08.23.11

Justice Prevails in DSK Case

If criminal charges against Dominique Strauss-Kahn are dropped as expected, it won’t be because of his power or money. Lawyer Gerald L. Shargel on the American legal system at work.

It was the kind of arrest that made police and prosecutors proud. On May 14, 2011, Nafissatou Diallo, a hardworking hotel maid, gave a stirring account of how she had been sexually brutalized by a hotel guest. The woman, intelligent and sufficiently well-spoken, furnished vivid detail of forced fellatio and attempted rape. Careful questioning by experienced detectives failed to shake her story. Members of the NYPD Crime Scene Unit found semen precisely where she said it would be found. A physical examination revealed vaginal trauma. In a few short hours, the police had seamlessly assembled ample probable cause to arrest Dominique Strauss-Kahn, one of the most powerful men in the world, on the most serious of sexual assault charges.

The May 14 arrest was almost poetic. Neither fortune nor fame could insulate Strauss-Kahn from accusations hurled by a humble immigrant housekeeper. The arrest showed, as Bob Dylan once wrote, “the ladder of law has no top or no bottom.”

But on Monday, a little more than three months after that arrest, Manhattan prosecutors requested that the court dismiss all charges against Strauss-Kahn and exonerate his bail. The prosecutors’ motion to dismiss the case had nothing whatsoever to do with position or place. Strauss-Kahn and all his riches did not influence the outcome. The class or cultural divide played no part. The motion to dismiss was plainly grounded: For reasons well identified, the prosecutors had lost confidence in their case. They now do not believe that the charges against Strauss-Kahn can be proven beyond a reasonable doubt.

Try as the tabloids might, there is no villain here. There is no blame to be placed. What happened in the Strauss-Kahn case, stripped of its celebrity, is commonplace. The district attorney’s office continued its investigation. The facts they uncovered are now well known. Before being made public, they were timely disclosed to the defense. The purported victim, the DA's office had decided, had repeatedly lied about key elements of her story, leading the investigators to conclude that she could not survive robust cross-examination. It was not the fact that she sought to recover money in a civil suit.  If she were wronged, she had every right to be compensated and victims of sexual assault commonly prosecute a civil action. Nor was it the fact that she lied on an asylum application, fabricating a gang rape that never occurred. Prosecutors are often confronted with flawed witnesses. But if the story is cogent and the corroboration is there, prosecutors can overcome, and frequently do overcome, the flaws. But here the credibility issues were of the worst kind. Prosecutors and investigators claim that she was repeatedly lying to them, unpredictably changing her story and raising reason to doubt that she was telling the truth. The inconsistencies turned toxic.

There are some who continue to argue that the self-proclaimed victim, Nafissatou Diallo, did not get the process to which she was due; that the district attorney was duty-bound to put this case before a jury. But a criminal trial is not a straw poll where jurors simply voice who they favor.  The issue in a criminal trial is singular—whether the prosecution has proven the defendant’s guilt beyond a reasonable doubt. Can the public expect a prosecutor to argue to the jury that Strauss-Kahn’s guilt has been proven beyond a reasonable doubt while the district attorney himself harbors such doubt? The question is rhetorical.

Try as the tabloids might, there is no villain here. There is no blame to be placed.

To those who still “favor” Diallo, it should be remembered that her civil suit survives, unaffected by the district attorney’s discretionary decision not to prosecute the criminal case. And, notably, in the civil action the plaintiff does not have the burden of proving an unwanted sexual assault beyond a reasonable doubt. The measure of proof is significantly lower, a “preponderance of evidence,” as it’s called. All that the defendant need show in a civil case in order to recover monetary damages is that it is “more likely than not” that Strauss-Kahn assaulted Diallo at the Sofitel on May 14. It will be interesting to see how that turns out.