. If it’s exculpatory (which it almost certainly is not), Baldwin could get a mistrial, and my understanding is that mistrials, although not dismissals, generally hurt the prosecution. I don’t see why Baldwin should get a dismissal, since the case can be retried and the evidence will be in the defense’s hands next time.

If there is a mistrial, it falls under the heading of the prosecution not doing a halfway-decent job. Baldwin’s team will probably do a fantastic job, because, sorry, they are not low-paid prosecutors of limited ability. A team of seriously skilled lawyers should catch every opportunity to help Baldwin, and undistinguished state employees can’t be blamed if they can’t keep up.

Failures to provide exculpatory evidence generally become issues on appeal, because when evidence is not timely provided at trial, defense attorneys usually don’t know about it until the fat lady has sung. In Baldwin’s case, the defense claims they found out about it at trial, later than they should have. A person not involved with the trial came forward.

In some cases, defendants have their convictions reversed because of withheld evidence. In others, the evidence isn’t important enough to help them. Baldwin can’t get a reversal because he hasn’t been convicted yet, and I assume he can’t get a dismissal, either, because the problem can be fixed during this trial, or, if a mistrial is declared, at the next trial.

Looks like the defense team is just throwing armloads of pasta at the fridge, roaring with fake indignation and exaggerated claims of irreparable harm, and seeing what sticks.

Whatever happens, I am very disappointed in Dershowitz. He seems to be an unusually fair man, but based on his video, I am starting to doubt his mental horsepower. I have read things written by truly brilliant people, and I have heard them speak, and he is not measuring up.

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Well, what do you know? Baldwin is off the hook, permanently.

His attorneys filed a motion to dismiss, claiming not only that the prosecution had withheld some seemingly-unimportant (to me) rounds of ammunition from the defense, but that they had done it deliberately.

The judge said, “The state’s willful withholding of this information was intentional and deliberate. If this conduct does not rise to the level of bad faith, it certainly comes so near to bad faith as to show signs of scorching prejudice.”

She also said there was no way for the court to make it right.

I have to wonder if that is true, considering the fact that a mistrial could have been declared. The judge could be a Baldwin fan or a former public defender. Maybe the judge is not a fan of the prosecutor.

Whatever. There is no possibility he will be tried again, so this is the end.

I read Baldwin’s motion to dismiss, and the ammunition did not seem to have the potential to help him, but the judge saw it differently. I don’t see how any ammunition could assist him, given that he shot someone needlessly while violating every rule of gun safety. He was trying to use it to prove someone else was to blame for the loaded gun, but he still had several more levels of negligence he could not get past. He didn’t check the gun. He didn’t think about where he pointed it. He pulled the trigger while it was pointed at a person.

I suppose the judge must have felt that the defense should have been allowed to provide every available argument and let the jury sift through the smoke and mirrors.

It may be that the judge, a woman, has no idea what the basic rules of gun safety are. A man might have seen it differently.

I suspect it will turn out this outcome has more to do with the quality of the lawyers than with Baldwin’s guilt, which seems obvious. He was not proven innocent. He simply proved, in the eyes of the judge, that his rights had been violated so substantially there was no hope of a fair trial. If Baldwin’s lawyers had been prosecuting, I doubt they would have let this happen. They wouldn’t have risked keeping anything away from the defense.

I have mixed feelings. I didn’t want to see him go to prison, but I thought he should have shown some sign that the ordeal changed him. A conviction might have helped him learn humility, even if he won on appeal and never served a day. As it is, he may be encouraged to continue in pride and bullying.

Interestingly, Alan Dershowitz didn’t get into the question of Brady violations (withholding exculpatory evidence). I suppose you had to be close to the trial to see this coming.