The Strauss-Kahn Case: Follow the Evidence, Not Immunity Rules


How to keep the key legal issues in focus as the story develops over the coming weeks

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If you are inclined to follow the startling sex assault case against International Monetary Fund chief Dominique Strauss-Kahn, my humble advice to you is to focus more on the evidence and less on the complex issue of immunity rules as they relate to quasi-governmental officials. It's obviously very early on in this case, and I reserve the right to be wrong, but my gut tells me that Strauss-Kahn's legal team -- which includes the ubiquitous Benjamin Brafman -- either won't assert an immunity defense or won't prevail with it in American courts even if they do.

On the other hand, it is deeply significant that Strauss-Kahn underwent Sunday what his lawyers called "a scientific forensic examination" of his body even as prosecutors were moving for a court order for a search warrant that would allow them to check out his clothes. ABC News called Sunday's testing "a forensic imaging exam" but it doesn't really matter what you call it. In a he-said/she-said rape case, without any obvious eyewitnesses, this is the stuff that typically determines the outcome. In other words, with the defendant already "examined" in this fashion, the case (here's the complaint) may already be over but for all the shouting.

Ah, the shouting. Try not to listen to too much of it. Or at least try to keep an open mind about what you are hearing. Right now, only 48 hours or so into this burgeoning international scandal, the people who know what is going on generally are not talking. And the people who are talking generally don't know what is going on. The misinformation and disinformation that emanates from these high-profile cases in the first few days is harder to spot than the eternal perp walk we've already all seen. But it's no less present and certainly no less cynical.   

As People of the State of New York v. Strauss-Kahn rolls on, then, there are six things I'll be looking for over the next few days and weeks:

  1. Stories about the alleged victim, a super-sensitive topic upon which my colleague Jeffrey Goldberg already has weighed in.
  2. Stories about whether and to what extent Monday's denial of bail to Strauss-Kahn will impact his defense strategy -- it will likely make the trial arrive sooner rather than later, no?
  3. Leaked stories about what the DNA tells us (stories which may or may not be true).
  4. Discussion of a looming civil complaint against the financier.
  5. Stories about potential alibis -- the daughter, the restaurant, etc.
  6. Other women emerging to make their own claims (and, sure enough, in the time it took me to write this, I have discovered that Nos. 5 and 6 already have come true).

Image credit: Shannon Stapleton/Reuters

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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