5 Ways to Think About The Times' Strauss-Kahn Story

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The facts laid out by the paper virtually guarantee that prosecutors would lose the case if they were to proceed to trial

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The one immutable fact about high-profile cases, especially at the beginning, is that the people who know what happened aren't talking and that the people who are talking don't know what happened. I mentioned that in the first piece I wrote on the Dominque Strauss-Kahn sex assault story on May 16th and it's worth repeating again now precisely six weeks later. Almost always in a criminal proceeding, things aren't exactly what they seem.

The New York Times' story Thursday night -- which posits the notion that the prosecution's case against the former chief of the International Monetary Fund chief is "on the verge of collapse" -- is a devastating bit of business. Even if portions of it are inaccurate -- and I am not claiming that they are -- the piece virtually guarantees that prosecutors would lose the case if they were to proceed to trial. This is so because the alleged victim's credibility now is forever shattered -- for her, there's no going back from this in the court of public opinion, which will make up the jury pool, which ultimately would make up the deliberating panel. Such is the power of the press! And such is the burden of proof in a criminal case. 

As we wait for Friday's bail hearing, in which the defendant is widely expected to be released upon his own recognizance, here are five quick things to keep in mind about what's happened and why.

1. No, the Times' story doesn't prove Strauss-Kahn's innocence any more than earlier reports leaked by the police proved his guilt. But, today, that's almost beside the point. Criminal trials are only marginally about searching for the truth of the matter. They are, instead, mostly a searing test of evidence. What can be proved by the government beyond a reasonable doubt? In the Kahn case, especially if the Kahn team were to concede that some sort of sexual encounter took place, the key test would be the credibility of the accuser versus the credibility of the defendant. And now, if the Times' story is true, there are grave doubts about the credibility of the complaining witness.

2. I won't get into the details of the credibility issues but one leaps out. Prosecutors could perhaps explain away why the alleged victim might not have been perfectly honest in an application for asylum -- many people fudge facts to try to stay in America -- but it will be virtually impossible to neutralize this (from the Times' piece):

According to the two officials, the woman had a phone conversation with an incarcerated man within a day of her encounter with Mr. Strauss-Kahn in which she discussed the possible benefits of pursuing the charges against him. The conversation was recorded.

If this is true, it establishes a motive for the woman to (falsely) accuse Kahn of rape after a consensual sexual encounter. It is enough, alone, to establish reasonable doubt? Prosecutors seem to think so and they are probably right.

3. If, as the Times reports, the "parties are discussing whether to dismiss the felony charges" against Strauss-Kahn it's a good bet this will happen sooner rather than later. Prosecutors don't bail from high-profile cases six weeks into them unless they have good reason to-- they don't even talk about bailing from such cases unless they have a good reason to. The lawyers know that credibility issues like the ones raised here don't get easier to handle (read: explain away) as the case nears trial. And, don't forget, prosecutors have legal and ethical obligations not to pursue a criminal case they don't reasonably believe they can win.

4. If the case against Strauss-Kahn indeed crumbles, don't be surprised if prosecutors end up charging the alleged victim and the man who has reportedly deposited all that money into her account over the years. New York officials would do this partially to save face-- the whole episode teeters now on the edge of world-wide embarrassment-- but also to make an example of the pair. "Thou Shalt Not Bear False Witness" isn't just one of the Ten Commandments. It's also a crime (and perhaps a federal crime, too) to set someone up. Again, just to be clear, I couch all of this with a big "if."

5. Just as there was the typical rush to judgment against Strauss-Kahn, a deplorable but now sadly routine part of the American criminal process, there will now likely be a rush to judgment against the woman. Just as it was prudent to be cautious in the first instance it makes sense to be cautious now. But it's important to note the sourcing of the Times' story. It was not the result of a leak from defense attorneys. The story came from "law enforcement officials" themselves, who would have less reason to dismantle the prestige of their main witness. This gives the Times' piece far more weight, in my view, and makes it far more likely we are seeing the prelude to the end of another case of the century.

Of course, I could be completely wrong. In any event, we'll know much more, I suspect, after the bail hearing and I'll make sure to come back and update this then.

Image credit: 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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