An Accuser Takes to the Airwaves

Accusers of rape, ordinarily referred to by politically correct society as victims, are usually unidentified to protect them from attack, humiliation and inspection.  But when the New York County District Attorney’s office conceded that the accuser of Dominique Strauss-Kahn was not credible, after the bizarrely harsh treatment afforded DSK by  the media and the court, no one  referred to her as victim anymore.

Nafissatou Diallo decided not to slink away.  Instead, she went on the attack.  In an unprecedented interview in Newsweek, she tells her story. she tells a graphic story of what happened in the Sofitel room.  She avoids discussion of things that don’t help her cause.  The story is unchallenged, which doesn’t make it false.  Just untested.

Via TalkLeft, the  defense responds to the three hour interview conducted in her lawyer’s office.

Ms. Diallo is the first accuser in history to conduct a media campaign to persuade a prosecutor to pursue charges against a person from whom she wants money. Her lawyers and public relations consultants have orchestrated an unprecedented number of media events and rallies to bring pressure on the prosecutors in this case after she had to admit her extraordinary efforts to mislead them. Her lawyers know that her claim for money suffers a fatal blow when the criminal charges are dismissed, as they must be.

This conduct by lawyers is unprofessional and it violates fundamental rules of professional conduct for lawyers. Its obvious purpose is to inflame public opinion against a defendant in a pending criminal case. The fact is, however, that the number of rallies, press conferences, and media events they have orchestrated is exceeded only by the number of lies and misstatements she has made to law enforcement, friends, medical professionals and reporters. It is time for this unseemly circus to stop.

It’s often said that we don’t try cases in the media.  It’s not quite true.  We try cases wherever we can aid our cause, and this putative axiom came about because we can’t control the media and don’t trust it.  Since defendants are presumed guilty, the media tends not to be kind to them, and any effort to work with the media usually comes back to bite the defense in the butt.

What makes this particularly unusual is that this isn’t happening upon the media’s initiative, but at the hand of Diallo’s lawyer, Kenneth Thompson.  As Jeralyn Merritt points out, the strategy is less than kosher.

The only excuse I can fathom for this kind of behavior is if the accuser’s lawyer knows something we don’t know: that DA [Cyrus] Vance has already decided to drop the charges against Dominique Strauss-Kahn. Otherwise, this interview violates every ethical rule in the book. As the Supreme Court said in Shephard v. Maxwell:

Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures.

….Few, if any, interests under the Constitution are more fundamental than the right to a fair trial by ‘impartial’ jurors, and an outcome affected by extrajudicial statements would violate that fundamental right. Even if a fair trial can ultimately be ensured through voir dire, change of venue, or some other device, these measures entail serious costs to the system.

If Vance doesn’t join in a defense motion to prevent this accuser from publicly claiming DSK is guilty and publicizing her version of the details of the encounter, I hope the judge steps in on his own. “As the Supreme Court has said, legal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper.” (Bridges v. California, 314 U.S. 252, 271)(1941).

Whether the motive is to prejudice the jury pool, influence public pressure to compel Cy to prosecute, rehabilitate Diallo’s reputation in the hope of a settlement or money judgment or keep the attention alive isn’t as clear to me, but the issue of the perverse relationship between lawyers and the press remains.

Certainly the media won’t shoulder any blame for using whatever fodder it’s offered.  Isn’t that the point of a free press, to disseminate whatever news people find interesting?  It’s not the media’s job to concern itself with the accuracy or truthfulness of what a person says. That they say it is enough to publish it.  It’s wrong but true. The media enables the sickness, and they know it, but they have airtime to fill and eyeballs to capture, and they will do whatever they have to do.

It comes down to the lawyers, then, to conduct themselves properly, to neither use nor be used by the media to undermine the integrity of the legal system, regardless of motive.  Unfortunately, lawyers suck at it.  We weren’t very good about it before, and we’re becoming increasingly bad at it.  Like the idiots who engage in conduct likely to kill them, videotaping it for upload to Youtube in the hope of it going viral and turning them into overnight stars, lawyers desperate for attention ignore all ethical precepts in the hope of getting on air.

This disease has reached epidemic proportions. 

There’s been much talk of legal ethics lately, with lawyers playing the media for their own benefit.  What’s become painfully clear is that lawyers don’t care, and the public doesn’t know. 

It used to be enough for a lawyer to have a full calendar and be respected by his peers.  The silent telephone was a problem, as lawyers turned to increasingly less savory ways to get business and fill up those empty daytime hours.  The respect of their peers was replaced by the adoration of media prominence.  See how many lawyers twit about their television appearances or speaking engagements to let others know of their importance.  It offers no insight as to their competence, but fame has become the most important metric.

As the response issues by Bill Taylor and Ben Brafman says, “it’s time for this unseemly circus to stop.”  It’s up to us lawyers.  Can we resist the lure of potential celebrity?  Or are ethics some archaic nicety to be enjoyed only by those who have already made it, and to be ignored by those who desperately need their 15 minutes of fame?