Opinion: Have We Learned From the DSK Affair?

Friday, July 01, 2011 - 11:26 AM

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.


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Comments [14]

D.S.K. from 71 Broadway, Manhattan

I ask you, Sir, where do I go to get my reputation as a skeezy, slimey, adulterous, misogynistic, lecherous creep back?!

Jul. 12 2011 04:11 PM
Fuva from Harlemworld

Jami's points about jurisprudence and protocol and caution are spot on. But the notion that recent so-called "revelations" make the accusation of rape incredible is way off...
What we have now is a RUSH TO JUDGMENT about the potential victim too, from an annoying uncritical media, from the criminal "justice" system and, apparently, from Jami too, all of whom know absolutely nothing about the reality of this poor unfavored immigrant -- a context in which a lot of these "revelations" are explainable if not excusable and in no way at all discount the possibility of rape under the circumstances.
Let's be clear: if she now has "credibility issues", well, SO DOES HE, with his past pathological behavior, his behavior immediately following his arrest in which he did NOT admit to having sex with her, etc.
Something he definitely is that she isn't is internationally powerful and wealthy. AND that he has brought these to bear on this case is a major reason why it MUST GO TO TRIAL, lest the implications for justice across socioeconomic divides and for poor rape victims be dire.
It's not clear to me how sex between this internationally socioeconomically powerful man and this poor immigrant "subordinate" could be anything less than opportunistic and exploitative under any circumstances. But the forensics support rape: scars, torn clothing, bruised genitalia. Otherwise, what, this young woman entered his room, encounters him and immediately got hot for his old, flabby a--??? The latter theory seems incredible to me and is unsupported by the bruised genitalia. But if it happened that way, it must be proven in court.
This really must go to trial.

Jul. 03 2011 05:31 PM
Sam from Bronx

What have we learned?

When a powerful man hooks up with an immigrant woman working for minimum wage, bad things will happen to both.

Jul. 03 2011 03:59 PM

Off topic, but why does the It's a Free Country Logo include an icon of press conformity? I refer, of course, to the saluting stenographer.

Jul. 03 2011 12:06 PM
Harrison Bergeron from Fair Lawn NJ

We have very little responsible news reporting in our society. Instead, we have an entertainment industry which is quite happy to satisfy our most base passions. Sex always gets our attention and is good, steady cash for the so-called "news media". Wiener, Lewinsky, McGreevy, etc..

Jul. 03 2011 11:54 AM
Gregg Morris

This is must reading for the students in my journalism ethics and news responsibility class.

Jul. 02 2011 07:18 PM
Marie from Brooklyn, of course!

What a preachy piece of garbage! Got tired of the "shoulds" and didn't even finish it. What are you, a schoolgirl trying to be "little miss perfect?" A person expects a lot more than that puerile exercise in finger-wagging from WNYC!

Jul. 02 2011 06:29 PM
Vic from .

"It's never over...
Until it's over."

"Strauss-Kahn for President" (?)

You never know.

Jul. 02 2011 04:38 PM

Unethical and Unprofessional Journalism Perpetrated Yet Again Here

WNYC and/or Jami Floyd have surreptitiously altered her post here, responding silently to the comment I posted yesterday (07.01 at 12:09), by replacing the prejudicial use of “victim” throughout with “accuser”, which is commendable, but leaving her original posting time (11:26 AM) while concealing any trace that the orginal post was altered, which cannot be acceptable journalism.

Because I only glanced quickly at Ms Floyd’s post yesterday, I do not know if other alterations have been made to it, but there’s no way to depend on the authenticity of any WNYC posts given this practice of surreptitious emendations. I urge WNYC to always maintain its original postings, warts and all, and to clearly indicate any subsequent corrections and why and when they were made.

I have no journalism credentials beyond reading Orwell, Murray Kempton, and the like, but isn’t it obvious to all that transparency, willingness to accept criticism openly, and refusal to succumb to temptation to hide mistakes are crucial elements of all decent journalism?

Jul. 02 2011 10:25 AM
guy catelli from America

i don't get the hand-wringing.

suppose someone were sexually assaulted. suppose that that someone had lied to get into our country in seeking a better life, and also had a friend in prison who sometimes sent money.

maybe, under these circumstances, a jury would find the victim's testimony insufficient to establish reasonable doubt, especially after being humiliated and berated on cross-examination by the wealthy perpetrator's high priced pitbull attorneys. so maybe, the prosecutors would drop the case.

but, does this mean the perpetrator is entitled to our sympathies? does this mean that as long as the perpetrator of a sexual assault chooses a victim who has lied on a government form and has a friend in prison, then the media is to blame for reporting the victim's complaint?

Jul. 02 2011 01:26 AM
Sherman L. Greene from Upper West Side

The "perp walk" is unjust, & should be eliminated for EVERYONE -- not just wealthy, prominent people like DSK & Wall Street hedge fund managers, but especially for poor people who don't have the resources to fight back.

As for the press learning a lesson from the DSK case, don't hold your breath. The press is utterly without shame or remorse. Do the names Richard Jewell, Wen Ho Lee, & Stephen Hatfill ring a bell?

Jul. 02 2011 01:11 AM

I guess the DA should stick to picking on poor minorities where nobodies lawyers actually fight back!

Jul. 01 2011 03:48 PM

I hope the press will do their due diligence and continue to chronicle what went wrong in this case. I think this analysis, while good, is not the end of this story.

Jul. 01 2011 01:20 PM

The prejudice of WNYC and of Ms Floyd in continuing to refer to the anonymous complainant as a victim is unprofessional and unethical.

Note that it continues to appear in the intro to Free Country blog, and that Ms Floyd used the term even at the end of her appearance on BL a few minutes ago.

Jul. 01 2011 12:09 PM

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