DSK: A Case Turned Upside Down

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The accuser's statements no longer appear reliable. Was the former International Monetary Fund chief the victim of a rush to judgment?

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Most of the compelling information about the suddenly-flailing sexual assault case against Dominique Strauss-Kahn came from outside of the courtroom Friday. After the former International Monetary Fund chief was released from house arrest by Administrative Judge Michael Obus, the rest of the cast of characters all emerged into the light of day to put their respective spins on the dramatic turn in the latest case of the century.

From Kenneth Thompson, the lawyer for the alleged victim in the case, we learned that his client, unsurprisingly, is angry with prosecutors for their evident decision to back away from the rape case against Strauss-Kahn. Thompson made a point of telling reporters that "a grand jury has already found her account credible," which is true as far as it goes but which doesn't go nearly far enough to save the prosecution's case. In fact, it was a rather feckless thing to say at a time like this.

First, grand jurors deal with the lower "probable cause" standard of proof. Criminal trials deal with the higher "reasonable doubt" standard. Just because grand jurors may have believed the alleged victim doesn't guarantee that trial jurors will. The woman at the center of this was neither subjected to cross-examination before the grand jury (which isn't allowed) nor confronted with any other evidence against her. And it seems likely (although still a bit unclear to me) that investigators learned about the accuser's main credibility problems only after Strauss-Kahn was indicted. (Memo to the great Willie Rashbaum at The Times: Please look into that).

From Strauss-Kahn's attorneys, Benjamin Brafman and William Taylor, Jr., we learned that they realize that while their client may be out from under his confinement, he is not yet completely out of trouble. A written statement from Team Strauss-Kahn was notable mostly for what it did not say: 1) that the client was the victim of the sort of quick-judgment, lynch-mob mentality which almost always coalesces around these sorts of high-profile cases, and: 2) that the client's reputation and his career have been tarnished, perhaps permanently, all because the cops felt they couldn't let him leave the country without arresting him.

The defense is biting its tongue now because there's no need to inflame sensibilities at this particularly sensitive moment in the proceedings

Outside of court, Taylor did say this: "It is so important in this country that people, especially the media, refrain from judgment until the facts are all in....how easy it is for people to be charged with serious crimes and for there to be a rush to judgment." But that's a virtual mash note compared to what he and his client must feel about how things have evolved since the middle of May. The defense is biting its tongue now because there's no need to inflame sensibilities at this particularly sensitive moment in the proceedings.

To do so would be piling on prosecutors (who leaked so much information about Strauss-Kahn back in May) and bad form to the accuser (while rape charges still are pending). The defense team knows that there will be plenty of time for anti-media (or anti-accuser) screeds after prosecutors formally drop the charges against Strauss-Kahn and allow him to go back to his native France. That's why Taylor mostly proclaimed his client's joy at being free again to be out and about. Happy happy, joy joy, the man who might have been President of France one day now may return to McCormick and Schmick's on West 52nd Street for some fish and wine with his daughter.

Finally, from prosecutors we learned how exactly The New York Times was able to get its world exclusive Thursday night and why prosecutors are so reasonably worried that they won't be able to get a conviction if they take this case to trial. If you read nothing else today about the Strauss-Kahn case, read this. It is a letter the district attorney's office sent to defense lawyers Thursday outlining the problems investigators encountered with the alleged victim's statements. It is the single most important document yet revealed since this whole affair began six weeks ago. And it explains virtually everything that has happened over the past 24 hours. (Here's what I wrote on the case Friday morning, before the hearing and all these comments).

Compelled by legal precedent (Brady v. Maryland) to share the potentially exculpatory information with Strauss-Kahn's attorneys, prosecutors wrote in part:

Additionally, in two separate interviews with assistant district attorneys assigned to the case, the complainant stated that she had been the victim of a gang rape in the past in her native country and provided details of the attack. 1) During both of these interviews, the victim cried and appeared to be markedly distraught when recounting the incident. In subsequent interviews, she admitted that the gang rape had never occurred. Instead, she stated that she had lied about its occurrence and fabricated the details, and that this false incident was part of the narrative that she had been directed to memorize as part of her asylum application process.

Presently, the complainant states that she would testify that she was raped in the past in her native country but in an incident different than the one that she described during initial interviews. In the weeks following the incident charged in the indictment, the complainant told detectives and assistant district attorneys on numerous occasions that, after being sexually assaulted by the defendant on May 14, 2011 in Suite 2806, she fled to an area of the main hallway of the hotel's 28" floor and waited there until she observed the defendant leave Suite 2806 and the 28" floor by entering an elevator. It was after this observation that she reported the incident to her supervisor, who arrived on the 28" floor a short time later. In the interim between the incident and her supervisor's arrival, she claimed to have remained in the same area of the main hallway on the 28" floor to which she had initially fled.

The complainant testified to this version of events when questioned in the Grand jury about her actions following the incident in Suite 2806. The complainant has since admitted that this account was false and that after the incident in Suite 2806, she proceeded to clean a nearby room and then returned to Suite 2806 and began to clean that suite before she reported the incident to her supervisor.

In my experience covering sexual assault cases -- and I am by no means an expert -- it is not uncommon for victims to wait before reporting the crime. Attorney Thompson, on behalf of the alleged victim in the case, was right about that when he emphasized the point Friday outside of court. But the above passages otherwise raises fatal questions about the prosecution's case here. Not only could defense attorneys claim that the accuser is a liar, they might also be able to claim, based upon government interviews with the complaining witness, that she has lied before about rape. I am not saying that such a strategy would be fair. I am just saying that it would almost certainly be permitted into evidence at trial with devastating impact upon the jury.

The next hearing in the case is July 18th and it seems reasonable to predict that prosecutors will decide between now and then whether they want to proceed. I don't think they would have permitted Strauss-Kahn to be released from house arrest if they planned to take him to trial for rape. And I don't think the case against the defendant is going to get any stronger between now and then. Do you?

Image: 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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