Charges Dropped Against DSK

After months of public handwringing, prosecutors in the Manhattan DA’s office yesterday dropped their case against Dominique Strauss-Kahn — not because justice required it, not because they learned no crime had been committed, not because they uncovered evidence that the complainant, Nafissatou Diallo, had lied about being sexually attacked by Mr. Strauss-Kahn. Instead, they simply lacked the stomach for it.

Those who wondered in 2009 whether an improbable candidate for Manhattan district attorney, a Seattle defense lawyer named Cyrus Vance, Jr., could ever begin to fill Robert Morgenthau’s big shoes now have their answer: nope. Mr. Vance’s decision to dismiss the biggest prosecution of his brief tenure more than anything else shows a remarkable lack of the kind of guts essential for any big city DA.

Mr. Vance’s office, in moving to dismiss the case, claimed it had lost faith in Ms. Diallo, given their discovery that she had lied on her tax returns and on her asylum application. Mr. Vance also said that he was shocked, shocked to learn that Ms. Diallo had expressed interest in bringing a civil claim for damages against Mr. Strauss-Kahn.

Certainly these facts would be prime cross-examination material at trial, and Mr. Strauss-Kahn’s attorneys should be grateful to Mr. Vance for so diligently working overtime to do their job for them. No evidence uncovered by Mr. Vance’s investigators, however, directly contradicted Ms. Diallo’s contention that she was assaulted by Mr. Strauss-Kahn. In fact, the physical evidence supported her version of events, which Mr. Vance was pleased to proclaim just a short time ago.

Mr. Vance’s decision is troubling on many fronts. First, if you are a women who has been raped or sexually attacked, you already have a natural reluctance to come forward to report the crime. Victim’s of sexual assault tend to say that the main reason they keep silent is the fear that no one will believe them. Vance’s decision here proves their fears justified. Before she even got to trial, Ms. Diallo had to run a gauntlet of Mr. Vance’s prosecutors and investigators. As a result, more women will keep silent. More rape will go unreported.

Ironically, Vance’s opponent in the 2009 election was Judge Leslie Crocker Snyder, a woman instrumental in putting in place New York’s rape shield law, which was designed to protect victims of sexual assault from cross-examination on their sexual history for purposes of destroying their credibility at trial.

Mostly what’s troubling about Mr. Vance’s decision is what it reveals about Mr. Vance himself, specifically an astonishing naiveté about criminal prosecution and about human nature. Good prosecutors need to understand human nature to speak both to their witnesses and to the juries who hear their cases. Mr. Vance, however, seems to think that a person who has lied about something can never again be believed about anything.

Juries know better. To be sure Ms. Diallo’s tax returns would provide a few uncomfortable moments at trial, but at the end of the day juries are not stupid. Juries know that someone can tell lies without being a liar. Juries understand what Mr. Vance evidently does not: that all of us lie to one degree or another. Mr. Vance would certainly have preferred Ms. Diallo remained the wholly sympathetic “single immigrant mom” she appeared at the start, but experienced prosecutors understand that sometimes a woman who lied on her tax returns can be raped in a hotel room.

 

 

3 Comments

  1. C Starr says:

    Given that you are a lawyer it is extraordinary that you’ve so thoroughly misunderstood the issue affecting Ms Diallo’s credibility. The problem is not that she is a liar but that she is willing to lie under oath. Regardless of Mr Vance’s earlier statement, the Motion to Dismiss clearly states that physical evidence did NOT confirm sexual assault despite Ms Diallo’s tearful (though varied) recitations of the event. However, your point with which I have greatest difficulty is the idea that sexually abused women will be less likely to come forward because of this case. I can’t imagine on what possible evidence you base such an irrational idea. However, if you’re correct then Ms Diallo should be doubly censured, because her lies resulted in the abandoning of the case, thus negatively affecting the lives of true victims of violent sexual assault, whether they are men, women or children.

    • robert says:

      You make some good points, but just to respond:

      – Yes, Ms. Diallo was willing to lie under oath (on her asylum application), but I trust that most juries would view this as fairly benign and very common. (This is a problem with our political asylum policies rather than with Ms. Diallo, in my view.) If one assumes your position and holds, as does the DA, that because of her past lie Ms. Diallo cannot be believed, then Ms. Diallo can be raped in Manhattan and unless there is a videotape of the assault and a sworn confession of the perpetrator the DA will do nothing about it.

      – Ms. Diallo’s “varied” versions of the alleged assault are not inconsistent with truth. The variations in her renditions, at least as reported in the media, are inconsequential. In fact, one would expect the DA at trial to say, “Ladies and gentlemen of the jury, the defense points out the inconsistencies in Ms. Diallo’s story. They also want you to believe she is making this assault up in order to sue the defendant for damages. I suggest, ladies and gentlemen, that if Ms. Diallo were going to lie, she would have lied better. She would have gotten her story straight. She would have been one hundred percent consistent in telling her story. I suggest to you that the inconsistencies in her story are the hallmark of truth . . . ”

      – How in the world can you think it is “irrational” to believe the DA’s treatment of Ms. Diallo will dissuade women from reporting sexual assault or rape? Even the DA acknowledged this possibility. Rape is already a grossly under-reported crime, and the public roasting the DA gave Ms. Diallo will certainly affect future rape victims when they consider whether or not to come forward. In my experience, the main reason rape victims are afraid to come forward is a fear that they will not be believed. Here, the DA found no evidence Ms. Diallo was lying about the assault, although they found evidence of past unrelated lies. Based on that finding they decided not to believe her. In my view, that decision was wrong.

  2. […] his fellow high society swell Cy Vance Jr. to task for anything . . . not for his mishandling of DSK, not for his turning the nation’s premier prosecutor’s office into a […]

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