Thursday, July 28, 2011

Strauss-Kahn Shows Justice for Accused/Accuser Uses Same Rules

If Manhattan District Attorney Cyrus Vance Jr. had decided to codename his investigation of former International Monetary Fund chief Dominique Strauss-Kahn, he might have called it “Operation Rock and a Hard Place.”

Eleven weeks ago, with Strauss-Kahn headed to a country that didn’t extradite, Vance had to decide whether to charge the French presidential hopeful with sexually attacking a hotel maid, based on his assessment of a credible claim. Six weeks after he said the maid admitted telling lies about her background and the aftermath of the alleged attack, Vance is grappling with whether to drop the charges even though there’s evidence of a crime.
Lawyers for Strauss-Kahn and the maid are demanding that Vance make opposite decisions. Without indicating any doubts about pursuing the case, Vance has said he’s sticking to the principle he laid down on July 1, when prosecutors told the judge in charge of the case that the maid, Nafissatou Diallo, had lied and had other “credibility issues.”
“As prosecutors, our duty is to do what is right in every case, without fear or favor wherever that leads,” Vance said after the court hearing. “Our judicial system seeks to ensure fairness and justice for both victims and defendants.”
Since July 1, Vance, 57, has provided no public details of his investigation of the alleged May 14 attack in Strauss-Kahn’s Sofitel suite and set no deadline to finish his probe. A status hearing on the case was postponed to Aug. 1 from July 18 and then to Aug. 23, giving him more time to complete his mission.
After Vance’s disclosure, Straus-Kahn’s lawyers asked him to drop the charges of sexual assault and attempted rape, a demand echoed by French supporters of the 62-year-old ex-IMF chief, who is known as “DSK” in France.
On the Offensive
Going on the offensive, Diallo’s lawyer Kenneth Thompson demanded the same day that the district attorney pursue the case, claiming the 32-year-old maid hadn’t lied about her core claim: Strauss-Kahn had attacked her. Through statements and press interviews Thompson and Diallo, a political refugee from Guinea, have since attempted to explain or deny Vance’s “credibility issues” and other damaging allegations.
A translation digest done for Vance of conversations Diallo had in her native dialect about Strauss-Kahn with a jailed friend quoted her as saying: “He’s got a lot of money. I know what to do,” according to a person familiar with it. After she, Thompson and prosecutors reviewed the taped conversations for hours July 27, he told reporters she’d never said that.
“What she said was, ‘He is powerful and rich,’ during one conversation,” that was “merged together” with another in the translation, Thompson said.
Drop the Charges
Diallo took her damaged case to the public by revealing her identity in tearful print and broadcast interviews last weekend. She detailed her side of the story and denied a New York Post story, based on defense sources, that she is a prostitute.
“I want justice,” she told ABC News. “I want him to go to jail,” adding: “God is my witness. I’m telling the truth. From my heart. God knows that. And he knows that.”
In a statement, Strauss-Kahn lawyers said Diallo is “the first accuser to conduct a media campaign to persuade a prosecutor to pursue charges against an innocent person from whom she wants money.” Thompson said she plans to file a civil damages suit against Strauss-Kahn.
After the Aug. 1 status hearing was postponed, Strauss- Kahn’s lawyers asked that the charges be dropped by the new Aug. 23 date.
The French
Amid noisy demands from both sides, French officials and intellectuals have called Vance’s handling of the case a rush to judgment. Former Culture Minister Jacques Lang called DSK’s arrest and charging “a lynching.” French philosopher Bernard- Henri Levy said Vance, the son of a former U.S. secretary of state, had destroyed Strauss-Kahn’s presumption of innocence.
New York defense lawyers, normally critical of police and prosecutor tactics, took the opposite view. The initial decision to charge Strauss-Kahn, who pleaded not guilty, was the correct one, given the evidence available at the time, the nature of the crime and the flight risk Strauss-Kahn presented, defense lawyers such as Gerald Shargel said.
“They did everything they were supposed to do,” said Shargel, a criminal defense lawyer in New York for more than 30 years who also teaches criminal law at Brooklyn Law School. “This DSK case is like the perfect storm. The DA’s office felt it had its back against the wall and didn’t want him to leave the country. I don’t think their judgment calls are subject to being second-guessed.”
Swift Action
Records show authorities moved swiftly during the more than 14 hours between the alleged assault, which police said occurred around noon on May 14 at a Midtown Manhattan hotel, and Strauss- Kahn’s arrest at about 2:45 a.m. the next day at the Special Victims Squad office in East Harlem.
Vance spokeswoman Erin Duggan summed up the district attorney’s view of the case: “The accuser’s credible account of a sexual assault by a stranger was corroborated by multiple sources, including witnesses and evidence. It was vetted and appropriately presented to the grand jury under the time constraints and circumstances unique to this case. After indictment prosecutors continued their investigation and disclosed additional relevant information to the defense and to the court, as they are legally and ethically obligated to do.”
That tracks the assessment of the arrest and initial charges by Gerald Lefcourt, a New York-based criminal defense lawyer who has represented members of the Black Panthers and actor Russell Crowe. “They had probable cause, corroboration to the witness’s story when they made the arrest,” he said. “That was not, in any normal view of how the criminal justice system works in this country, a rush that wasn’t appropriate.”
‘On the Plane’
Brad Simon, a former federal prosecutor in New York who practices in France, said he doesn’t fault the decision to arrest Strauss-Kahn even after hearing the strong French criticism of U.S. authorities.
“He was already on the plane, which means that if they didn’t apprehend him, he’d be gone,” Simon said. “I’m a defense attorney, and I’m generally skeptical of prosecutors, but here, what choice did they have? The French wouldn’t have willingly turned him over. Just look how they’ve reacted since.”
Strauss-Kahn’s lawyer Benjamin Brafman declined to comment on defense lawyers’ view of the case. After prosecutors’ July 1 disclosures about the accuser’s credibility, Brafman said the case “should never have been brought to begin with.”
One reason for the strident response from France may be the different way the two countries’ justice systems work.
‘Very, Very Fast’
“In the U.S., things went very, very fast,” said Thomas Morin, a Paris-based lawyer at Linklaters LLP. “In France, you have to either file a complaint to the police or through a lawyer to a judge, and things don’t begin to move for several weeks or even months.”
Dominique Moisi, a founder and senior adviser at the French Institute for International Relations in Paris, said on France24 Television July 5 that the case would have been handled in France, “with greater discretion.”
“For a lot of French people, the U.S. system broke down,” he said. “They feel that the Americans provoked an enormous global scandal without bothering to zero in on the personality of the woman who was accusing DSK.”
In a letter to defense lawyers, Vance said Diallo’s credibility issues included telling prosecutors and a grand jury that after the alleged assault she’d fled his hotel room and hid in the hallway. She later said that after the incident she’d cleaned a nearby room, then returned to clean Strauss-Kahn’s suite before reporting the attack to her supervisor.
Diallo also told prosecutors on June 9 that she had lied in recounting how she’d been granted political asylum, including a tale about being gang raped.
Diallo’s Interviews
In on-the-record interviews published by Newsweek and broadcast by ABC News, Diallo, reiterated her claim that Strauss-Kahn had sexually assaulted her. Through Duggan, Vance declined to comment on her remarks, published July 24 and 25.
Without the benefit of her recent remarks at the time of the initial charges, police and prosecutors relied on what they had back then: The maid had identified Strauss-Kahn from a photo within hours of the alleged attack and picked him out of a police lineup at 4 p.m. the next day. A sexual encounter of some kind was corroborated by forensic DNA evidence police found at the scene, according to Assistant District Attorney Joan Illuzzi-Orbon.
“It’s DSK who put this whole thing in motion,” said Linda Fairstein, former chief of the Manhattan District Attorney’s Sex Crimes Unit, who unsuccessfully tried to get an United Nations official accused of a similar sex crime 20 years ago pulled off a plane as he headed for a no-extradition country. “It’s his semen on her clothes and in that hotel room; there’s no question a sexual encounter occurred. I don’t know what people expect of police. You have a victim who was found credible at the time.”
No Special Treatment
Fairstein, who was never able to prosecute the official, disputed any suggestion that police and prosecutors should have safeguarded Strauss-Kahn’s reputation by not placing him under arrest and asking him to remain in the U.S. during an investigation of the woman’s claims.
“If he were a French dishwasher from a restaurant in Paris he wouldn’t have been given that treatment,” she said. “A sexual encounter happened, and why in the world would he be entitled to a privilege that wouldn’t be extended to anyone else? It would have broken every police protocol to say ‘We’ll look into this, and we’ll get back to you.’”
Once Strauss-Kahn was arrested, New York defense lawyers did say there were missteps in the way he was treated by police and prosecutors. The decision to parade him in handcuffs before reporters, news photographers and television cameras in a so- called perp walk was one cited by Levy as an abuse.
“This vision of Dominique Strauss-Kahn humiliated in chains, dragged lower than the gutter -- this degradation of a man whose silent dignity couldn’t be touched, was not just cruel, it was pornographic,” Levy said in a July 2 column for the Daily Beast, an online news website.
Lefcourt, a former president of the National Association of Criminal Defense Lawyers, said that “in a perfect world, there are a few things we know they could have avoided. First they created this monstrous scene with the perp walk, and then they asked for no bail.”
The decision to oppose bail was seen as cruel by French critics such as Levy. Defense lawyers said it was a tactical misstep because keeping Strauss-Kahn in custody set a legal clock ticking to get a grand jury to indict him, making the charges formal.
Assistant Manhattan District Attorney John “Artie” McConnell called Strauss-Kahn “an incurable flight risk” at a May 16 bail hearing.
New York Law
Under New York law, if a suspect remains in custody without bail after arrest and arraignment, prosecutors must indict or release the suspect within five or six weekdays, depending on the day of arrest.
By holding Strauss-Kahn in custody, “they really boxed themselves in a corner,” said Henry Mazurek, a New York defense lawyer. “They didn’t have the opportunity to make a review of the evidence and a background check of the complainant, so they ended up relying almost entirely on her and the physical evidence.”
Should Vance decide to drop the charges after his investigation is complete, Strauss-Kahn may fare worse in France, where he faces a similar accusation, said Denis Chemla, a Paris-based Herbert Smith LLP partner who is also licensed to practice law in New York.
The Banon Case
French writer Tristane Banon has told Paris police that Strauss-Kahn attempted to rape her eight years ago. A preliminary investigation of the matter began July 8, Paris prosecutors said. Strauss-Kahn sued her for libel after her complaint. Vance’s prosecutors met with her lawyer July 19. They may interview her as part of their investigation, a person familiar with the case said.
“For all the criticisms we have of the American system, nothing can erase that the American system is fairer and quicker than ours,” Chemla said. “The most terrible thing is that the guy is going to be under investigation for two and a half years and after two and a half years, nothing will come of it. That’s the French system. While in the American system, one can see a prosecutor who at the end of the week says ‘Oh hold on, there’s a problem.’ We’re not capable of doing that.”
The case is People v. Strauss-Kahn, 11-02526, New York State Supreme Court, New York County (Manhattan).

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