Dominique Strauss-Kahn's Hotel Maid Accuser Goes Public

Update: Newsweek has an interview The Maid's Tale, with the DSK accuser, Nafissatou Diallo.

Time for a gag order immediately in the Dominque Strauss-Kahn case. The hotel maid accusing him is going public, embarking on a media tour, starting with ABC News: GMA on Monday and Nightline on Tuesday.

In an exclusive television interview, ABC News' Robin Roberts speaks with the hotel employee who alleges she was sexually assaulted by former International Monetary Fund Chief Dominique Strauss-Kahn.

For the first time viewers will hear, in her own words, her version of the events that allegedly took place at the Sofitel Hotel in New York in May. ...The interview airs on Tuesday, July 26 on "Nightline."

ABC shows a picture of the accuser, but still doesn't mention her name? How absurd. I hope Ben Brafman is spending today drafting a Motion to Ban Extra-Judicial Comments by Trial Participants. This case needs an order like the one entered in the Kobe Bryant case: [More...]

It is a fundamental constitutional principle that the Defendant is entitled to a fair trial by impartial jurors. Extrajudicial statements, which are substantially likely to directly or indirectly interfere with that right, may constitutionally be prohibited.

....this Court is compelled to intervene and prevent the substantial prejudice to the fairness of the trial that will result should the current pattern of advocacy continue.

Among the restrictions:

....None of the lawyers, law enforcement agency or officers who are participating or who have participated in the investigation or litigation of this matter, the alleged victim , Defendant and witnesses shall not make an extrajudicial statement which a reasonable person would expect to be disseminated by any means of public communication, which relate to the following: (1) the character, credibility, reputation or criminal record of any party or witness; (2) the expected testimony of a party or witness; (3) the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person’s refusal or failure to make a statement; (4) the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented; (5) any opinion as to the guilt or innocence of Defendant, or the ultimate issue of fact to be determined by a jury; (6) the merits of the case and the merits of the evidence in the case; (7) information that has been ruled to be or is likely to be inadmissible as evidence in a trial; and (8) opinion as to the fairness of the proceedings or the existence or nonexistence of prejudice as to a party or witness.

If this interview goes forward, DA Cy Vance should respond by dismissing the charges against Strauss-Kahn, on the ground that the accuser's actions have poisoned the potential jury pool preventing him from getting a fair trial.

Unless, of course, the accuser is only coming forward because Vance has already told her lawyer he's dropping the charges and this is her attempt at self-rehabilitation and payback. Unless that's the case, shame on ABC for broadcasting this. As usual, the media is willing to line its own pockets at the expense of an accused. Guilt sells in America, but we all don't have to be complicit in buying. I won't be watching GMA Monday or Nightline Tuesday.

< What Obama Should Be Saying | Dominique Strauss-Kahn's Lawyers Response to Accuser's Interviews >
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    to put it another way: (5.00 / 1) (#3)
    by cpinva on Sun Jul 24, 2011 at 06:09:46 PM EST
    it was quite alright for the DA's to publicly release what appears to be damaging information about ms. diallo, but, horror of horrors, how dare ms. diallo publicly defend herself!

    sorry jeralyn, major league fail there.

    she's not defending herself (none / 0) (#5)
    by Jeralyn on Sun Jul 24, 2011 at 06:16:28 PM EST
    she's telling her version of what happened and insisting he is guilty. If the defense files a motion, the court will grant it.

    I cannot imagine she'd be doing this (5.00 / 1) (#7)
    by Peter G on Sun Jul 24, 2011 at 07:23:13 PM EST
    unless -- as you suggest at the end of your comment, TL -- the DA has advised her (and her lawyer) that the criminal case is over.  No way would a complaining witness be allowed to generate cross-examination material in this manner otherwise.

    "[B]e allowed"? Prosecutor would (none / 0) (#11)
    by oculus on Sun Jul 24, 2011 at 11:09:28 PM EST
    prefer potential witnesses not speak to the press, but have no power to force them not to do so.  

    they could join in a motion (none / 0) (#18)
    by Jeralyn on Mon Jul 25, 2011 at 03:36:01 AM EST
    filed by DSK to prohibit prejudicial extrajudicial comments by participants in the trial process including witnesses and their lawyers. It's ruining the state's opportunity to a fair trial as well, by providing more fodder for cross-examination.

    The prosecutors may have no lawful authority (none / 0) (#19)
    by Peter G on Mon Jul 25, 2011 at 08:57:25 AM EST
    to silence the complainant, absent a court order of the kind that Jeralyn is highlighting, but they certainly do have the "power," as you put it.

    Duct tape? Isolation room w/no phone (none / 0) (#22)
    by oculus on Mon Jul 25, 2011 at 11:08:15 AM EST
    calls, etc.?

    It is hard for me to feel (5.00 / 1) (#23)
    by Militarytracy on Mon Jul 25, 2011 at 11:09:21 AM EST
    sorry for DSK, he is the one who hired the smear artists that came after her and "leaked" different trumped up stories and untrue stories about her to the press.  Now she has to defend herself.  I'm assuming that it is why it is being permitted too.  It was the DSK team that turned this into a circus to begin with.

    Guilt sells; Guilt+Sex is a best-seller (none / 0) (#1)
    by cymro on Sun Jul 24, 2011 at 04:23:57 PM EST
    We are continually bombarded by irrelevant and sensationalist media coverage. Your sane and sensible reporting is such a welcome contrast, Jeralyn.

    Accusers Have Free Speech Rights (none / 0) (#2)
    by Michael Masinter on Sun Jul 24, 2011 at 05:28:41 PM EST
    Ms. Diallo has a first amendment right to speak; Mr. Strauss-Kahn has a fourteenth amendment right to a fair trial before an impartial jury.  The latter right is not a universal solvent for the former right; the court cannot gag a nonparty absent proof that there is no less restrictive means by which to ensure a fair trial for Mr. Strauss-Kahn.  We don't generally gag people who file criminal complaints; why should those who claim to be rape victims be treated differently?

    why don't you read the order (none / 0) (#4)
    by Jeralyn on Sun Jul 24, 2011 at 06:14:28 PM EST
    I linked to in the Kobe Bryant case. They are typical for high-profile trials. The accuser's story should be told on the witness stand. The defendant's right to a fair trial is more important.  The only requirement is that reestrictions on her speech "must be narrowly tailored, that is, no more extensive than necessary to preserve the parties' rights to a fair trial."

    The state and the defense have the right to a fair trial. She's a witness. She doesn't get to sell (even if she's giving it away) her side of the story in public before trial. It's a no-brainer.

    The US Supreme Court in the landmark case of Gentile v. State Bar of Nevada, 501 U.S.
    1030 (1991), held that a court may restrict extrajudicial statements of the parties and their counsel in order to protect the proceedings from prejudicial external influences. It said "the theory on which our criminal justice system is founded" is that:

    The outcome of a criminal trial is to be decided by impartial jurors, who know as little as possible of the case, based on material admitted into evidence before them in a court proceeding. Extrajudicial comments on, or discussion of, evidence which might never be admitted at trial and ex parte statements by counsel giving their version of the facts obviously threaten to undermine this basic tenet.

    "The vigilance of trialcourts against the prejudicial effects of pretrial publicity also protects the interest of the public and the state in the fair administration of criminal justice.

    Or the US Supreme Court in Shephard v Maxwell:

    Courts are obligated to take steps to "protect their processes from prejudicial outside interference." Sheppard v. Maxwell, 384 U.S. 333, 363 (1966) "Neither prosecutors, counsel for defense, the accused, witnesses, court staff[,] nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function." Sheppard, 384 U.S. at 363.


    I read the order; trial judges err every day (none / 0) (#6)
    by Michael Masinter on Sun Jul 24, 2011 at 07:02:31 PM EST
    Since when did a trial court judge in Colorado become the final word on the meaning of the first amendment?

    Gentile empowers courts to restrict the speech of parties to a criminal prosecution and their counsel -- parties are the state and the defendant, and their counsel are the prosecutor and the defense attorney.  Witnesses, including complaining witnesses, are not parties and are not agents of the prosecutor.

    The ACLU of Florida, on whose board I sit, secured a reversal in the Eleventh Circuit of a U.S. District Court judge's gag order prohibiting potential witnesses from speaking; it took less than 48 hours.

    I don't mean to diminish the value of a right to a fair trial; it is a bedrock of civil liberties.  But the right to free speech is too, and absent a compelling governmental interest narrowly tailored to the least restrictive means, the government cannot regulate speech on the basis of its content, much less impose a gag order.  From Near to the Pentagon Papers litigation, the limits on the power of courts to enjoin speech have been clear.


    it's not a bedrock of civil liberties (none / 0) (#9)
    by Jeralyn on Sun Jul 24, 2011 at 08:40:51 PM EST
    The right to a fair trial and an impartial jury is a bedrock of our constitution.

    As is the right to freedom of speech (none / 0) (#20)
    by Michael Masinter on Mon Jul 25, 2011 at 10:07:02 AM EST
    Both are part of our constitution; both are bedrocks of civil liberties.  DSK's lawyers get this; that's why they aim their attack at her counsel, not her, for her counsel is an officer of the court already subject to constraints on speech that do not apply to witnesses.  

    What do you propose (none / 0) (#10)
    by mjames on Sun Jul 24, 2011 at 08:52:15 PM EST
    in order to ensure a fair trial for DSK? We now have someone commenting here that, since DSK has a bad rep, he must stand trial. Forget the fact that there is no common scheme or plan for other alleged uncharged crimes and there is no credible complaining witness.

    The Newsweek article is precisely the sort of pretrial publicity that the Supreme Court found unacceptable in Sheppard.

    Of course, there is no criminal case; otherwise, as Peter G said above, no way would the prosecution allow the main witness in the case to provide even more material for cross-examination.


    Change of venue and careful voir dire (none / 0) (#21)
    by Michael Masinter on Mon Jul 25, 2011 at 10:14:09 AM EST
    Conventional solutions that customarily work.  We think we can accord an alleged terrorist a fair trial despite the enormous public discussion their alleged conduct generates.  We did not gag the surviving victims or relatives of the Oklahoma City bombing.  Why can't we accord an alleged sexual batterer a fair trial in the face of public discussion of the case?  Again, what Jeralyn proposes is, in essence, a special constraint on speech for those who claim to be victims of sexual battery; they alone must shut up or forego the possibility of the prosecution of the alleged rapist.  

    One hopes you are never accused of (none / 0) (#12)
    by oculus on Sun Jul 24, 2011 at 11:10:37 PM EST
    committing a crime.  

    This one hopes (none / 0) (#14)
    by Rojas on Mon Jul 25, 2011 at 12:54:59 AM EST
    this individual is never part of a jury pool.

    Bread and circuses... (none / 0) (#15)
    by Mr Natural on Mon Jul 25, 2011 at 12:59:19 AM EST

    Saul1 (none / 0) (#24)
    by Jeralyn on Mon Jul 25, 2011 at 11:59:45 AM EST
    If you keep insisting DSK is a criminal or guilty, you will be banned. Future comments will be deleted. It's against the principles of this site. Take it elsewhere. For now you are in time out.