A Former Manhattan Prosecutor’s View of the DSK Indictment, Dismissal & Debacle

In the end, the Dominique Strauss Kahn case ended where it all began…the gutter. Detectives with the New York City Police Department arrested the former IMF leader and paraded him before the media. Manhattan District Attorney Cyrus Vance, Jr. obtained an indictment only to dismiss it months later. The press published their “gotch-ya'” photographs while tarring and feathering the accused Frenchman. A sixty-two year old French presidential candidate was exposed as an apparent womanizer possessing an overactive libido and a lifestyle that skirted criminality. A sympathetic immigrant woman who cried rape, but was caught in a web of half-truths and inconsistencies, may be more of a perjurer and victimizer than an actual victim. And lastly, an attorney, who stood to personify the protector of the voiceless victims of sex crime while simultaneously pocketing millions in a civil suit, looked at best ill prepared to manage the intensity of what may be the most sensational criminal case of the decade. At worst, this same attorney may have been a co-conspirator in his clients now debunked claims.

It is likely that one could ask fifty criminal lawyers their respective opinions about whether or not prosecutors rushed into the Grand Jury. It is equally likely that you would, or at least could, get fifty differing and reasonable responses. When asked by various news reporting agencies, I have always maintained that the case should not have been presented to the Grand Jury. Instead, prosecutors should have sought a bail package to avoid having their legal hand forced (it is interesting to note in the extensive Dismissal on Recommendation (DOR) filed by the Manhattan District Attorney’s Office, a detailed analysis of the complainant’s failings is given, but no reference whatsoever to the bail discussions). A bail package, similar to the one agreed to post-indictment, would have absolutely circumvented this P.T. Barnum affair that will forever scar a man with a wrongful indictment. Moreover, at no point in the DOR, or to my knowledge in any statement, did prosecutors assert that they believed the witness or the evidence in the case beyond a reasonable doubt prior to stepping into the Grand Jury. Clearly this is now the case, but the omission from the time of the indictment is concerning. Prosecutors should not be presenting evidence before that body in any case unless they subjectively and objectively believe the evidence will reach this level of certainty.

Whether or not Cyrus Vance correctly or incorrectly altered the potential course of world history by obtaining an indictment of a presidential candidate only to later dismiss it, will likely be debated for years. However, nobody can blame the Manhattan District Attorney and his staff for the shortcomings of the DSK case and its ultimate dismissal. In fact, over the course of the case, prosecutors acted ethically and upheld their duty as required by law. If blame is to be placed on anyone, and I believe that it should be, Nafissatou Diallo and her attorney, Kenneth Thompson, need only look in a mirror to see why the case was tossed back into the gutter. Ms. Diallo, according to prosecutors, did not just fabricate one story, she did it so many times even when given the opportunity to come clean. Her inconsistencies and misrepresentations of the case apparently grew in rhythm with the media frenzy. These falsifications and distortions – multiple mobile numbers where Diallo claimed only one, a recorded conversation with an incarcerated fiance regarding capitalizing on DSK’s wealth, an account with $60,000, fabrications made to immigration authorities and, quite significantly, about past rapes – would likely be enough for prosecutors to drop any “regular” case. Truly, as allegedly and correctly noted by ADA Joan Illuzzi-Orbon, “[n]o one with half a brain would ever put [Ms. Diallo] on the stand.”

Equally concerning, in lieu of shielding her from further damage and concentrating on explaining away the problems with his client and her multiple stories (assuming he believed she was truly being honest), Mr. Thompson did quite the opposite. Although Mr. Thompson blames the prosecution for sabotaging his client’s credibility, he, not the prosecution, arranged for an interview on prime time television. This mistake to generate more press further created a pirate’s booty of impeachment and cross examination materials. While slightly more advance than Criminal law 101, basic lawyering dictates that you insulate, not expose, your client and her case to further degradation. Protesting to the media and filing a request for a special prosecutor further doomed his client’s case. Instead of merely dismissing the indictment with a general DOR, DA Vance filed an extensive DOR. This twenty five page document can and will easily substitute for a defense team’s road map on how to tear Ms. Diallo apart at a civil deposition or trial. Whether Mr. Thompson had dollar signs in his eyes when the case commenced, I can only speculate. But if he did, those dollar signs are now ghoulish whammies.

There are many criminal attorneys and prosecutors who have “been around the block” equal to or more times than I have. I certainly have my opinions, but cannot profess to have all of the answers. DA Vance may have prematurely presented a case to a Grand Jury that he would take back if he could. Fortunately, however, DA Vance cannot be questioned as to his post-indictment ethical and legal steps. DA Vance, faced with a difficult decision and stepped back to dismiss an indictment, ensured that legal justice was ultimately done.

Out of fear of opining too much, there are two last issues or comments that need addressing in a general context. First, claims by individuals, regardless of how horrific they are, are merely claims. We, as the general public, should not rush to condemn until we know the facts. This is true even if the accused is someone we would never befriend or find personally appalling. Second, and of greater importance, prosecutors must fully recognize the power they wield and the complete destruction and decimation they can cause if they incorrectly exercise this power. While DSK was exonerated, few of us have tens of thousands or millions of dollars to fight back against the storm of law enforcement.

Saland Law PC is a New York criminal defense firm. Founded by two former Manhattan prosecutors, the New York criminal lawyers at Saland Law PC represent the accused throughout the New York City region.

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