The arrest and prosecution of Dominique Strauss-Kahn didn’t begin in a typical fashion, and surely isn’t ending that way.  Having whisked him off a plane to France, the New York County District Attorney’s office had a hot potato on their hands.  DSK was exceptionally wealthy, politically huge as potential president of France and about to leave the jurisdiction so that they would appear to have let a rapist slip through their clutches.

Every decision in the early hours of the case had the potential to explode in the prosecution’s face. 

The rush to indict was a product of New York’s law, CPL §180.80, requiring the release without bail of a defendant charged with the felony but unindicted after 144 hours. Had they not indicted and DSK hopped the next AirFrance to Charles De Gaulle, the failure would have tantamount to complete incompetence.  That wouldn’t have played out well.

Even in the  first 48 hours of this case, there was an odd odor emitting from the shifting narrative.  The “facts” relied upon in support of the “compelling” evidence of guilt would appear and disappear without explanation, or, for the matter, any critical scrutiny.  But then, that’s the nature of rape allegations, which are sacrosanct in the hierarchy of debatable crime.  Not until something explodes can they be questioned or doubted.

DSK’s subsequent release, on extraordinary bond conditions, by Judge Michael Obus was fortuitous for all involved, and reflected one exceptionally good decision and one extremely fortuitous event.  The decision was to retain Ben Brafman, an honest-to-God criminal defense lawyer rather than a Biglaw former AUSA poseur whose skillset is knowing all the shortcuts to race to the prosecutor’s office. 

The combination of Brafman and an unlimited budget for defense investigation was not merely a huge benefit to DSK, but a matter of enormous concern for the prosecution.  If there was anything to be found that would undermine their case, the defense would find it and exploit it.  For those who harbor the inexplicable belief that the defense would somehow be wrong or disingenuous by using every bit of evidence available, that’s exactly what it’s supposed to do.  And exactly what the prosecution would have done as well.  This is war, not tea.

The fortuitous event was that the indictment was wheeled to Judge Obus, and bond was set for DSK’s release.  It was monumentally high bond, with extreme terms, but still it got him off the Rock, and that gave everyone some breathing room and the ability to spend time on other aspects of the case.  Had the case gone to another judge, this might not have been the case.

A third occurrence, which grew from an entirely external source, that influenced what would subsequently transpire, came from the effort’s of DSK’s accuser’s lawyer.  Normally, victims don’t need an attorney.  Nafissatou Diallo, the Sofitel maid who claimed rape, retained Kenneth Thompson, who seized his moment in the limelight and spent more time talking up the case to the media than helping his client conform her story to the truth.

As it turned out. Diallo’s credibility was slightly below a turd, and the more she talked and investigators dug, the worse it got.  The point is made that even liars can be raped, certainly true.  But liars make bad witnesses, and the nature of the proof of rape is largely dependant on believing the alleged victim’s story.  There was physical evidence, semen, but that doesn’t make it a rape.  And Diallo’s was wide open to all manner of motives to lie.

The prosecution was again confronted with a host of unpleasant choices.  Their star witness was anything but.  The world was focused on this case, making it not merely a local or even national high profile case, but one with international implications.  The defense had the ability and capacity to slice and dice this case.  The prosecution had no good options available to it, assuming that dismissing a case to which they were so deeply committed couldn’t be called a good option.

Was it different because DSK was wealthy and prominent?  Of course, and from a multitude of angles. Had he not been wealthy, his ability to mount a devastating defense would have been called into question, and the equation would have been different.  Had he not been prominent, the country and world wouldn’t have been watching, and scrutinizing what it watched.  Losing at trial isn’t the biggest deal provided no one is watching.  Losing when everyone is watching, and then being exposed to criticism for having pursued a case with such dubious proof is another matter.

That it shouldn’t work quite this way makes for a nice fairy tale, but fairy tales don’t often come true.  Every case should get the defense DSK got, but they don’t. Every case should be investigated as deeply as this one, but resources are scarce and are sometimes dedicated on a media triage basis.  The life of every defendant should receive the same concern as DSK’s.  This costs nothing to do. There’s no legitimate excuse for the fact that such serious thought is only exercised in the rarest of instances. 

The prosecution filed a 25 page  motion to dismiss the indictment.  Ken at Popehat surmises that this isn’t the way it usually happens, and he’s quite right.  The normal course is an oral application, granted immediately with a smile.  This document isn’t really a motion, but a press release, an explanation of the decision for the benefit of others. 

The big question is whether this prosecutorial fiasco teaches any lessons from which we can draw conclusions about our legal system.  Each of us will take from this case whatever supports our religion, our desire to find support for our preconceived notions of the system.  There’s enough in this case to satisfy every perspective, and enough to allow us to argue that no other perspective could possibly be correct.

Rape victims will hate New York County District Attorney Cy Vance for refusing to believe Diallo and prosecuting this heinous rapist.  The wrongfully convicted will applaud the result, but harbor deep resentment that they, lacking the wealth and prominence of a DSK, didn’t receive anything close to similar scrutiny.

Those who believe that the wealthy receive a better brand of “justice” than the rest of us will use this as proof of their proposition, though they forget that had it not been DSK, the defendant would have been given substantially lower bail in the first place, and likely not have been arrested before his plane took off.  They also forget that the wealthy and prominent are as likely to be treated more harshly as they are more leniently. But it’s certainly true that they are not treated the same.

Law and order supporters will rationalize how difficult the job of prosecutor is, and how they are caught between a countervailing forces outside their control, having to make a choice between bad and worse decisions.  Sometimes this is true, though let’s not ignore that they, at least, have a choice, which can’t be said of the defendant.

And then there are defense lawyers, like me, who will see this as another example of a horribly imperfect system, one upon which lives are at stake, that just happened to work out well this time for an array of reasons
that are unlikely to happen in our cases and will change nothing for the defendant arrested tomorrow.