I was sure they were guilty. I rushed to judgment, like everybody else. They were white Duke lacrosse players. She was a young Black woman. The district attorney charged them with rape. Then one of the mothers got in touch with me. Her son was not a rapist. He was a victim of a bad lawyer playing the media and playing politics. She was right; the players were exculpated by uncontroverted evidence, and the district attorney was disbarred. That was in 2006.
This was before “MeToo,” which has given even more attention to sexual assault, as well it should.
It was before the digital revolution, in which accusations and convictions take place at warp speed, in the same news cycle.
Everything has changed, and yet at its core, nothing has.
Just two weeks ago, two long years after he was sued, a judge in New York threw out all the claims brought against my client, Leon Black, for rape. The claims were brought by a woman with whom he had a consensual relationship for several years. He was lucky; he had tapes of her extorting him for millions of dollars (which he paid); texts from her inviting him over on the night he supposedly raped her; a signed waiver and release from her of any and all claims. But mostly, my client was lucky because it “only” took two years of living through hell — hundreds of stories in what felt like an organized campaign — to reach the conclusion that the whole case should never have been brought in the first place.
The MeToo movement represents a long-overdue commitment to stand up for the victims of sexual assault, a commitment that my client shares with me. It has made sexual assault a very powerful charge, and that is mostly a good thing. But in the wrong hands, or handled the wrong way, it can be a very bad thing. Many of my liberal friends are still scratching their heads at how it was that we lost a powerful voice in the United States Senate in Al Franken for what was basically a “Saturday Night Live” sketch. That was a loss for the liberal cause, due to the stampede that left no time and space for any mediation.
We need to give enough time and space for the truth to catch up with the first impressions. We need all of the lawyers to take their obligations seriously, and we may need to impose new ones, particularly on the state court level, to assure that they do more than simply repeat the most lurid claims of unreliable clients. We cannot turn back time, nor does it make sense to rage at the “media”!
There are concrete steps that could be taken.
First, in federal court, lawyers on both sides are bound by Rule 11, which requires that the lawyer in signing any pleading certify that after “an inquiry reasonable under the circumstances” the filing is not being presented for an improper purpose, that the claims and defenses are supported by existing law or by a nonfrivolous argument, and that there is evidence to support the factual contentions. Surprisingly, many states, including New York, have no state court analogue.
Second, because of the special stigma attached to being accused of sexual assault, courts might consider as a matter of practice ordering such complaints, both criminal and civil, to be filed under seal (that is, confidentially) until they have passed an initial scrutiny of a judge. The mere filing of a complaint of rape against someone is almost always a career-ender. For a high-profile individual, that is especially so. What is lost by putting those allegations to some initial scrutiny before an individual is destroyed publicly? What is lost by laying out the case quietly before it is laid out in tabloids and tweets, if that is possible?
Third, the general requirement that lawyers do “due diligence” on their own clients needs some teeth. In the Black case, plaintiff’s counsel refused our offer to make available tapes and transcripts to them, which would have proven that their client was not telling the truth. They claimed they never signed confidentiality agreements, but that was clearly not so. There have to be limits on the extent to which you can rely on your client in the face of incontrovertible evidence that the client is unreliable. It has to mean something that we are officers of the court.
A few weeks before the motion to dismiss the entire case was granted, the appellate court ruled that the amended complaint, which had been larded up with irrelevant and titillating allegations about Jeffrey Epstein (which were extensively reported at the time), should have been stripped of all those references because they had nothing to do with the case and were placed there to generate salacious media headlines — “clickbait,” as it is called.
That only took a year and a half. Very lucky, my friends who practice in New York told me. And only two years until the whole case was thrown out. It could easily have taken more. It hardly feels lucky when you’re facing a stampede. The least we can do is try to temper its force.
