Many years ago, my client  was alleged to have possessed a “sharpened screw driver.”  It was repeated in nearly every press account, and became part of the myth of the case.  It was nonsense, but it was more real than reality itself because the media said so.  This experience taught me an important lesson about the media, about the power of oft-repeated myth.

In an  Eyewitness News report this morning on the arraignment on the indictment of Dominique Strauss-Kahn, a generally inconsequential event in a case where the defendant will plead not guilty and the case will be adjourned for discovery and motions, reporter Jamie Roth said:

His lawyers say evidence suggests his sexual act was consensual.

Except this never happened.  His lawyers said no such thing. Ever.

The best that can be said of this claim is that a statement was made that the defense is confident that the evidence will not prove that DSK engaged in nonconsensual sex with the hotel maid.  By focusing on the word “nonconsensual,” and attributing to it a meaning that suggests its inclusion is to distinguish it from consensual sex, one might speculate that it was a calculated statement to suggest that sex happened.

Or, it was a statement intended to proclaim that the charge of nonconsensual, the accusation, is false.  This would be a rather typical, innocuous statement, the sort that defense lawyers routinely make in order to appear firm in their client’s innocence without saying anything of consequence. 

The problem isn’t that Roth, as a reporter, can’t seize upon the word and make a story out of nothing.  That’s what the media does when there’s a fascinating case and nothing to really say about it.  They don’t really know what the DNA will show, or even whether it’s admissible at this point given the potential failings with collection and preservation.  And they have no clue what the defense will be, particularly since it’s unlikely that the defense knows what it will do.  There’s no reason to decide what the trial defense will be at this stage, with plenty of time and work still to be done.

Yet the myth is being established, and perpetuated.  The media is creating a defense in the mind of the public. 

Had Ben Brafman said such a thing, then it would be his fault and any expectations created by the myth would be his burden to address.  Ben is very experienced, both in criminal defense as well as dealing with the media in high profile cases.  The problem created by these media-created myths is that fighting them sets up the opposite claim, that the defense is DSK never had sex with the maid. 

At this stage of the game, in a case like this, the defense would be foolish to announce its strategy.  That’s the sort of thing a rookie or self-aggrandizing fool would do, grab the spotlight while the media still cares and milk it at the expense of the defendant.  There is plenty of time for evidence to be found and exploited, and keeping as many options open until one sees where the evidence leads is the only wise move.

This is why reporting such as Roth’s becomes so problematic.  And it’s not just the public perception, but others in the media who pay close attention to each other’s reporting so as not to “miss” anything and get skunked with a juicy bit of news.  No reporter wants to the last to report something sexy, and the DSK defense strategy is one of the two sexiest parts of the story.

The  New York Times reporting on the case makes an effort to note that such forays into the future are utter speculation.  And then engages in rank speculation all over the place, enjoying anonymous sources as well as lawyers all too happy to see their name in print spewing prognostications without basis.

“This is a case that’s going to trial,” a former prosecutor said, speaking on the condition of anonymity so as not to be seen as taking a side in the case. “You’re not going to offer him a plea that’s a nonjail disposition — Vance would look foolish if he did that. And the defendant, he’s got a perception of himself that doesn’t permit him to stand up and say, ‘I raped that woman.’ ”

Is this “former prosecutor” intimately familiar with DSK, so much so that he’s qualified to speak to his self-perception?  Not likely.

“You really have to attack the witness’s credibility” in sexual assault cases, a Manhattan defense lawyer, Jeffrey Lichtman, said. “While it may seem morally unseemly to the public, it’s legally appropriate and we have to do the best we can for our clients.”

He added: “You have to make this into a money thing at the end. Has she defaulted on loans or bounced checks?”

Or maybe there’s hard evidence that establishes a defense or disproves the prosecution’s allegations?  It’s likely that Lichtman’s comments were in response to a direct question about witness credibility, posed as a hypothetical but related as if it was his idea that this is what the defense strategy has to be.  It’s a neat little trick the media uses, printing the answer without mentioning the question.

The time will come when something happens for real, whether that be plea or trial.  The time will come when the defense will decide on its strategy, and that decision will likely not be etched in stone until they see what the prosecution has to offer.

In the meantime, the media will engage in wild, rampant speculation, making unfounded attribution and creating the myth of the case that will give the public the unwarranted belief that they know what “really” happened and what games the defense must play to disprove it.  When things don’t happen quite the way the media says it will, it won’t be the media that will suffer public ridicule for its unreliability, but the defense and the defendant for failing to live up to the media’s expectations.

As someone once said to me, there’s no appeal from the court of public opinion.