As Ugly as the DSK Affair Was, the Justice System Worked

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Prosecutors went after Strauss-Kahn too quickly on weak charges, but in the end they followed the law by giving his defense team evidence that unraveled the criminal case

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The rape case against Dominique Strauss-Kahn effectively ended nearly two months ago, the day prosecutors disclosed in great detail to defense attorneys (and to The New York Times) the broad concerns they had come to have about the alleged victim's credibility. What has happened between then and now -- the public remonstrations, the publicity campaigns, the civil lawsuit, the political posturing -- is just the messy deconstruction of the apparatus of a high-profile criminal case in the 21st century.

The roadies, indeed, still are not quite off the stage. Even as New York prosecutors Monday were formally asking a judge to dismiss the charges against Strauss-Kahn, the lawyer for his accuser, Nafissatou Diallo, was said to be asking the judge to appoint a new prosecutor, a special prosecutor, to carry the case forward. That ain't gonna happen -- a district attorney gets to pick the case he wants to prosecute -- but you can't blame the alleged victim's lawyer for trying to take advantage of the last huge news cycle this fading story is ever likely to see. Besides, the criminal case is so... August 19th. The goal now is to effect the court of public opinion for the next fight: the civil lawsuit.  

There are no winners here -- there never are in sexual assault cases. The alleged victim now must fight on alone against Strauss-Kahn, in a civil case, without the benefit of prosecutors and the weight of state action. Even if she prevails at trial as a plaintiff, even if she ultimately forces Strauss-Kahn under oath to account for his actions, it would likely be years before she receives any money from him. And if she settles the case before trial, and cashes out more quickly, she'll likely never get any sort of a public apology, whether she is owed one or not. Now that the criminal case is all but gone, she's lost the hammer-hold; and everyone in the case knows it.

Strauss-Kahn avoids hard time in a state penitentiary. At his age, 62, he might have received what amounted to a life sentence if he were convicted of the most serious charges against him. But he has suffered grave professional harm as a result of his alleged conduct and is likely on the hook for millions of dollars in legal fees or should he lose the civil case or seek a settlement to avoid testifying in open court. Moreover, the episode in New York seems to have made Strauss-Kahn vulnerable to claims from other women. He may spend the next ten years fighting all this out in courts all over the world.

Prosecutors and the police, meanwhile, come away from this episode looking like overeager fools for arresting Strauss-Kahn, amid much fanfare, after he had boarded a flight to France. They should have conducted more of their investigation before they formally charged the former chief of the International Monetary Fund. They should have been more quick in evaluating the information given to them by the alleged victim. They should have been more sensitive to the language barrier that cropped up in this case. They should have done this and they should have done that. But just imagine the uproar that would have occurred in Manhattan and the outer boroughs had law enforcement officials let Strauss-Kahn take that flight to Paris.

The Law took a shot that the Strauss-Kahn case was stronger and less nuanced than it turned out to be. Officers arrested first and asked questions later, like law enforcement officials do all the time all over the country. You can blame Manhattan district attorney Cyrus Vance for that. You can blame the cops, too. But the fact is that the two people hurt most by this misfeasance were Strauss-Kahn and Diallo, the two individuals at the heart of the story. He was perp walked and then sent to jail, where he was subjected to humiliating leaks by law enforcement officials. Her credibility was publicly eviscerated. Everyone else in this narrative is just a spectator, including journalists, many of whom acted atrociously in covering this story.

Soon, perhaps in a few months, we'll hear word of a confidential settlement between Strauss-Kahn and his accuser. There are simply too many reasons for this to occur for it not to occur. Whatever political aspirations Strauss-Kahn may still have, for example, would be gravely wounded by the details of his civil deposition (never mind his trial testimony). It is true that his attorneys again declared his "innocence" Monday in crowing about the dismissal of the charges. But prosecutors didn't recommend dropping the charges against Strauss-Kahn because they necessarily believe he is innocent. They did so because they don't think they can win their case. In law and in life, that's a big difference.

No one ever said the criminal justice system is pretty, or perfect, or capable of always delivering a narrative that has a clear beginning, middle, and end. There is no legal right to a happy ending -- or even a dispositive one. The leavening truth here is that the Constitution worked pretty much the way it is supposed to work in these circumstances. Under the Supreme Court's precedent in Brady v. Maryland, prosecutors have a duty to share with defense attorneys any exculpatory evidence they find. This the prosecutors did, to their eternal credit. Moreover, a district attorney has an ethical obligation not to try a case he or she doesn't believe can be won. This, too, the district attorney considered.

That these rules are not always popular makes them no less valuable. That they didn't generate the sort of resolution we all wanted, one way or the other, doesn't mean that they have failed us -- or Diallo or Strauss-Kahn. Thus ends a purely American lesson in the rule of law for a French man and a Guinean woman who, unfortunately for both, crossed paths early one spring morning in a hotel room in New York City.

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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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