The case against Dominique Strauss-Kahn is crumbling, even before it really got underway. The accuser, it seems, not only lacks the credibility to proceed, the allegations themselves appear to be caught up in misstatements and untruths.
So, what are the lessons of what will undoubtedly come to be known as The Strauss-Kahn Affair?
First and foremost, prosecutors must stop stepping to the podium to bolster their cases even before the grand jury hands down an indictment.
In this case, Manhattan DA Cy Vance was quick to pounce after the indictment was filed. And let us not forget the now infamous perp-walk, which generated so much controversy in Strauss-Kahn's native France.
A good prosecutor should be interested in the pursuit of justice, as ascertained in a court of law. He or she should be willing to examine the facts in light of the ultimate truth of the case, irrespective of the public pressures, the high-profile nature of the case or his own political future. And most of all, he should not seek to try his case in the court of public opinion. To the extent he seeks to unduly influence the public, he also pollutes the potential jury pool, thereby undermining a defendant’s right to a fair trial.
These tenets are especially true in rape and sexual assault cases, where the charges are explosive, the accuser is unknown to us (a self-imposed media rule) and the ultimate truth of the case can come down to the accuser’s word against that of the accused.
Take the Duke Lacrosse case, in which the district attorney of Durham County, NC, Mike Nifong, failed every measure of prosecutorial conduct and judgment. He tried his case in the media for nearly a year, failed to turn over exculpatory evidence to the defense and court even when he had it, and he was ultimately disbarred, fined and sentenced to a symbolic one day in jail.
In the DSK case, Vance is to be credited for his due diligence and coming to terms early on with the impossibility of proceeding with a accuser lacking credibility. At the same time, he and his investigators had to know what they were up against - a fully financed defense, with its own top-notch investigators that would no doubt uncover the same damning information about the accuser.
Vance also made the fatal error of issuing public statements on the case long before any public comment was called for - indeed, before he could possibly have mastered all of the facts and evidence - on the day of the indictment. On the courthouse steps (with the world watching, I might add) he characterized the charges as "extremely serious" and said the "evidence supports the commission of nonconsensual forced sexual acts." Statements like these, made not only to the press but also to the pool of potential jurors, serve only to undermine the presumption of innocence.
Which brings me to my other profession, the news business. I am reminded all the time - especially by my friends in cable news - that we are not required (unlike juries) to maintain a presumption of innocence throughout our coverage of a trial. Maybe so, but neither should we assist the prosecution in their efforts to convict a defendant before the first witness has been sworn.
News organizations that spent so much time on DSK and his deviant sexual sexual predilections - coverage which cost him his seat as chair of the IMF and derailed his politic future - have an obligation to cover the story with the same breathless urgency, now that it is likely to be dismissed. But will we? I rather doubt it.
As a former criminal defense attorney and the host of "The Best Defense" on Court TV for five years, I see our coverage of this case as emblematic of the rush to judgment typical in all high-pofile criminal cases, especially when there is a hint of sexuality. We see it right now in the over-the-top coverage of Casey Anthony's trial down in Florida. Dubbed the Tot-Mom, she was convicted in the media years before her case ever saw the inside of a courtroom, largely because she engaged in "conduct unbecoming for a grieving mother." She is facing a possible death sentence.
Other recent examples include Michael Jackson's circus-like trial on allegations of sexual assault (he was acquitted) and the impeachment trial of President Clinton.
In fact, the phenomena of trials as infotainment goes back at least as far as the heyday of the great tabloids and the rape and manslaughter trials of film legend Fatty Arbuckle. He was acquitted only after three trials, and history has proved that the charges against him were, at least in part, trumped up to sell papers.
Even in the modern era of objective news gathering, when it comes to crime reporting, too many journalists are eager to report and reprint the facts as fed to us by law enforcement and prosecutors; and we are understandably reticent to question the story of the accuser, for fear of being labelled insensitive, sexist or worse.
It is not only the 24/7 cable cycle that is to blame; in this case, The Old Gray Lady and the foreign press got into the act. Perhaps the unraveling of this case will give us all cause to pause before the next one comes down the pipeline.
As for Dominique Strauss-Kahn, he will likely be realeased on his own recognizance within hours. His lawyers will file a motion for dismissal. DA Vance try to salvage the case. But I predict it will be dismissed well before Labor Day.
Jami Floyd is an attorney, broadcast journalist and legal analyst for cable and network news, and is a frequent contributor to WNYC Radio. She is former advisor in the Clinton administration and served as a surrogate for the Obama campaign on legal and domestic policy issues. You can follow her on twitter.