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Tuesday, August 23, 2011

Diallo Loses Her Case Against DSK: Her Lawyer's Fault

Strauss-Kahn dismissal about proof, not truth

The sexual assault case against Dominique Strauss-Kahn is now over. The judge has granted the prosecutors' motion to dismiss the case against the former head of the International Monetary Fund. But for all the complex legal machinations, one simple question remains unanswered: What happened between Strauss-Kahn and Nafissatou Diallo, the housekeeper at the Sofitel in New York, on May 14?

The answer -- or nonanswer -- explains something about our legal system. Cyrus Vance Jr., the Manhattan district attorney, moved to dismiss the case against Stauss-Kahn because his staff came to believe that Diallo could not be trusted as a witness.

"The nature and number of the complainant's falsehoods leave us unable to credit her version of events beyond a reasonable doubt, whatever the truth may be about the encounter between the complainant and the defendant," the prosecutors wrote in a 25-page brief filed Monday. "If we do not believe her beyond a reasonable doubt, we cannot ask a jury to do so."

Notice the key phrase, "whatever the truth may be." Like any prosecutor, Vance is concerned above all with what he can prove, not "the truth." As the prosecutors detailed in their brief, Diallo's credibility problems were extraordinary. In their account, she lied about the chronology of events with Strauss-Kahn, about her background, about her finances, about her associates and much else besides.

The prosecutors do not say that she lied about what happened in the hotel room with Strauss-Kahn. Their judgment is narrower; because of her lies about other subjects, a jury would never believe her account of the events in question.

If Diallo had taken the stand at a trial, she would have been subject to ferocious cross-examination by Benjamin Brafman, who is one of the best lawyers in the business. But what would Brafman have been trying to do? He would have tried to persuade the jury that Diallo was not worthy of belief, and based on the prosecutors' submission, he would have had a great deal of ammunition to make that case.

But Brafman's task, by design, would have been destructive, not constructive. His only duty would have been to tear down the story that Diallo told, not to build a credible one of his own. That's what the burden of proof means. Prosecutors have to prove their case; the defense need only poke holes, not present an alternative.

The prosecutors' account of the actions of Strauss-Kahn are similarly narrow. The picture they paint of him is an ugly one. Within minutes of Diallo's arrival in his hotel room, she was spitting out his semen in the hotel hallway. But the prosecutors say that, at this point, they cannot prove that Strauss-Kahn assaulted Diallo. At a minimum, it seems, Strauss-Kahn behaved like a cad and a creep, but that is a moral, not legal, judgment.

In sum, then, none of the parties in the case are principally concerned with determining the "truth" of what went on in that room. (Journalism, in its imperfect way, is concerned with determining truth.) The prosecution and defense are concerned only with what they can prove, or disprove, in a courtroom. That's not a criticism, just a reflection of how our system works. So what happened in that hotel room? Chances are, we'll never know.

Judge Orders Dismissal of Charges Against Strauss-Kahn

A judge formally ordered the dismissal of all criminal charges against Dominique Strauss-Kahn on Tuesday, but he said his order would be stayed until an appellate court decides whether a special prosecutor should be appointed.

Prosecutors in the office of Cyrus R. Vance Jr., the Manhattan district attorney, told Justice Michael J. Obus of State Supreme Court in Manhattan that they could not prove the case beyond a reasonable doubt because of serious credibility issues with the hotel housekeeper who had accused Mr. Strauss-Kahn of sexually assaulting her as she entered his suite to clean it.

The dismissal brought some semblance of vindication to Mr. Strauss-Kahn, 62, the former managing director of the International Monetary Fund, after his stunning arrest more than three months ago. He was taken into custody aboard an Air France jet at Kennedy International Airport and then paraded before news cameras, looking disheveled and in handcuffs.

For his accuser, Nafissatou Diallo, a 33-year-old Guinean immigrant, the result caps a precipitous fall. Prosecutors initially portrayed her as a credible and powerful witness, only to say that her myriad lies about her past — which included a convincing, emotional but ultimately fraudulent account of being gang raped by soldiers in Guinea — ended up undermining the case.

Ms. Diallo, who has made her identity public, still has a civil lawsuit pending against Mr. Strauss-Kahn for unspecified monetary damages, and her lawyer, Kenneth P. Thompson, has been relentless in his assertion that Mr. Strauss-Kahn sexually assaulted his client and that Mr. Vance’s office abandoned the case too soon.

Mr. Thompson made one last desperate attempt to keep the criminal case going, filing a motion on Monday asking that Mr. Vance’s office be disqualified. But about an hour before Tuesday’s hearing started, a court clerk handed out a one-page decision in which Justice Obus denied Mr. Thompson’s motion. However, Mr. Thompson has appealed the decision, which led to Justice Obus’s staying the dismissal.

After the hearing, Mr. Strauss-Kahn issued a statement, characterizing the past two and a half months as “a nightmare for me and my family,” and thanking the judge, his wife and family and other supporters.

He added that he was “obviously gratified that the district attorney agreed with my lawyers that this case had to be dismissed.”

“We appreciate his professionalism and that of the people who were involved in that decision,” he continued. Mr. Strauss-Kahn added that he looked forward to “returning to our home and resuming something of a more normal life.”

The case has attracted international attention ever since the arrest of Mr. Strauss-Kahn, a leading figure in the Socialist Party who was considered a top candidate for the French presidency; each appearance in court has drawn a carnival-like atmosphere outside, with journalists and camera crews mixing with protesters. The scene on Tuesday was no exception: Well before Mr. Strauss-Kahn arrived at 11:03 a.m., about three dozen protesters gathered. The bulk of the sentiments were decidedly against Mr. Strauss-Kahn.

There were chants (“D.S.K., shame on you,” and “Whatever we wear, wherever we go, yes means yes, no means no”). There were placards (“All rape victims deserve a fair trial,” “Stop victim blaming of rape victims” and one with an illustration of a police officer admonishing a top-hatted plutocrat and the slogan “Go to jail”).

And there were a few speeches in which people condemned Mr. Strauss-Kahn as a serial sexual abuser and criticized Mr. Vance for ending the case against him.

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Sources: AP, CNN, Daily Beast, Youtube, Google Maps

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