So New York prosecutors let the other shoe drop on Monday and asked a court to dismiss rape charges against Dominique Strauss-Kahn today. In and of itself, that is not remarkable. Prosecutors sometimes drop weak cases.
What's remarkable is how they made the request. Usually it's done orally or in a perfunctory manner — lots of jurisdictions have forms that are only one page long. Usually the prosecutor need offer nothing more than "the interests of justice" to support the motion. Judges routinely grant the motion without scrutiny of any sort.
But the Manhattan DA's office filed a twenty-five page motion to dismiss outlining, in great detail, why they believed that the complaining witness was not credible and why they no longer believed that they could prove their case beyond a reasonable doubt. The motion explains why the physical evidence was equivocal and how the alleged victim lied about prior rapes and repeatedly and materially changed her story about this alleged rape. Read it.
I've never seen anything remotely like this, either as a prosecutor or as a defense attorney. I don't practice in New York; perhaps it is some fluke of practice there, and it's not that unusual.
But I doubt it.
I suspect that the DA filed a twenty-five page analysis of how they lost confidence in the case for one reason: the prosecution is high-profile, and if they didn't offer elaborate justifications for their decision, they'd catch a huge ration of shit for it.
In predictable places, the DA's decision has provoked outrage. "Prosecutors trust* rich white man's account of totes not raping slutty brown foreign lady." "I guess it's always nice to see the wheels of justice and prosecutorial discretion working on behalf of obscenely wealthy white men." "Her "credibility" has absolutely nothing to do whether or not Diallo was raped. It's disgusting to me that the fact that she isn't a perfect victim means that the case won't be tried (not to mention that DSK's track record doesn't seem to be weighed as a threat to his perceived "credibility, either)."
The outrage illustrates something that I've often said here: to many people — perhaps even to most people — a criminal justice system is not about separating the factually guilty from the factually innocent. It's about delivering the result that matches their preconceptions and prejudices. That's true of people infuriated that Casey Anthony was acquitted. It's true of people who believe that "terrorists" don't deserve a trial because the fact that the government has accused them means they are a terrorist and that they have no right to one. And, as we saw in Duke Lacrosse case, it's true of some people who believe that an accusation of rape is inherently overwhelming proof of guilt.
Here the DA's critics rail at things that are fundamental to both the criminal and civil justice systems: the DA considered that the alleged victim made inconsistent statements! The DA considered that the alleged victim lied about a prior rape! The DA considered that the alleged victim had a financial motive in light of her civil suit! The DA considered that the alleged victim had suspicious transactions through her bank account from a drug-dealing boyfriend! The DA considered that the alleged victim repeatedly lied to the government in other contexts! But this is nonsense. Of course the DA considered these things. Any competent lawyer would, in both criminal and civil cases. Do you think that if someone sued my client for a car crash, and I could prove they had lied about a prior car crash case, I wouldn't do my best to use that to discredit them? Do you think if my client was accused of assault or securities fraud or DUI or any other crime, and the complaining witness had lied repeatedly on taxes and other government documents under oath, I wouldn't try to use it? It would be rank malpractice not to. Yes, in the past law and custom have allowed rape defenses to inquire into irrelevancies. But rape shield laws prevent that now. And a witness' track record of lying — particularly lying under oath — is rarely an irrelevancy, especially when it is lies about the same subject matter. Yes, a liar can be a rape victim — but a liar can also be a false accuser, and a witness' record of lying is essential to evaluating their credibility. To pretend that this is some special maltreatment of rape victims is fatuous nonsense.
So, critics are ignoring that all sorts of complaining witnesses have their veracity and character attacked all the time. But on the other hand, critics have a point — prosecutors do not reliably drop charges just because rational people would question the veracity of their star witness. In fact, prosecutors press doggedly on with awful, incredible witnesses all the time. Here the DA's motion emphasizes the "he said, she said" nature of the proof of lack of consent and force. But prosecutors rely on "he said, she said" evidence every day. This is especially true when the prosecutor's witness is a cop — we are expected to believe that the cop's testimony (like, in some minds, a rape accuser's testimony) has inherent unimpeachable credibility. That is, of course, a ludicrous proposition to anyone who follows how cops actually operate. In short, the scruples about questionable evidence in this instance is in too short supply in most other instances.
Is part of this about rape? Yes, I think so. I think that some prosecutors, for cultural reasons, are more likely to doubt "he said, she said" evidence in the context of rape than they are in the context of, say, robbery, or assault, or contempt of cop. But that doesn't mean that I think their doubt is wrong, or unreasonable, in the rape cases. It would be more reasonable if they allowed themselves the same doubt in other cases as well. Rather, I think that the culture — both of America, and of prosecutors' offices — allows them to express that doubt in ways that would not be acceptable in other cases. Is that an injustice? Well, if it's an injustice to some rape victims, it's equally an injustice to the defendants in other cases that don't enjoy that benefit of the doubt. It's offensive to say, in effect, "the government ought to keep prosecuting that accused rapist despite grave doubts about the case, because they keep prosecuting accused robbers and killers and fraudsters despite grave doubts about their cases."
But in Strauss-Kahn's case, as I said, I think the issue is fame. The DA believes — very likely reasonably — that it can't prevail in light of the alleged victim's credibility problems. The DA wants out — but as a matter of publicity and diplomacy, he can't get out without spelling out the problems with the case. Hence the amazing memo. Are the problems with the case put in the worst possible light to justify the decision? Perhaps. Pity that such light isn't shone on many other complaining witnesses in other types of cases.
The critical narrative holds that this case shows that the rich and the powerful are above the law. I'm not so sure. I don't believe the DA took this route because he was afraid to prosecute a rich and powerful man, or as a favor to rich and powerful forces behind the curtain. But there's no doubt that money and power get you a vastly better chance of this result. They get it because rich and powerful people can field a team of lawyers and investigators to find problems with the case. Those problems are often there — but usually the defendants don't have the money to hire teams of people to find them. The rich and the powerful draw media attention, which leads to people coming forward with information that might not otherwise come out. Sometimes this hurts the defense, but just as often it yields critical impeachment evidence about prosecution witnesses. Perversely, this case shows how wealth and power and lead prosecutors to discover flaws in their own case. Most rape cases wouldn't get anywhere near the police and prosecutorial scrutiny that this one did. But the police and the DA knew they were under the spotlight, and knew that Strauss-Kahn could field a serious team, and devoted vast resources to the case — resources that revealed issues that might never have been discovered in a rape case against the poor and the obscure.
Why decry the quality of justice that the rich and powerful get, when we could decry the level of justice that the poor get? The justice that the rich and powerful get illustrates how the system can meticulously test the adequacy of evidence against an accused. Why not try to raise every defendant closer to that level, rather than suggest that we ought to tear down the adequate justice available to the few? Believe me, the government loves that narrative — loves it when people view a vigorous and thorough defense as some sort of scam to be scorned. Resentment of the justice that Strauss-Kahn can afford is the government's weapon, which it wields to get you to accept steadily less and less justice in every other case.
In short, I think the decision to dismiss the charges here is the right one, in light of the very serious problems laid out in the motion — and that belief is not contradicted by the fact that the same level of prosecutorial scrutiny ought to be brought to bear much more often.
One last issue. The motion is notable not just for its level of detail. It is notable because of what it suggests about the ethical standard that prosecutors ought to follow. In some places in the motion, the DA suggests that he's dismissing the case because he believes that it's not possible to prove the case to a jury beyond a reasonable doubt. That's a sensible standard. But in other places, the DA suggests that he's dismissing it because the prosecutors themselves don't believe Strauss-Kahn's guilt beyond a reasonable doubt: "If we do not believe her beyond a reasonable doubt, we cannot ask a jury to do so."
This is a terribly controversial statement in prosecutorial circles. Neither the ABA's Model Rules nor New York's ethical rules requires a prosecutor to believe the defendant's guilt beyond a reasonable doubt; rather, they prohibit prosecution absent probable cause. The proposition that prosecutors ought not proceed if they don't personally believe in a defendant's guilt beyond a reasonable doubt is oft debated, but I submit that there is nothing approaching a mainstream consensus in favor of such a standard in the legal community as a whole, let alone among prosecutors. As a standard, it is probably both unworkable and (given the culture of prosecutorial agencies) pointless. Critics will probably see this odd discrepancy as further evidence of "rape culture" and bias against rape victims. I see it more as an illustration of how desparate the DA is to justify an unpopular but reasonable and ethical decision.
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