DA Files Motion to Dismiss Charges Against Dominique Strauss Kahn

The Manhattan District Attorney's office has filed a 25 page motion asking the court to dismiss all charges against Dominique Strauss-Kahn. You can read it here.

“The nature and number of the complainant’s falsehoods leave us unable to credit her version of events beyond a reasonable doubt, whatever the truth may be about the encounter between the complainant and the defendant,” the papers state. “If we do not believe her beyond a reasonable doubt, we cannot ask a jury to do so.”

DSK's lawyers issued this statement: [More...]

“We have maintained from the beginning of this case that our client is innocent.” ... “We also maintained that there were many reasons to believe that Mr. Strauss-Kahn’s accuser was not credible. Mr. Strauss-Kahn and his family are grateful that the district attorney’s office took our concerns seriously and concluded on its own that this case cannot proceed further. We look forward to attending the hearing on Tuesday.”

While the prosecutors didn't make draw any factual conclusions as to what happened during the hotel room encounter, they take the extra step of saying they can't even conclude Strauss-Kahn is guilty:

Rather, we simply no longer have confidence beyond a reasonable doubt that the defendant is guilty.”

In other words, they are not just saying they think he's guilty but they can't prove it. They are saying they aren't sure of his guilt. What a difference from their position when they filed the charges.

Here's my longer post earlier today about the problems with the case and the accuser's lawyers' latest attempts, which surely will be futile, at fighting the DA.

I have nothing but praise for the dismissal. Nothing will undo the damage Strauss-Kahn suffered by the early rush to judgment, arrest, perp walk and onerous bail conditions. This has cost him the Presidency of his country and his reputation. But the DA did the right thing in the end, notwithstanding the accuser and her lawyers' desperate grandstanding.

The main takeaways: Police should thoroughly investigate the facts before seeking an arrest warrant. Bond is not a punishment to be meted out pre-trial. This isn't Alice in Wonderland ("No no, said the Queen, First the Punishment Then the Verdict.") Prosecutors should only seek to deny bail where the suspect is a flight risk and a danger to the community. And perhaps most importantly, accusers should not have the privilege of anonymity -- especially when they retain their own counsel who go on TV day after day publicly trashing the named suspect, claiming he's guilty and ostracizing him.

In the end, Cy Vance and his office respected the most important lesson of all: A prosecutor's job is not to convict, but to see that justice is done.

Kudos to William Taylor and Ben Brafman for a job well done. Against all odds, and with very little public comment and no grandstanding, they prevailed.

I'll be back with more thoughts after I've read the 25 page motion.

All of our prior coverage of the case is here.

Update: The motion confirms my speculation this morning: the prosecutors were concerned the accuser would commit perjury on the witness stand at trial:

[W]e have no confidence that the complainant would tell the truth on this issue if she were called as a witness at trial.13

13. See New York Rules of Prof I Conduct R. 3.3(a)(3) ("[a] lawyer shall not knowingly ... offer or use evidence that the lawyer knows to be false," and "[a] lawyer may refuse to offer evidence ... that the lawyer reasonably believes is false");id. R. 3.3 cmt. 6A (prosecutors have additional duty "to correct any false evidence that the government has already offered," and prosecutor should inform the tribunal when she comes to know that a prosecution witness has testified falsely); id. cmt. 9.

Also critical: While she admitted some lies to prosecutors, including lying to the grand jury, she at times denied telling prosecutors certain things in earlier interviews.

And then there's this, about her admitted false account of a prior rape she invented:

[M]ost significant is her ability to recount that fiction as fact with complete conviction.
Even her excuse for lying turned out to be a lie:
In response to questioning by prosecutors on May 16, 2011, the complainant volunteered that she had previously been gang raped by soldiers who had invaded her home in Guinea. In an interview held on May 30, 2011, she offered precise and powerful details about the number and nature of her attackers and the presence of her 2-year-old daughter at the assault scene, who, she said, was pulled from her arms and thrown to the ground. During both interviews, she identified certain visible scars on her person, which she claimed were sustained during the attack. On both occasions, the complainant recounted the rape with great emotion and conviction: she cried, spoke hesitatingly, and appeared understandably distraught, and during the first interview, even laid her head face down on her arms on a table in front of her.

In subsequent interviews conducted on June 8,2011, and June 9, 2011, the complainant admitted to prosecutors that she had entirely fabricated this attack. When asked to explain why, she initially stated that she had lied about the gang rape because she had included it in her application for asylum, and she was afraid to vary from her application statement; she also stated that at the time she told prosecutors this account, she was not under oath.

When confronted with the fact that her written asylum application statement made no mention of the gang rape, she stated that she had fabricated the gang rape, as well as other details of her life in Guinea, in collaboration with an unnamed male with whom she consulted as she was preparing to seek asylum. .... Ultimately, she told prosecutors she decided not to reference the rape in her written application. (my emphasis.)

She couldn't even keep her lies straight, and then justified lying to prosecutors by saying she wasn't under oath? As if that makes it ok?

She admitted falsifying her applications for low-income housing:

For example, she executed repeated certifications that she now admits were fraudulent to re-establish her eligibility for the low-income housing where she resided, in which she intentionally omitted the income she made from the Sofitel.
She also didn't just allow her drug-dealer boyfriend to make large cash deposits into her account -- she helped disburse the money:
At times, she said, he had asked her to withdraw cash that he had deposited and give the money to a business partner of his who was located in New York City.
The medical and scientific evidence did not establish a non-consensual forcible encounter. She refused to turn over her prior medical records so prosecutors could determine if her claimed shoulder injury was pre-existing.

She gave three different versions of what happened after the encounter. Version 2, told in the presence of her attorney on June 28:

The complainant gave a new version of these events, stating that after leaving the defendant's room, she had gone directly into another room (2820) to finish cleaning it She gave specific details, saying that she had vacuumed the floor and cleaned the mirrors and other furniture in that room. She further stated that after completing her tasks in Room 2820, she had returned to the defendant's suite and began to clean it as well. She reported that when she subsequently went to a linen closet in the 28th floor hallway to retrieve supplies, she encountered her supervisor, and the two of them went back into Suite 2806 together.
When confronted with the fact that the key card entries showed she only was in 2820 for a minute, not long enough to clean, on July 27, she came up with version 3:
Those records, which were also provided to complainant's counsel by someone outside of this Office, established that the complainant entered Room 2820 at 12:26 p.m., and also entered defendant's suite during the same minute (also 12:26.)

...Immediately after the incident, she stated, she left Suite 2806 and ran around the comer, as she had originally reported, not right into Room 2820. After seeing the defendant leave in the elevator, she entered Room 2820 only momentarily to retrieve cleaning supplies.

As to the statements that the complainant had made on June 28, she denied making them, and asserted that they must have been mistranslated by the interpreter or misunderstood by prosecutors. But that claim is not believable in light of the extensive follow-up questioning about these events, as well as the complainant's insistence on June 28 that the account she gave on that day was truthful. Critically, her willingness to deny having made those statements to the very same prosecutors who had heard her make them on June 28 calls her credibility into question at the most fundamental level.

Mistranslated? Doubtful, says the DA:
The complainant demonstrated her ability to speak and understand English over the course of numerous interviews with investigators and prosecutors. Indeed, at times, she corrected the interpreter's translation of her remarks. Notably, she did not do so during the extended questioning on this topic in the June 28 interview.
I've just scratched the surface. There are many more inconsistencies and lies recounted by prosecutors in their motion. On a lighter note, the Sofitel suite DSK stayed in sure gets a lot of action. It's also not a place I'd want to walk around barefoot:
Three of the other stains on the carpet contained the semen and DNA of three different unknown males, and one other stain contained amylase and a mixture of DNA from three additional unknown individuals. The stain on the wallpaper contained the semen and DNA of a fourth unknown male.
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    Inside the 25-page motion (none / 0) (#1)
    by markw on Mon Aug 22, 2011 at 07:22:47 PM EST
    Just read the 25 page motion.  Here are some interesting points:

    (1) Defendant told not 2, but 3 different versions of what happened on the day of the incident, each time changing her story when confronted with facts

    (2) There is no evidence that the reported redness around her vagina was even an injury, much less than that it was caused by being grabbed by DSK.  An expert in fact concluded that it was not likely caused by such an act.

    (3) Expert testimony also suggests that any trauma to the shoulder was not caused by DSK but perhaps by repetitive acts over time.  The accuser refused to grant access to prior medical records so that the prosecutors could check to see if this was a pre-existing condition.

    (4) The incident allegedly took place between 12:06 and 12:26.  Phone records indicate that DSK placed a call to his daughter at 12:13.

    Those are some of the most interesting things from a quick read.

    well done (none / 0) (#2)
    by Jeralyn on Mon Aug 22, 2011 at 08:03:17 PM EST
    It took me over an hour to do do my update and way too many paragraphs. You noted the same things far more concisely. Wish I could do that.

    well... (5.00 / 1) (#4)
    by markw on Mon Aug 22, 2011 at 08:30:07 PM EST
    You're a lawyer and I'm a professor.  You get paid for leaving no stone unturned.  I get paid for taking in vast amounts of information and simplifying it as fast as possible into something digestible :-)

    Useful points (5.00 / 1) (#5)
    by Towanda on Tue Aug 23, 2011 at 12:34:51 AM EST
    and thanks, both of you.  I now can avoid useless media reports that may miss or muddle these points, about the evidence and about the prosecutor's task.

    Of course, I could wait for the inevitable episode of Law and Order that will claim to not be based on a true story.  And it would wrap up all of this in about 42 minutes but subject me to 18 minutes of commercials.


    Shakesville (none / 0) (#3)
    by AngryBlackGuy on Mon Aug 22, 2011 at 08:20:52 PM EST
    As I have mentioned here occasionally, that blog can be infuriating for using feminism as a cloak for justifying a lot of immoral, unfair and unethical actions.

    I hoped that they would address the case today and they did. The results were to be expected.  The DAs are painted as lying, dirty public officials who cared nothing for this woman's pain.  No mention whatsoever is made of the lies the woman told or the ethical standards that we expect from our proctors.

    They will receive a lot of that flack in the next day about this case and I believe it important to highlight the blatant unfairness with which they are being treated now that they have done the right thing,

    Read the post and comments on this case over there and it is easy to understand why people are frustrated with them.


    Again, kudos for providing a forum in which real legal analysis can be made and appreciated, particularly on a case this explosive and controversial.

    Walking barefoot in hotels (none / 0) (#6)
    by gyrfalcon on Tue Aug 23, 2011 at 01:22:47 AM EST
    Years ago, the late, lamented ABC News magazine "PrimeTime Live" did a story on the contents of the stains they found in hotel rooms expensive and cheap, and it was utterly horrifying.  More than one had XX stains on the ceiling, never mind the floor, the walls and the bedspreads.  (Sheets get laundered at least after every guest, not so the bedspreads.)

    You really do want to wear a hazmat suit in any hotel room, even at the Ritz or the Four Seasons.

    & you want to (none / 0) (#7)
    by The Addams Family on Tue Aug 23, 2011 at 01:29:28 AM EST
    turn down the bedspread (with latex-gloved hands!) & then never touch it again

    here is a guide to checking your hotel room for bedbugs


    Semen stains (none / 0) (#8)
    by Ambiorix on Tue Aug 23, 2011 at 03:41:56 AM EST
    In the motion is stated that the DNA of DSK, found in the semen stains, found on the uniform of the maid, establishes that there was a sexual encounter between DSK and the maid.

    But that is a jump to conclusion.

    1. She entered the suite a first time at 12:06 and:
        a. saw or heard that the room was still occupied and left;
        b. got sexually assaulted;
        c. there was a brief sexual encounter.

    2. She entered the suite a second time at 12:26 to clean the suite, after DSK had left the suite (he checked out the Hotel at 12:28).

    Only when point b or c is established, the sexual encounter can be established.
    She denies point c and neither has DSK admitted there was any.

    If point a, then it looks that the second time she entered the suite, she found tissues with semen (someone cleaning hotel rooms must recognize them just by the smell) and got the idea that she could make money out of it, by using it to produce false DNA evidence.
    And she needed loads of money (no offence folks) to have any chance to prevent the deportion of her convicted fiancé.

    don't get carried away (none / 0) (#12)
    by Jeralyn on Tue Aug 23, 2011 at 10:00:57 AM EST
    DSK did not deny there was a sexual encounter. His defense team only said there was no force and any sex was consensual. It's beyond obvious there was a sexual encounter. This dispute was over whether it was consensual. The DA said in its motion that it was relying on the evidence it had collected, interviews with the accuser and information presented by the defense team. There is nothing to suggest DSK denied having a sexual encounter.

    DSK's lawyer confirmed there was (none / 0) (#13)
    by Jeralyn on Tue Aug 23, 2011 at 07:04:40 PM EST
    a sexual encounter between them in an interview with Reuters:

    "This encounter was quick, it was consensual and she was a willing participant," defense attorney Benjamin Brafman told Reuters in an interview.

    The problem with consented sex (none / 0) (#14)
    by Ambiorix on Tue Aug 23, 2011 at 11:01:07 PM EST
    If he proposed the consented sex: she could have said no and walked out, or consented to it, or got forced to it.

    If she was forced to it, then it wasn't consented.

    If it was consented we should never have heard of it.
    It also means that they could negociate and finish the deal in the short time available (12:06 till 12:13), and one must conclude that she did this more often, and we should never have heard of it, especially not in the form of a rape case.

    If she walked out, she made up the rape later.
    When she found out later (at 12:26 she reentered the suite after he left) when she cleaned the suite that he finished the deal on his own, she should have gone with the hush money for not filing a formal complaint about undececent exposure, but instead she got greedy.


    not necessarily (none / 0) (#15)
    by markw on Wed Aug 24, 2011 at 06:20:28 AM EST
    There are lots of circumstances in which the sex could have been consensual but that she still would have launched a complaint about it.  Perhaps she was expecting to get paid, and he didn't pay her.  Or perhaps she was expecting to get paid and he didn't pay her as much as she expected.

    Or perhaps she chose to blackmail him before leaving, demanding a large amount of money or to be charged with rape.  Or perhaps she plotted all along to invent a claim of rape and then to bribe him or get rich through a civil suit.  Or (unlikely, but not impossible) perhaps she was recruited by political opponents of DSK.

    Especially given her history of scheming and lying for personal gain, it's not hard to imagine a scenario of a consensual encounter that still led to a complaint.


    The small timeframe (none / 0) (#17)
    by Ambiorix on Wed Aug 24, 2011 at 08:06:31 AM EST
    The money involved for that brief sexual encounter wouldn't have been that much that he wouldn't have payed it, or that she would have taken the risk of the consequences for filing a false rape complaint, if she didn't got all the money.

    If there where a plot (she alone or with others), there is still the small timeframe of minutes, wherein she had to lure him in to have consented sex, while he was getting ready to leave the hotel.


    prior history (none / 0) (#18)
    by markw on Wed Aug 24, 2011 at 12:12:48 PM EST
    This woman has a history of making lies to authorities that are much easier to disprove (e.g., claiming children that she doesn't have, claiming to be HIV+ when she is not) for her own financial gain.  Those false claims also carried risks.  What makes you so confident that she wouldn't lie again?

    where did you get that she (none / 0) (#20)
    by Jeralyn on Wed Aug 24, 2011 at 03:07:10 PM EST
    claimed to be HIV-positive? She was living in city controlled housing for HIV residents, but I don't recall reading she claimed to be HIV positive.

    Her husband, who died in Africa after a long illness, may have had AIDS. I don't know if her and her daughter were at risk, but perhaps they qualified for the housing without lying.

    She lied to get the housing by omitting her income from the Sofitel on her application, and she lied about her dependents on her income tax, but I don't know that she lied about being HIV positive.


    How consented is sex when followed by a rape claim (none / 0) (#19)
    by Ambiorix on Wed Aug 24, 2011 at 02:55:48 PM EST
    What you mean "wouldn't lie again", she made up the rape.

    DSK lawyers say that the sex was consented, and after what the DA's office has put DSK through, they not gonna press him to explain that in detail under oath are they. (they leave that open, in case he makes a complaint against them)

    If she was used to get payed for sex (given the small time frame, if it happend), it is very unlikely that she would think that she could get away with a false rape claim, because someone could have noticed a previous consented sex money exchange, without feeling the need then to report it, but the rape claim would change that position, and blow her "rape of an innoccent maid" claim out of the water.


    Isn't a frand jury similar (none / 0) (#9)
    by oculus on Tue Aug 23, 2011 at 04:47:06 AM EST
    to a preliminary hearing in that the prosecutor presents however much evidence he or she assesses is sufficient to get an indictment or bind over?  No cross-examination. If this is accurate assessment pre moi, it doesn't surprise and/or shock me the DA,s office put the victim b/4 the grand jury b/4 completing investigative work on the case.  

    no (none / 0) (#11)
    by Jeralyn on Tue Aug 23, 2011 at 09:57:22 AM EST
    grand juries are one sided. Preliminary hearings allow cross examination and argument. It's just that the full rules of evidence don't apply at prelims, for example, hearsay is allowed. And the scope is limited to probable cause...they are not supposed to be used as a discovery tool.

    Their function is the same though. Both are proceedings at which it is determined whether probable cause exists that a crime was committed by the person charged.


    DA's office should be (none / 0) (#10)
    by oculus on Tue Aug 23, 2011 at 04:54:07 AM EST
    commended for dismissing case in which it did not believe the victim sufficiently to put her on as a witness under oath. Espec. given DNA results esblish sexual contact with the victim by the suspect.

    Guardian jumps the ship (none / 0) (#16)
    by markw on Wed Aug 24, 2011 at 06:33:35 AM EST
    I just read a disgusting editorial (not an op-ed, but an official newspaper editorial) in UK's Guardian nespaper. Referring to DSK, it claimed that "he has been freed on a technicality" and therefore deserves to have his political career destroyed.

    When a prosecutor finds no credible evidence of a forced or nonconsensual encounter, and thus dismisses a rape case, that's considered being "free on a technicality"? And those accused in such incidents are now presumed guilty rather than presumed innocent?

    If the newspaper would come out and say that DSK should be deemed disqualified from being a political leader because he had sex with a maid, then at least their position would make sense (in its own prudish way). However, to try to cast the idea that DSK should be considered guilty of a crime because he hasn't been proven innocent of it is sickening, and even worse for a newspaper that purports to be liberal.