Dominque Strauss-Kahn, the French national and former head of the IMF, may be celebrating his own Independence Day accompanied with a display of fireworks that would revival any July 4th celebration. According to the New York Post, DSK could “walk” as early as his next court date after Manhattan prosecutors have come to realize there are major credibility issues with the maid from the Sofitel. Not only would a dismissal call into questions the zealousness of prosecutors who rushed into the Grand Jury to obtain an indictment, but the grand finale could have both political and financial ramifications for many parties involved. The encore to this international spectacle would be the consequences of a perceived gaffe on public confidence.
According to the New York Post, a source familiar with the investigation by the Manhattan District Attorney’s Office stated that “[W]e all know this case is not sustainable. Her credibility is so bad now, we know we cannot sustain a case with her.” If recent stories and articles can be believed, this revelation by DA Cyrus Vance’s team seems reasonable. There have been reports in various media sources that the maid’s conversations with an inmate on Rikers were recorded where it was learned that she was seeking to benefit financially from the arrest. Furthermore, allegations that the maid was “servicing” DSK voluntarily and has done so or has tried to to so with other customers recently came to light. If these claims were not enough, reports have further asserted that the maid had numerous accounts with significant deposits that could be tied to “improper” activities. Should have or could have prosecutors known this before heading into the Grand Jury? I do not know the answer, but this may only be the beginning of what appears to be an exoneration and vindication for DSK and a significant blemish for the fabled Manhattan District Attorney’s Office.
Assuming the case against DSK is dismissed, there are a few story lines that can be cobbled together from what would be a significant mistake. First, prosecutors should not rush into the Grand Jury. Barring an acquittal or an error such as this, indictments “last forever” and can reek havoc on one’s life, family and livelihood. Couple this with the “perp walk” of shame, an innocent man or woman can be maimed in every sense of the word. While DSK may or may not be a egotistical womanizer who cheated on his wife, because of this “perp walk” and indictment, he may forever wrongfully be labeled as some sex offender or “rapist.”
Having stated the above, it is easy to play Monday Morning Quarterback. While guilt and innocence are determined by a jury of our peers, we want prosecutors to make hard decisions. Not every case is “easy” with evidence and answers at their fingertips. Prosecutors have the functional equivalent of six days (to the minute) from an arrest to vote an indictment against a defendant who is in custody. There is immense pressure to gather, assess and present that evidence. For example, if an accused is arrested on a Tuesday at 9:00 am, the practical reality is that the Grand Jury must vote an indictment by that Friday at 5:00 pm (There would be no Grand Jury ready to vote an indictment at 9:00 am six days later on Monday morning). If the prosecution fails to do so, a violent criminal or sexual predator could be out on the street even if he or she could not post the bail. If there is no indictment the accused is released. The public outcry, in many cases correctly, would be deafening.
In terms of the DSK case, if the Grand Jury had not voted an indictment, Manhattan prosecutors risked DSK fleeing back to France where he would never return to face the allegations. In their eyes, a sexual predator would avoid responsibility for his acts. Could the Manhattan District Attorney’s Office have “forced” DSK’s attorneys to waive this speedy indictment right by withholding any potential offer? After all, in Queens, District Attorney Brown routinely demands all defendants – big or small – do this or his office refuses to make any offer (those threats are worthy for another day’s blog entry). Frankly, this tactic likely would have failed if it was ever addressed since DSK did not appear to personify a defendant looking to take a plea. Even assuming prosecutors could not force DSK to waive this time, were the parties agreeable to a bail package or was time taken to discuss the possibility of such in order to secure DSK in the United States? In short, outside of an indictment, was there a better method for DA Vance’s team to vet this case while keeping DSK in the United States? As much as I would have loved to have been a fly on the wall for those conversations, I was not, and, like all of you, can merely speculate.
While neither the defense nor the prosecution can jump back in time, mistakes, if they were in fact made, can be rectified within reason. Even Robert Morgenthau, an unparalleled attorney who was arguably the most ethical and skilled chief prosecutor in the history of New York State, made mistakes. Just look at his actions in the Central Park Jogger case years later. One cannot expect the prosecution to turn over every stone in a matter of days or predict how a witness or complainant may behave in the future, but it is incumbent upon them to ensure the integrity of the process. There should be no doubt that prosecutors want to do the “right thing,” but this experience will undoubtedly display how prosecutors have the power to wear the “white hat,” while also serving as judge, jury and executioner.
At bottom, I do not know if DSK is innocent or, alternatively, not guilty (they are not one in the same). What seems to be evolving, however, is that legally the case is weakening. Will prosecutors ultimately dismiss the case against him as it is being reported this morning? It seems reasonable, but again I certainly do not know. What is for sure, however, is the upcoming fireworks – lawsuits, political commentary and media soundbites – will be one heck of a spectacle.
Saland Law PC, a New York criminal defense firm representing the accused through the New York city region, was founded by two former Manhattan prosecutors. Criminal statutes, legal decisions and commentary on cases in the news can be found on the New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog) as well as the Saland Law PC website.
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