(Adds meeting with prosecutors tomorrow in sixth paragraph.)
Aug. 21 (Bloomberg) -- Manhattan District Attorney Cyrus Vance Jr. will ask a judge to dismiss sexual-assault charges against Dominique Strauss-Kahn because they’d be difficult to prove beyond a reasonable doubt, former prosecutors predict.
Strauss-Kahn, who resigned as chief of the International Monetary Fund after being arrested and charged with sexual assault and attempted rape in an alleged May 14 attack on a housekeeper in his Manhattan hotel suite, will be back in state court Aug. 23 for a status hearing on his case.
Strauss-Kahn, 62, a onetime French presidential hopeful, was released from home confinement on July 1 after prosecutors told the judge in charge of the case that “substantial credibility issues,” caused by the housekeeper’s lies, had hurt their case. His $1 million bail and $5 million bond were returned and his house arrest was ended.
Prosecutors were told in June by Strauss-Kahn’s accuser, Nafissatou Diallo, 32, that she had lied about a gang rape in Guinea before she sought political asylum in the U.S., and she changed her story about what she did right after the alleged attack. Before that, police said, Diallo, 32, a political refugee from Guinea, had given a credible account of the incident, and they found forensic evidence supporting her allegation.
“At the end of the day, what happened in that hotel room - - specifically, whether a crime was committed -- comes down to what she says and, therefore, her credibility is paramount,” said Thomas Curran, a former Manhattan Assistant District Attorney who is now at Peckar & Abramson in New York. “If that credibility is called into question in a fundamental way, the DA may find that they simply can’t prove their case beyond a reasonable doubt.”
Diallo may find out Strauss-Kahn’s fate as early as tomorrow. Her lawyer Kenneth Thompson told the New York Times yesterday that prosecutors invited him and Diallo to a meeting to preview the Aug. 23 hearing. Thompson said he interpreted the invitation, sent by letter, to mean Vance will drop some or all of the charges. Thompson didn’t immediately return a call or e- mail today seeking comment on the invitation.
Whatever Vance, 57, does, Curran said that those who call for him to let a jury decide any ambiguity are misguided.
“Prosecutors are not unfettered in their advocacy,” he said. “If they don’t believe their case beyond a reasonable doubt, they have an obligation to step back.”
New York attorney Paul Callan is a former prosecutor who said the consensus among his colleagues was that Vance would move to dismiss. He said in a case in which a prosecutor decides, based on newly discovered information, that he’s got severe problems with his case and that a jury would not convict, a prosecutor would make a recommendation of dismissal.
The motion could be an oral application before the court, or a detailed written submission, specifying on the record why a dismissal is warranted and would likely say the evidence is not sufficient to prove guilt beyond a reasonable doubt.
“I don’t think Vance is going to say Strauss-Kahn is innocent,” said Callan, noting a minority of his colleagues predict Vance will pursue the case.
Michael Obus, the judge in charge of the case, could dismiss the case from the bench, Callan said.
Benjamin Brafman, Strauss-Kahn’s lawyer, said after the July 1 hearing at which Diallo’s lies were disclosed that he thought all of the charges would eventually be dismissed.
“We believed from the beginning that this case was not what it appeared to be,” he said.
Brafman declined to comment on whether the case might be dismissed at the hearing next week or later.
“The fact of a sexual encounter was and is corroborated by forensic evidence, and the very brief time period inside the hotel suite strongly suggested something other than a consensual act,” prosecutor Joan Illuzzi-Orbon said at the July 1 hearing.
Vance said after the session that he would investigate both sides in deciding what to do in light of the lies and the evidence. Vance’s spokeswoman, Erin Duggan, declined to say whether any charges would be dismissed and didn’t return a call or e-mail today to comment on the pre-hearing meeting tomorrow.
French officials and intellectuals called Vance’s handling of the case a rush to judgment. Former Culture Minister Jacques Lang called Strauss-Kahn’s arrest and charging “a lynching.” French philosopher Bernard-Henri Levy said Vance, the son of a former U.S. secretary of state, had destroyed Strauss-Kahn’s presumption of innocence.
Thompson issued a series of public statements and interviews, starting the day of Struss-Kahn’s release, to argue that no lie his client had told undercut her allegation that she had been sexually attacked. He said the evidence supporting her claims includes hospital photos of a vaginal bruise he said she suffered when Strauss-Kahn grabbed her. The forensic evidence, he said, is consistent with her account that she spit out semen as she fled the room after forced oral sex and that her stockings were ripped during the alleged attack.
Thompson, 45, said Diallo would not be the first victim of an attack to fabricate something. A former assistant U.S. Attorney in Brooklyn, Thompson gave the opening argument in the city’s most infamous police brutality case. It involved Abner Louima, a Haitian immigrant, who was sodomized with a wooden stick inside a police station house.
Louima claimed police officers had said, “It’s Giuliani time!” as one shoved the stick up his rectum in 1997. The inference was that such conduct was acceptable during the anti- crime administration of then-Republican Mayor Rudolph Giuliani compared with his Democratic predecessor David Dinkins. Louima later admitted police hadn’t said that.
Didn’t Tell Truth
“Abner Louima didn’t tell the complete truth,” Thompson said. “We didn’t abandon him because the evidence showed that he was sodomized in the bathroom of the 70th precinct in Brooklyn. We took that case to trial, and the jury still convicted.”
Zachary Carter, U.S. Attorney in Brooklyn during the Louima case, said Thompson’s comparison to the Louima case was relevant.
“Ken has personal experience with a very difficult trial that pivots around a witness who -- we had to concede and I had to announce -- had lied.”
In the Louima case, the evidence showed the victim had been ripped apart internally, Carter said.
“You knew something had happened to him, but who did it was difficult to piece together,” he said
In the Strauss-Kahn case, the physical evidence may not prove more than a sexual act took place, Curran said.
“The physical evidence alone is not dispositive one way or the other,” Curran said. “It’s merely ‘helpful,’ particularly if it corroborates the statements.”
Exactly Right Thing
Vance did “exactly the right thing” in disclosing the accuser’s lies to the defense and the judge in charge of the case last month, Carter said.
“But that doesn’t determine whether the prosecution should go forward,” he said.
One critical decision for Vance is whether his main witness’s credibility has become so damaged with her admitted lies that no jury will decide that Strauss-Kahn, who has pleaded not guilty, is guilty beyond a reasonable doubt.
Those lies include declaring a friend’s child as a dependent on her tax returns. She also said she misrepresented her income in order to maintain her housing, prosecutors told defense lawyers.
Prosecutors also disclosed that she had changed her story during the questioning on June 28th about what happened immediately after the incident in the Sofitel on West 44th Street, where the alleged attack occurred.
Grand Jury Testimony
Diallo told the grand jury she had fled to a main hallway after the attack, then later said she went to clean a nearby room before returning to Strauss-Kahn’s suite -- all before reporting the incident, according to a letter prosecutors sent Strauss- Kahn lawyers.
Diallo, whose identity was initially withheld, went public with her case in magazine and television interviews and then sued Strauss-Kahn this month, seeking unspecified damages.
She also had to deal with a New York Times report that quoted her as saying, according to a translation summary of her native Fulani, to a friend imprisoned in Arizona on drug charges: “Don’t worry. This guy has money. I know what I’m doing.”
After Diallo, Thompson and prosecutors listened to the taped conversation in its original on July 27, Thompson told reporters her comments had been “merged together” and mischaracterized.
Thompson has gone on the offensive ever since the July 1 hearing about her credibility.
“The victim from Day One has described a violent sexual assault that Dominique Strauss-Kahn committed against her,” Thompson told reporters as Strauss-Kahn was being released. “And she never once changed a single thing about that account.”
He asked Vance in a July 6 letter to recuse himself from the case, accusing prosecutors of “repeated and damaging leaks to the media” that undermined the case. He sued News Corp.’s New York Post unit on Diallo’s behalf after it published a story saying that she was a prostitute.
After first calling such tactics “lunacy” because they might provide the defense with statements Strauss-Kahn could use against Diallo, New York lawyer Ed Hayes reconsidered and said Thompson may have had no choice.
“What he did under the current circumstances drew attention to the case, put it under racial and class circumstances and brought a lawsuit at a time it hurts the criminal case because it may be the only time he thought he could do it,” Hayes said.
Thompson may have hurt the criminal case because he already thought “it was a goner,” Hayes said.
Thompson’s tactics have created a tension between him and prosecutors, several defense lawyers said.
“There’s clearly been a parting of the ways between the complaining witness and the district attorney’s office,” Curran said.
In highlighting a possible further strain between the two camps, the Wall Street Journal reported yesterday that New York prosecutors were investigating whether Thompson said in June that he would derail the criminal case if he came to terms with Strauss-Kahn in a civil settlement.
“The allegation against me is absolutely false,” Thompson said in an e-mail. “It’s another baseless attack against Ms. Diallo and her attorneys and designed to distract people from the fact that Dominique Strauss-Kahn violently attacked and sexually assaulted an innocent woman inside that hotel room.”
The case is People v. Strauss-Kahn, 11-02526, New York State Supreme Court, New York County (Manhattan).
--With assistance from Patricia Hurtado in New York. Editors: Patrick Oster, Peter Blumberg.
To contact the reporter on this story: Karen Freifeld in state supreme court in Manhattan at email@example.com.
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