Prosecutorial Responsibility

125 thoughts on Prosecutorial Responsibility

1. Talk to me when the defendant is not a upper class white male.

   Or just not .001% percentile.

   1. Shah8, I hear you.

2. I agree with Jill. Nifong-ing a case is way worse – and would have lead to a huge backlash.

3. I fail to see why the defendant’s gender or class is at all pertinent, Shah8.

   Agreed– no dishonor (or “blackeye”) in Vance’s actions.

4. Lisa:
   I fail to see why the defendant’s gender or class is at all pertinent, Shah8.

   Agreed– no dishonor (or “blackeye”) in Vance’s actions.

   Institutionalized classism and sexism? (And racism, although you didn’t question that.)

   Just throwing it out there.

5. @OP

   With apologies in advance for reposting from the prior thread:

   Although releasing exculpatory findings to the court and to the defense team is indeed proper, releasing such findings to the public, before jury selection, is not proper at all, because it can prejudice the jury pool against the accuser.

   I admit to being paranoid about this issue, but it’s hard not to conclude that Vance is trying to escape from an ‘unwinnable’ case by smearing his own chief witness.

   Even in the prior thread, a plurality of comments show how quickly some observers have turned against the accuser. Think of the effect of these leaks on a potential jury pool.

   The accuser deserves a proper trial just as much as DSK. For Vance to torpedo his own case through public leaks, just to get rid of a possibly unwinnable case, is grossly improper.

6. Poeschl: Even in the prior thread, a plurality of comments show how quickly some observers have turned against the accuser. Think of the effect of these leaks on a potential jury pool.

   I disagree.

   Since this case has been in the media from day one, the damage was already done. It would not be better for the jury members to have preconceived beliefs on his guilt in either direction. On the whole I think it is better if the information out there is as fair as possible. In other words I believe it was proper that this information was released.

   Furthermore, the media appears to have multiple sources, so by the time it was officially released the story was already out there.

7. I don’t think this is so much about trying to escape an “unwinnable” case so much as stating for the public record that a lot of the witness testimony that was provided to the grand jury has been found to be false. If the DA doesn’t think there is enough evidence to try a case, the case is not supposed to go to trial. Period. This worrying about jury selection is besides the point, because it’s pretty obvious that the case against DSK is going to be dismissed. These limitations on public prosecutors exist for very good reasons that have nothing to do with this case, with rape cases in general, or with kyriarchy.

8. Prosecutors have been known to go after the rich and powerful with zealotry. Ken Starr? Or even just the privileged. Nifong. So I’m not sure how to factor in Struss-Kahn’s gender and class.

   Guilianni and Spitzer both made a name for themselves going after Wall St tycoons. So there’s an incentive here. Vance jr must have seen this incentive. he had every reason to want to win this case and believe the maid.

   And he appears to have believed her until she became unbelievable. When he saw reasonable doubt, he let the defendant walk. That sounds honorable.

   In contrast, the hapless Nifong did not even want to hear evidence proving innocence, never mind doubt. The problem is however that Nifong’s pariah status is an outlier.

   Connick Sr may not be as popular as Jr but he’s not exactly Omarosa either. AFAK, Linda Fairstein still thinks the central park 5 are guilty. I mean, what does it take to get thru to these zealots? Janet Reno and her childhood ritual abuse voodoo? She wasn’t even Borked, never mind Nifonged.

   And why do we still have an aircraft carrier named after a Democratic Senator who prosecuted black men based on confessions he knew were elicited from torture?

   Thats the problem.

9. Poeschl-

   If the various allegations against the accuser are true — and we have no reason to believe they’re not, considering their source — wouldn’t this information prejudice twelve jurors just as readily as it prejudices the jury pool?

   These findings irreparably damage her case whether twelve –or twelve million– people hear them.

10. @Lisa #10 – “These findings IRREPARABLY damage her case …” [capitalization added].

    The reason that I’m not yet convinced that her case is irreparably damaged is that, with these selective leaks, the public doesn’t yet have the context from which this leaked info was provided. That context could have been provided during the course of a jury trial.

    What ultimately concerns me is the DA’s acting unilaterally without first giving the accuser and her lawyer an opportunity to consent to dismissal of the charges.

    A fairer way for the DA to act unilaterally would have been to inform the accuser and her lawyer that the investigation’s findings had made the case unwinnable, and that, with or without the consent of the accuser and/or her lawyer, the DA was going to hand the exculpatory findings to the judge and defense and unilaterally move for dismissal. That way, the accuser and her lawyer would at least have had the opportunity to consent to dismissal.

    But what the DA actually did, besides properly providing the findings to the judge and defense, was to selectively leak info to the public and then publicly vow to continue prosecuting all charges, including the rape charge. The DA here is not only being a public hypocrite, he’s effectively degrading the accuser in the public eye, while pretending not to.

    The accuser, even if she’s been an unreliable witness, does not deserve to be degraded in public, because she might actually have been raped. We’ll never find out now because the DA has deliberately torpedoed his own case, which was unnecessary and unfair to the accuser.

    Note: I acknowledge Matlun’s and JDP’s points. But the way to dismiss the charges (predicted by JDP) is to unilaterally move for dismissal after first giving the accuser and her lawyer a chance to consent to that dismissal. There was no need to publicly shame the accuser and then hypocritically vow to continue prosecuting the rape charges.

    Sorry for this overlong response.

11. Jadey: Institutionalized classism and sexism? (And racism, although you didn’t question that.)

    Just throwing it out there.

    But again, what does this have to do with the matter at hand?

    Should prosecutors bring frivolous criminal charges against rich white males simply because they are rich, white, and male? Should we change the standard of “reasonable doubt” to “merely accused” simply because of someone’s gender, class, or skin color?

12. Poeschl: A fairer way for the DA to act unilaterally would have been to inform the accuser and her lawyer that the investigation’s findings had made the case unwinnable, and that, with or without the consent of the accuser and/or her lawyer, the DA was going to hand the exculpatory findings to the judge and defense and unilaterally move for dismissal. That way, the accuser and her lawyer would at least have had the opportunity to consent to dismissal.

    This appears to be a misunderstanding of criminal law. The prosecutors are not working for the alleged victim here, they are working for the government. The allegedly wronged party does not, as a rule, have any say in the prosecution of the case any more than any other witness (IANAL)

13. Natalia:
    I agree with Jill. Nifong-ing a case is way worse – and would have lead to a huge backlash.

    Not that I disagree, but come on Natalia, full disclosure. You’re a Dukey.

14. Mike: But again, what does this have to do with the matter at hand?

    Should prosecutors bring frivolous criminal charges against rich white males simply because they are rich, white, and male? Should we change the standard of “reasonable doubt” to “merely accused” simply because of someone’s gender, class, or skin color?

    No one came close to suggesting that. I’m actually a little boggled that that’s the leap you made, although I suppose I’m being naive again.

    Institutionalized sexism, racism, and classism (among other vectors of oppression) means that the system will always be more likely to give proper treatment to people with the most social clout. The system already takes gender, class, and skin colour into account, and certainly not in a way that works against DSK.

    If you don’t agree that the system is biased, fine – believe what you like. I’m confident in the evidence that exists that the system is biased and this is hardly the thread to debate it.

15. Poeschl: What ultimately concerns me is the DA’s acting unilaterally without first giving the accuser and her lawyer an opportunity to consent to dismissal of the charges.

    The decision to proceed with the case lies with the prosecutors, not the complainant, and while informing the complainant about a pending dismissal is certainly morally desirable, consent just isn’t the issue here. The prosecutors have a duty to dismiss if they have reasonable doubt about the defendant’s guilt (though they have not asked for a dismissal yet, they are most likely going to do so before long).

    There has been nothing at all to suggest that the DA has deliberately undermined a viable case. There were also no grounds on which the prosecution’s disclosures to the court could have been kept under seal, especially since a defendant’s bail conditions in NY depend in part on the strength of the case, and the results of the investigation were likely to lead to DSK’s being released on his own recognizance, as he was.

16. Vance doesn’t have a black eye because his case has come apart; he has a black eye because the international perception will be that he accused first and thought later. I’m not French but my impression is that the case reinforces the stereotype of American arrogance here in Europe.

    Destroying one of the two leading contenders to the presidency of a foreign country is a fairly serious intervention. Especially if said foreign country is a loyal old friend. [i]Especially[/i] if said foreign country is a loyal old friend whose diplomatic air support and intelligence network you’ve been leaning on [i]very[/i] heavily for the last decade or so.

    Most nations would make sure they have a strong case against the guy. Most nations would also want to avoid the impression they were intentional doing avoidable damage to a person still notionally presumed innocent, for example by staging hugely theatrical perp walks. The Germans would have done their homework, gotten a sealed indictment, and arrested DSK the next time he would have dropped by, or perhaps demanded his extradition. As others have pointed out, DSK is not a creator like Polanski who can just continue creating elsewhere. He’s a diplomat; his reputation as upstanding and confident is his life; if he runs and hides it’s over.

    The Italians would have done their homework. The Russians would have done their homework. The Chinese would have done their homework. The Americans… not so much. Who gives a shit, it’s just the silly cheese-eating surrender monkeys anyway, hurr durr.

    You go, guys. Everybody knows you have enough friends.

    1. Georg, I don’t think it’s fair to say that Vance didn’t do his homework. This was an extraordinary situation — serious charges against a wealthy and well-connected individual who was in the process of boarding a plane and leaving the country. There wasn’t time for a full-on investigation. There was enough evidence to make the arrest, and the person to be arrested would have been able to leave without any hope of extradition. Arresting him was the right thing to do. Treating him with kid gloves because he’s an oh-so-special rich politician? No.

17. Not that I disagree, but come on Natalia, full disclosure. You’re a Dukey.

    Sure am. I even recall posting a link to a picture of myself with DU emblazoned on one butt-cheek and KE on the other on this very blog.

18. Although the scientific term is actually Dukie – as in, “I’m a little Dukie.”

19. Jill: There was enough evidence to make the arrest, and the person to be arrested would have been able to leave without any hope of extradition.

    As Georg said, they could have obtained a sealed indictment and waited for him to return to his regular job. When he was sitting on the pre-scheduled flight to Paris (surely they knew he didn’t just run to the airport and buy a ticket), DSK had no idea that the complainant had even made a report.

    Whatever we may think of DSK, the European negative response to this is understandable – there simply is no way that an American politician of comparable stature would have been treated in the same way anywhere in the world (where even minor US government flunkies who commit cold-blooded murder get sprung out of jail with barely a nod to legal niceties), and if one were to be so treated, the American public response would be much, much worse. Not to mention the general problem with arresting someone with diplomatic immunity – a tricky situation even where the evidence is firm.

20. Jill: Treating him with kid gloves because he’s an oh-so-special rich politician? No.

    The issue that matters to European public opinion is not about giving him special treatment because he’s a rich politician. It is giving him special treatment because he was a foreign politician and a high-ranking official of an international organization. The law generally recognizes that such people should be afforded special treatment (and DSK chose not to exercise the full rights the law affords him, namely immunity from prosecution).

21. Jill,

    I don’t think Europeans in general have a problem with DSK being arrested. The chance of France extraditing him is zero, because France does not extradite its own citizens. Whether DSK would return on his accord is another question – that would depend for one on whether he believes he’ll get a fair trial, or if he believes it is a PR exercise on the part of the NY DA. DSK is a politician, but his political career would have been over, or at the very least this case would have provided ammunition for his opponents, once the allegations are made public during the request for extradition.

    No, what riled the Europeans (esp. the French) is the whole “perp walk” that was forced on DSK and which was public (such a public display of someone arrested is illegal in France). And with it, the whole suggestion of “he is guilty” i.e. him being pronounced guilty before full investigations were completed. The Europeans don’t generally hold the US police in high esteem (the joke is that they shoot first and ask questions later). And I’m sure the feeling is mutual.

22. Georg:
    The Italians would have done their homework.

    Yeah, tell us how that worked out for Amanda Knox.

    If anything, this may have been an attempt to prevent another debacle similar to the Polanski one, where a European with social influence essentially circulates freely in Europe and cannot be arrested because they are protected by various European governments even though those governments have signed extradition treaties with the US.

    As far as I can tell, the justice system is working perfectly well here. A man was accused of a crime. He was arrested. He was formally charged. He was released on bail with reasonably flexible bail conditions. An investigation ensued where new information came to light pertaining to the alleged crime. That information was reported to the defense and to the court. That new information compromises the prosecutor’s case. Unless substantial new information comes to light, the case will be dismissed and the legal record sealed.

    “Perp walks” are completely besides the point.

23. Speaking of egg on Vance’s face, this is from an NYT account of comments by disgruntled NY prosecutors:

    “Several said they worried that cases were often pursued with an excessive focus on whether they would generate publicity. Some said Mr. Vance had taken away the discretion of midlevel prosecutors, sometimes to the detriment of cases.

    Those two issues, some prosecutors said, contributed to the difficulties in the case against Mr. Strauss-Kahn, the former head of the International Monetary Fund who had been considered a leading candidate for the French presidency.

    After Mr. Strauss-Kahn’s arrest, the district attorney’s office faced the question of whether to ask a judge to keep him in custody.

    To do so, the office had to obtain an indictment within five days. The alternative was to agree to a bail package so that prosecutors could take their time investigating the case before deciding whether to indict, according to four people briefed on the matter.

    In the end, Mr. Vance chose a quick indictment, drawing criticism that he had moved before he knew of the accuser’s background.”

24. JDP: He was released on bail with reasonably flexible bail conditions.

    He was first denied bail, and then released into house arrest with electronic monitoring and under armed guard over the prosecutors’ objections.

25. Anon: He was first denied bail, and then released into house arrest with electronic monitoring and under armed guard over the prosecutors’ objections.

    Which is reasonable if you can make the case that your defendant is a flight risk.

    The DA didn’t set the bail conditions. The judge did.

26. JDP:
    Yeah, tell us how that worked out for Amanda Knox.

    If anything, this may have been an attempt to prevent another debacle similar to the Polanski one, where a European with social influence essentially circulates freely in Europe and cannot be arrested because they are protected by various European governments even though those governments have signed extradition treaties with the US.

    Oh please! France does not extradite its own citizens (and this is no secret), and the US could have asked France to try the case in France. Also, the Californian prosecutors did not seem bothered with the case for like more than 10-15 years (did they not know that Polanski had a holiday chalet in Switzerland for many years?) till a couple of years back when they formally requested Switzerland to arrest him. And then blew it because they failed to file the requested information within the specified period.

    Also, correct me if I’m wrong, but a country does not turn over its citizen upon demand to a foreign country just because it has a treaty. Also, talk to the Brits – they are seething at the unequal extradition treaty they have with the US.

    BTW – Would Amanda Knox been extradited to Italy if she had returned to the US? Because it seems that it is not easy to extradite a US citizen to another country because of federal/state laws for one.

27. Jill:
    Treating him with kid gloves because he’s an oh-so-special rich politician? No.

    Actually, yes. Don’t laugh; there’s a serious US/Europe values dissonance here.

    In my corner of the planet we tend to very serious about this whole innocent until proven guilty thing. The prosecuting authorities have a very explicit responsibility not to hurt the accused any more than absolutely necessary. One aspect of this is we don’t arrest very much. You are taken into pre-trial custody only if the DA convinces the investigating judge you’re a higher-than-usual flight risk or there’s a higher-than-usual likelihood you will tamper with evidence or witnesses.

    One second aspect is we don’t do perp walks. One third aspect is that arrests tend to be very discreet if news of the arrest, especially steamy footage of the arrest, could do irreparable damage to the defendant. The rich and connected tend to be very vulnerable to damage to their reputations with the general public; a perp walk on national TV could cost them half their fortunes and all of their career. Someone like me? I’m not going to be on national TV; I lose a day of work and the plane ticket; two weeks later I will laugh about the affair.

    One final aspect is we don’t handcuff people very much. You are handcuffed if you’re considered physically dangerous or if you show signs of being unhinged or if it would be rational for you to try to escape. Handcuffing DSK, a tiny old man who would immediately and irrevocably lose a life of prestige and luxury if he made one wrong move, was widely seen as completely over the top. Many Europeans unfamiliar with US customs thought you were purposely humiliating him as much as possible.

    I hope I didn’t foul up the HTML again.

28. And while I wrote this, Anon (21) and Anthea (23) nailed it.

29. Georg: Handcuffing DSK, a tiny old man who would immediately and irrevocably lose a life of prestige and luxury if he made one wrong move, was widely seen as completely over the top.

    I’m sorry, tiny? Compared to whom? Shaq?

30. Hugo: I’m sorry, tiny?Compared to whom?Shaq?

    Are you joking? He is barely 170cm. Besides, even if he’d been of average height he still wouldn’t have been handcuffed in his native France. What was he going to do, punch his way to freedom and public rehabilitation?

31. Georg, tiny implies not just diminutive but slender. 170 Centimeters is 5’7″, only slightly below average. And DSK is, um, stout. You make him sound dwarfish.

    Oh, and 62 isn’t old.

    Look, I loathe perp walks too, on your side here.

32. Well said Jill. I completely agree.

    Georg, I agree that perp walks are horrifying. The kind of ritual abuse and humilation we routinely heap upon the accused in this country is horrifying. Prosecutorial misconduct such as Mike Nifong engaged in is horrifying.

    The one regret that I have is that public debate over these issues only seems to occur when there’s a high-profile defendant (always wealthy, often white and male), though most of the time the victims are not the cultural elite. What Nifong did? Is hardly unusual. A prosecutor was caught suppressing exculpatory DNA evidence in a rape case is Wisconsin around the same time and didn’t even get fired, and the state supreme court ruled that he was absolutely immune from liability because he was acting within the scope of his office. (In that case, incidently, there was no indication that the victim had lied about being raped; rather, she had misidentified the perpetrator.) Had the Duke case not attracted the publicity it did, Nifong would still be DA.

33. Hugo:
    Georg, tiny implies not just diminutive but slender.170 Centimeters is 5’7″, only slightly below average. And DSK is, um, stout.You make him sound dwarfish.

    I see. I was using “tiny” to mean short, not short and slender. I also didn’t really intend to make him sound dwarfish. Sorry, I guess. Not my first language.

34. I agree. Whether it turns out she lied, or he lied, or they both lied, everyone should support a Prosecutor who does due dilligence, and is willing to put forth ALL the evidence in the case. However a person feels about the facts in the case, the Prosecution done well.

35. So that’s why I see North African immigrants on TV with only their handcuffs blurred out. Because they have less to lose than DSK, and are clearly more likely to “tamper with evidence.” That’s why it’s ok to release the name of the victim–she’s not going to be “irreperably damaged.” I get it now.

    Jesus Christ.

    Georg:

    In my corner of the planet we tend to very serious about this whole innocent until proven guilty thing. The prosecuting authorities have a very explicit responsibility not to hurt the accused any more than absolutely necessary. One aspect of this is we don’t arrest very much. You are taken into pre-trial custody only if the DA convinces the investigating judge you’re a higher-than-usual flight risk or there’s a higher-than-usual likelihood you will tamper with evidence or witnesses.

    One second aspect is we don’t do perp walks. One third aspect is that arrests tend to be very discreet if news of the arrest, especially steamy footage of the arrest, could do irreparable damage to the defendant. The rich and connected tend to be very vulnerable to damage to their reputations with the general public; a perp walk on national TV could cost them half their fortunes and all of their career. Someone like me? I’m not going to be on national TV; I lose a day of work and the plane ticket; two weeks later I will laugh about the affair.

    One final aspect is we don’t handcuff people very much. You are handcuffed if you’re considered physically dangerous or if you show signs of being unhinged or if it would be rational for you to try to escape. Handcuffing DSK, a tiny old man who would immediately and irrevocably lose a life of prestige and luxury if he made one wrong move, was widely seen as completely over the top. Many Europeans unfamiliar with US customs thought you were purposely humiliating him as much as possible.

    I hope I didn’t foul up the HTML again.

36. People on this thread seem to be ignoring France’s history of xenophobia. The French media aren’t merely angry at “perp walks,” they believe he’s completely innocent, and his accuser is an African Muslim woman. This is a factor. French culture is also extremely sexist and DSK’s behavior towards women has been known and tolerated for years. So it’s quite deceptive to attribute the French reaction to the case to a distaste for “perp walks” or their perceptions of American justice. There’s much more at play here.

37. chava:
    So that’s why I see North African immigrants on TV with only their handcuffs blurred out.Because they have less to lose than DSK,

    I don’t know which immigrants you are talking about here, but that might more or less be the reason, yes. In order to avoid the arrest and the handcuffs the accused would usually be asked to provide evidence you have family in the country, a fixed place of abode, a stable job, or even just a network of friends. The rules naturally vary from country to country but they’re always laid down in statutes and they tend to be fairly specific; the prosecuting authorities don’t typically have a lot of discretion here.

    Europeans consider this system better than the American approach of automatic arrest + possibility of release on bail because the bail system really, really screws the poor. The bail bondsman gets to keep 10% even if you do shop up for trial. There are many ways in which being accused is cheaper in Europe than in the US, especially for minorities and the underprivileged, but this is one of the most important ones.

    That’s why it’s ok to release the name of the victim–she’s not going to be “irreperably damaged.”I get it now.
    I was surprised when I learned French media had released the name of the accuser; in those European countries I’ve actually lived in revealing the name of the complaining witness would be either illegal or at least get you seriously ostracized. Usually the media continue the withhold the name of the accuser even if the accused is acquitted. Look at what’s currently happening in the Kachelmann affair for example.

38. Crap, markup fail again. The last paragraph in the above comment should have read thusly:

    That’s why it’s ok to release the name of the victim–she’s not going to be “irreperably damaged.”I get it now

    I was surprised when I learned French media had released the name of the accuser; in those European countries I’ve actually lived in revealing the name of the complaining witness would be either illegal or at least get you seriously ostracized. Usually the media continue the withhold the name of the accuser even if the accused is acquitted. Look at what’s currently happening in the Kachelmann affair for example.

39. Oh well.

40. As Georg said, they could have obtained a sealed indictment and waited for him to return to his regular job. When he was sitting on the pre-scheduled flight to Paris (surely they knew he didn’t just run to the airport and buy a ticket), DSK had no idea that the complainant had even made a report.

    But he could very well have been aware that he had just raped a woman.

    I appreciate the problems with American television justice, but this amounts in context to a pretty hefty load of victim-blaming.

    He hasn’t denied (or is no longer denying) that he somehow managed to have sex with this woman. She has not recanted her accusation. All new information about her history, if true, seems to make her a very unlikely candidate for public provocation. And the first person caught out in a lie was the prominent politician who claimed he had been at lunch when he was actually having allegedly consensual sex with the accuser.

41. Georg:
    The Italians would have done their homework. The Russians would have done their homework. The Chinese would have done their homework. The Americans… not so much. Who gives a shit, it’s just the silly cheese-eating surrender monkeys anyway, hurr durr.

    You go, guys. Everybody knows you have enough friends.

    The Italians would have done their homework? The Italian “justice” system is broken. Google AMANDA KNOX.

42. Anon: The law generally recognizes that such people should be afforded special treatment (and DSK chose not to exercise the full rights the law affords him, namely immunity from prosecution).

    He doesn’t get immunity from rape charges. He only gets immunity from charges arising from his work, if that. There are now recognized exceptions from diplomatic immunity for criminal charges. And even parking tickets, which has been a big bone of contention in NYC for some time.

43. I understand American TV is quite popular abroad. Surely someone has noticed that perp walks and handcuffs are a feature, not a bug, in the NYPD.

    So the French are annoyed that DSK was treated like a common criminal?

44. Good point, piny–the exaggerations in the victim’s asylum application and her relationship with someone being investigated for crimes make her more credible, not less. Seriously, what kind of vulnerable immigrant flings around wild false accusations about dudes who stay in the pricey suite, just for shits and giggles? But we’re not dealing with rationality here.

45. I’m not French, and I’ve only been living in Paris for two months. But as an American, I get approached about DSK a lot (esp since I can talk about it at length in French).

    I would say there are 4 main things:
    1) Annoyance/disbelief/fury that we were so ready to “ruin his life”/treat him like a common criminal.
    2) Disbelief that we are SO NAIVE as to think that there is no plot or conspiracy at work.
    3) A crisis/come to Jesus moment over the level of sexism and machoisme in French politics and society.
    4) An anger that we (the US) don’t see that this is JUST LIKE CLINTON AND JFK OMG.

    It’s worth noting that this is going on at the same time as the Tron affair in France, so they’re handling 2 high placed sex scandals at once.

    zuzu:
    I understand American TV is quite popular abroad.Surely someone has noticed that perp walks and handcuffs are a feature, not a bug, in the NYPD.

    So the French are annoyed that DSK was treated like a common criminal?

46. Look, I don’t know this for sure, but my hunch is that what you’re describing would require several “justicatifs.” If they aren’t originals, hell, if they aren’t on the right kind of letterhead or sealed with paper clips rather than staplers, that could give the police enough wiggle room to just arrest you. And of course, the people in my neighborhood are actually going to be asked to PROVIDE these things, rather than someone like DSK.

    They regularly run “controls” in my area where if you can’t just produce your papers, yeah, you get arrested. So I’m not super sanguine about this “we are so careful not to arrest anyone ever.” It’s just CERTAIN people.

    Georg: I don’t know which immigrants you are talking about here, but that might more or less be the reason, yes. In order to avoid the arrest and the handcuffs the accused would usually be asked to provide evidence you have family in the country, a fixed place of abode, a stable job, or even just a network of friends. The rules naturally vary from country to country but they’re always laid down in statutes and they tend to be fairly specific; the prosecuting authorities don’t typically have a lot of discretion here.

47. FWIW, I haven’t spoken to anyone who will admit they think he is guilty, probably bc I am American. But the media has been coming to grips with the possibility, esp since he’s been known for sexual harrass—OH! I mean “seduction” for years.

    They have a very different idea of sexual harrassment here, to say the least. Here’s a worthwile article if you have French:

    http://tempsreel.nouvelobs.com/actualite/societe/20110608.OBS4760/enquete-la-france-des-machos.html

    Sarah J.:
    People on this thread seem to be ignoring France’s history of xenophobia. The French media aren’t merely angry at “perp walks,” they believe he’s completely innocent, and his accuser is an African Muslim woman. This is a factor. French culture is also extremely sexist and DSK’s behavior towards women has been known and tolerated for years. So it’s quite deceptive to attribute the French reaction to the case to a distaste for “perp walks” or their perceptions of American justice. There’s much more at play here.

48. zuzu: He doesn’t get immunity from rape charges.He only gets immunity from charges arising from his work, if that.There are now recognized exceptions from diplomatic immunity for criminal charges.And even parking tickets, which has been a big bone of contention in NYC for some time.

    As the head of IMF, DSK is immune from prosecution in all countries (different for rank and file members), and he tacitly waived his immunity by submitting to forensic tests – that much we have to acknowledge (see BBC article here: http://www.bbc.co.uk/news/world-us-canada-13412092). According to the same article, the fact that he was in the US as a private citizen was immaterial had no effects on his immunity.

    Of course, I’d be interested if you have information to the contrary.

    That he waived his diplomatic immunity does not prove his innocence and neither does it prove his guilt. It just shows (if we want to speculate) that he sees himself as having committed no crime at all.

49. chava:
    They regularly run “controls” in my area where if you can’t just produce your papers, yeah, you get arrested.So I’m not super sanguine about this “we are so careful not to arrest anyone ever.”It’s just CERTAIN people.

    Look, if you’re comparing two entire continents it’s inevitable that either side will occasionally make arrests that people on the other side will consider excessive or abusive. You handcuff and arrest people for jaywalking? You handcuff and arrest teenagers for shoplifting? You handcuff and perp walk ten-year-old children as sex offenders? What are you, completely bonkers?

    On balance, it’s a lot harder to get arrested and detained in most parts of Europe than in the US, especially if you’re poor or a minority. The consequences of arrest or short-term detention tend to be lot milder, especially if you’re poor or minority. There are much better protections against prosecutorial overreach, especially if you’re poor or minority, and against being wrongly convicted just because you’re broke and your court-appointed defender is incompetent.

    Are you telling me you prefer a system that needlessly upends millions of lives every year and keeps tens of millions of people in hereditary destitution just because it also manhandles a DSK or two every couple months? All those black kids we railroaded were totally worth it because we also seriously inconvenienced a few boorish lacrosse players?

50. @ Lisa: I believe shah8’s point was that we probably shouldn’t laud the prosecutor’s good conduct in this instance when the office still systematically refuses to afford the same treatment to those that aren’t so privileged.

    @ Jill: DSK probably didn’t have immunity. See this post @ Opinio Juris. The gist is that IMF officials, unlike diplomats, seem to only have a limited immunity that accrues to misdeeds performed in the course of discharging official duties.

51. Georg, first of all let me compliment you for your English. You’re better than most native speakers I’ve heard.

    On the substance of your comment, however, I have to vehemently disagree. The idea that wealthy and powerful people have more to lose and therefore should be treated differently that poor defendants is about as unAmerican as it’s possible to be. Since 1776 we’ve rejected the idea that social status confers legal privileges. (It took us nearly 200 years to complete the legal foundations for that position and we’re still not perfect, but we rejected hereditary privileges from the beginning.

    Also, I realize European history makes you very wary of harsh criminal penalties, but that isn’t necessarily the correct position. In the US, we impose harsh penalties for violent crimes, and sexual assault is one of the two most violent.* I believe the EU discourages even life sentences for murder; I consider that position utterly appalling and insulting to the victims of crimes. If DSK wanted to avoid a perp walk, he should have been more careful. If the case is dropped, the reason will be because the state can’t prove the crime, not because the crime didn’t happen. Maybe the perp walk will teach Mr. Strauss – Kahn a lesson in how to treat women, and if so, then the NYPD and DA will have done the world a favor.

    *Law Nerdiness: “rape” is no longer the real name of the crime. I believe NY adopted most of the model penal code which names the crime “sexual assault.” This is important, because it emphasized the violent nature of the crime.

52. zuzu: He doesn’t get immunity from rape charges. He only gets immunity from charges arising from his work, if that.

    That is not true. Under Article 6, Section 21 of the 1947 Convention on the Privileges and Immunities of the Specialized Agencies, he was granted full immunity from prosecution in all countries as head of the IMF. Immunity restricted to acts performed in an official capacity only applies to lower-ranking IMF officials (Section 19(a)). He considered invoking immunity and decided not to (well before he could have know anything about the complainant’s past and connections). This keeps getting misreported in the US media.

53. Anon: That is not true. Under Article 6, Section 21 of the 1947 Convention on the Privileges and Immunities of the Specialized Agencies, he was granted full immunity from prosecution in all countries as head of the IMF. Immunity restricted to acts performed in an official capacity only applies to lower-ranking IMF officials (Section 19(a)). He considered invoking immunity and decided not to (well before he could have know anything about the complainant’s past and connections). This keeps getting misreported in the US media.

    This is not misreported. You are incorrect. The US is not a party to that treaty.

    See: http://opiniojuris.org/2011/05/17/why-has-dsk-not-yet-asserted-immunity-because-he-can%E2%80%99t/

54. Karen: In the US, we impose harsh penalties for violent crimes

    But here we are talking about meting out punishment before the crime has been tried in a court of law. Which is something quite different from discussing what the actual sentence should be after a conviction.

    @Kristen J: The opiniojuris post seem very convincing. I think the information Anon based his post on was probably from the BBC: http://www.bbc.co.uk/news/world-us-canada-13412092

55. piny: And the first person caught out in a lie was the prominent politician who claimed he had been at lunch when he was actually having allegedly consensual sex with the accuser.

    You are conflating two statements here. He initially claimed not to have had sexual contact with the complainant. That was a lie. He also claimed he had had lunch with his daughter at the time the investigators then thought the alleged assault occurred. That turned out to be true, and the investigators revised their timeline for the assault. I also see no relevance to who the first person who got caught lying was. Both DSK’s lie (we know of only one so far) and the complainants lies (of which there were many, some pertinent, some not) have to be taken into account by the prosecution when they decide whether to proceed with the case (the standard for that is also absence of reasonable doubt).

56. Dude, if you know you did something half an hour after the police claim you did something, it’s a lie to say you could not have done that thing. “I have an alibi for that time,” without, “…But while we’re on the subject, I actually was having sex with that lady shortly afterward,” is a big fat lie by omission. His initial story wasn’t, “Your timeline is inaccurate.” It was, “I’m innocent and this timeline proves it.” Both the flat-out lie and the intentionally misleading statement about the sequence of events contributed to his false account.

    And these revelations–that the lunch story was a lie and, oops, I guess I did have sex with her–found its way before public opinion long before any inconsistencies on her part. And yet, who’s the liar who cannot be trusted? Not the accused rapist.

57. piny: And these revelations–that the lunch story was a lie and, oops, I guess I did have sex with her–found its way before public opinion long before any inconsistencies on her part. And yet, who’s the liar who cannot be trusted? Not the accused rapist.

    Codswallop! First, the lunch story was not a lie – he had lunch at the time he said he did. The investigators initially thought that the alleged assault occurred during that time. Upon confirming that he was indeed at lunch when he said he was, they went back to their timeline and concluded that the assault must have happened earlier than they had initially thought. If DSK had assaulted her at this earlier time, would it have been misleading of him to say he couldn’t have done it at the time the investigators were asking him about, because he was at lunch? Yes, clearly – but we don’t know if he in fact assaulted her. So the only confirmed lie from DSK is his initial denial of sexual activity.

    Second, until the latest round of revelations, DSK was widely assumed to be guilty, not only in the feminist blogosphere, but in the mainstream media (with some pretty loathsome anti-French attitudes also showcased by the right wing press). If the case were to go to trial, his lies and omissions (and possibly his previous reputation for improper sexual conduct) would count against him before the jury. Now we know that neither of them can be trusted – and since this is a case with equivocal physical evidence that relies crucially on the complainant’s testimony, it’s simply no longer one in which the defendant can be found guilty beyond a reasonable doubt. If the prosecution itself has reasonable doubt, it is their duty to dismiss, which will probably happen before long.

    Of course everyone can still have their gut feelings about whether he did it or not (my own guess is that he did, for what it’s worth). But since there is reasonable doubt, the just course of action is that he be let go. His inevitably impending release is justice in action.

    The only real discussion left is whether the prosecution’s actions in pushing for a quick arrest and indictment, asking that DSK be remanded, etc., are open to justified criticism. It’s something reasonable people can disagree on, but that the whole matter has rubbed many Europeans the wrong way is not shocking or surprising.

58. Anon: You are conflating two statements here. He initially claimed not to have had sexual contact with the complainant. That was a lie. He also claimed he had had lunch with his daughter at the time the investigators then thought the alleged assault occurred. That turned out to be true, and the investigators revised their timeline for the assault. I also see no relevance to who the first person who got caught lying was. Both DSK’s lie (we know of only one so far) and the complainants lies (of which there were many, some pertinent, some not) have to be taken into account by the prosecution when they decide whether to proceed with the case (the standard for that is also absence of reasonable doubt).

    Right but the issue here is that DSK’s lies don’t involve lying under oath and evidence tampering. Moreover, a defendant is not required to give incriminating testimony. That’s a fundamental civil right in the US, regardless of guilt or innocence.

    The issue is not that the woman has ever told a lie. The issue is that she has told lies indiscriminately under oath both in this case and in others, and appears to have tampered with the crime scene. Given that the accuser returned to the crime scene to “clean” it, the physical evidence is thrown into question, and given that the accuser has lied under oath repeatedly, her sworn testimony is also basically worthless.

    This says nothing at all about what actually happened in that hotel suite. And it’s very unfortunate that the legal protections we have decided that those accused of a crime deserve in the US make it difficult to successfully prosecute rape cases. At the same time, these are not legal protections designed to keep rape victims down. These are legal protections designed to protect the integrity of the justice system, instead of handing justice over to sealed kangaroo courts.

59. Goddamn I will feel dirty if I have to post the text of the fifth amendment here to make a point.

60. Anthea: As the head of IMF, DSK is immune from prosecution in all countries (different for rank and file members), and he tacitly waived his immunity by submitting to forensic tests – that much we have to acknowledge (see BBC article here: http://www.bbc.co.uk/news/world-us-canada-13412092). According to the same article, the fact that he was in the US as a private citizen was immaterial had no effects on his immunity.

    Of course, I’d be interested if you have information to the contrary.

    Well, your link doesn’t go anywhere, but here’s another one with information to the contrary.

    Long story short: to the extent the head of an international organization is granted diplomatic immunity, it is due to being on official business. DSK was on personal business. According to this article,

    Please respect FT.com’s ts&cs and copyright policy which allow you to: share links; copy content for personal use; & redistribute limited extracts. Email ftsales.support@ft.com to buy additional rights or use this link to reference the article – http://www.ft.com/cms/s/0/418f6d50-7f1a-11e0-b239-00144feabdc0.html#ixzz1R403kasf

    The IMF’s articles of agreement say that its officials “shall be immune from legal process with respect to acts performed by them in their official capacity except when the fund waives this immunity”.

    Full diplomatic immunity is granted to those who are representatitves of a government, and the IMF is not a government.

61. matlun: But here we are talking about meting out punishment before the crime has been tried in a court of law.

    What punishment is that? Being denied bail and allowed to live in a posh house rather than Rikers Island while awaiting trial? And then granted bail once the prosecution decides that its case isn’t very strong due to credibility problems with the main witness?

62. @zuzu: My comment was referencing the discussion with perp walk and the aggressive publicity. Anyway: We were discussing the situation before sentencing, which made the previous comment (regarding US sentencing guidelines) a non sequitur.

63. Agree with the OP, for the most part. A prosecutor doesn’t get to choose the cases that walk in the door. At the outset, the DA had a complaining witness and probable cause. The defendant was a powerful citizen of a foreign country that doesn’t extradite its citizens, and has shielded rapists in the past, who was getting onto an airplane to leave. They couldn’t control either getting the case as they did or it going bad the way it did. When the exculpatory evidence came out, they had the responsibility to turn it over the defense and to the court, where it was going to leak regardless (and given the fact that the indictment was based on perjured testimony to the grand jury… it may have to be quashed as well, no getting around that going public). This article seems to indicate that the relationship between the DA and the accuser had broken down pretty seriously as the case turned: http://nyti.ms/m7COeU

    Regarding the remarks about DSK’s sex/race/class, there’s an argument that arguably all worked against his interests here. It’s the phenomenon Tom Wolfe called “The Great White Defendant” back in the 1980’s in The Bonfire of the Vanities: the depressing norm of the criminal justice system is in routinely imprisoning African-American and Latino defendants for factually straightforward crimes such that prosecutors often have both a personal and political stake in pushing hard cases that demonstrate otherwise. The optics of this case were such, rich foreign government minister rapes poor immigrant worker, that it would have looked pretty good for Vance politically if the case had been prosecutable and he’d been able to secure a conviction.

    Regarding the perp walk, it often seems to be an East Coast, and specifically New York City, phenomenon. Wikipedia ties it to Giuliani’s prosecution of white-collar defendants in the 1980s: http://en.wikipedia.org/wiki/Perp_walk. I have not seen it happen much on the West Coast at all. One thought: the design of court buildings, police stations, and jails has an impact. The architecture on the East Coast is older and was designed in an era before automobiles and television cameras. From what I’ve seen in California, defendants here are typically transported in and out of jails and courthouses on buses through secure “sally-port”-type gated garages away from the main entrance, such that there’s little opportunity for looky-loos or the media to get a look at anyone, and they move through the courthouses through a sort of maze of hallways and holding cells behind the courtrooms controlled by the deputies that is completely segregated from the public, something that minimizes any opportunity for contact of any kind between in-custody defendants and anyone other than their lawyer (the local sheriff’s office here is also very tough about anyone trying to communicate with in-custody defendants, supposedly for security reasons).

64. Karen: *Law Nerdiness: “rape” is no longer the real name of the crime. I believe NY adopted most of the model penal code which names the crime “sexual assault.” This is important, because it emphasized the violent nature of the crime.

    Law Nerdiness nitpicking: That was actually incorrect. As far as I can see it is only “rape” according to NY law if there is PIV penetration. “Sexual assault” does not appear to be the actual name of a crime in NY.
    According to wiki DSK has been charged with
    * two charges of “criminal sexual acts”
    * one charge of “attempted rape”, and
    * one charge of “sexual abuse”
    (+ some misdemeanor offenses)

65. “Right but the issue here is that DSK’s lies don’t involve lying under oath and evidence tampering. Moreover, a defendant is not required to give incriminating testimony. That’s a fundamental civil right in the US, regardless of guilt or innocence.”

    No, he’s not required to incriminate himself. But if he lies to the police and the public, it’s fair to say that he has little credibility–that he is dishonest and uncooperative. And it’s also entirely fair for police and prosecutors to take both traits into account when deciding whether his behavior is suspicious or not. And his lies are arguably a lot more directly related to the case itself–he initially denied that the encounter even happened, and only changed his story when he was caught out. And it’s fair to point out that an accused rapist who lied is not thereby branded a liar, whereas an alleged victim who lied is branded a liar.

66. “Codswallop! First, the lunch story was not a lie – he had lunch at the time he said he did. The investigators initially thought that the alleged assault occurred during that time. Upon confirming that he was indeed at lunch when he said he was, they went back to their timeline and concluded that the assault must have happened earlier than they had initially thought. If DSK had assaulted her at this earlier time, would it have been misleading of him to say he couldn’t have done it at the time the investigators were asking him about, because he was at lunch? Yes, clearly – but we don’t know if he in fact assaulted her. So the only confirmed lie from DSK is his initial denial of sexual activity. ”

    No. No, that’s not how this works. Take another example. You’re arrested and charged with stealing a car. The police insist that you hotwired your neighbor’s automobile at ten in the morning and went joyriding. You know that you borrowed the car from him at eleven and went to the supermarket. You tell them that you could not possibly have taken the car because you were at church until ten-thirty. You don’t explain that you did take the car half an hour later.

    Do you see how misleading that is?

    According to his own version of events, he knew perfectly well that he had had a sexual encounter with a hotel worker–that the police were entirely correct on that count, only a little mistaken in the time sequence. Do you think it likely that he believed the two encounters, definite and impossible, to be entirely unrelated? That they were probably referring to some other woman who had been sexually assaulted by some other man in his hotel room right around the same time he happened to have been having consensual sex with a hotel worker?

    He lied. He used the lunch alibi to cast doubt on the fact of the encounter itself, not on whether or not it was consensual. It was not technically dishonest for him to say, “I was at lunch when you say that assault occurred,” but only in the most technical way. He attempted to mislead the police and manipulate their investigation. That’s his constitutional right, but it is also dishonest. And it makes him a liar.

67. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

68. @JDP,

    That’s pretty much irrelevant on these facts. You don’t have to testify, but if do make a false or misleading statement, that statement may be used against you. IF he stated that he did not rape the woman BECAUSE he was at lunch with his daughter. That’s a lie. He could not have been compelled to make it, but he did.

69. JDP:
    nor shall be compelled in any criminal case to be a witness against himself

    Dude… I know you think you’re making a point, but you’re not. He lied. The fact that it wasn’t illegal for him to do so doesn’t change that.

    Also, does anyone have any idea why my reply to Chava has been awaiting moderation for a day now? If it ever actually shows up nobody will read it; the discussion has long since moved on. This is mildly frustrating. Anything specific I did wrong?

70. Things just get caught sometimes; Jill’s a busy lady and the filter doesn’t always work perfectly.

    Georg: Dude… I know you think you’re making a point, but you’re not. He lied. The fact that it wasn’t illegal for him to do so doesn’t change that.

    Also, does anyone have any idea why my reply to Chava has been awaiting moderation for a day now? If it ever actually shows up nobody will read it; the discussion has long since moved on. This is mildly frustrating. Anything specific I did wrong?

71. Georg: Dude… I know you think you’re making a point, but you’re not. He lied. The fact that it wasn’t illegal for him to do so doesn’t change that.

    Also, does anyone have any idea why my reply to Chava has been awaiting moderation for a day now? If it ever actually shows up nobody will read it; the discussion has long since moved on. This is mildly frustrating. Anything specific I did wrong?

    It happens. The mods are part-time volunteers. I’ve been commenting here for years and it just happens to everyone from time to time.

72. I used to blog here, and I have gotten caught in the mod cue.

    Dude… I know you think you’re making a point, but you’re not. He lied. The fact that it wasn’t illegal for him to do so doesn’t change that.

    Thanks. And, look, like I’ve already said, I do agree that he has the right to lie. He does not have to volunteer any information to the police or assist them with their investigation. He is entitled to a vigorous defense. (Just as she is entitled to the protection of the law, even if she has lied under oath in other legal proceedings.) But we in turn have every right to use that dishonesty to evaluate his credibility–especially in terms of his revised version(s) of events. And the prosecuting attorneys have every right to label him suspect and uncooperative when he gets caught lying.

    I also appreciate what you’ve said about perp walks, etc; I don’t carry a brief for Dateline justice. I just don’t think I agree with what you’ve said about public outrage. I think it’s related to misogyny; I think the conspiracy theories etc. rely on a certain level of willful disregard for the Occam’s razor of sexual assault in a culture of impunity. Nobody here or there seems particularly outraged that she’s already been convicted of prostituting herself in the court of public opinion, even though there’s no evidence that she was a prostitute.

73. Kristen J.:
    @JDP,

    That’s pretty much irrelevant on these facts.You don’t have to testify, but if do make a false or misleading statement, that statement may be used against you.IF he stated that he did not rape the woman BECAUSE he was at lunch with his daughter.That’s a lie.He could not have been compelled to make it, but he did.

    This was specifically related to the claim that DSK had lied by omission.

    The point of the American justice system is that the prosecution must believe that they can present sufficient evidence to convict without trying to extract a confession from the defendant under duress. There are very good reasons for that, and when the US government has strayed from that constitutional principle, this has almost always resulted in extremely questionable convictions, especially with respect to military tribunals, and with respect to human rights atrocities like Guantanamo Bay.

    I can fully appreciate the anger here and the belief that the justice system is standing in the way of justice rather than meting it out. I also recognize that due to the nature of rape as an act of oppression and kyriarchy, there are a whole variety of issues of privilege involved. I think some American practices WRT rape trials (e.g. the moratorium on releasin the victim’s name) are cognizant of that, whereas others (e.g. the typical slut-shaming shit) are deeply problematic and need to be addressed.

    But this isn’t a question about approaches or practices. This is a question about what evidence is admissible in court and where the burden of proof is. These issues are fundamental to the justice system and exist to offer constitutional protection against judicial excess. I don’t think it is acceptable to diminish these fundamental civil rights in order to protect the appearances of foreign dignitaries or to mete out vengeance without proof that justice is actually being done.

74. piny: He lied. He used the lunch alibi to cast doubt on the fact of the encounter itself, not on whether or not it was consensual. It was not technically dishonest for him to say, “I was at lunch when you say that assault occurred,” but only in the most technical way.

    Of course, you don’t know whether this is how it actually happened. They may well have just asked him “Where were you at such-and-such a time?” and he could have said “At lunch.” They may not have even told him about the allegations at that point. Or he may have been misleading them. In that case, this could have been used against him (and probably will be, if the case ever goes to trial, which is unlikely now for good reason). The prosecutors have not to date said which of these versions is correct.

    What we do know is that he lied about whether he had a sexual encounter with the complainant, and the complainant lied about a large variety of things: some under oath, some directly relevant to the case, some not. So they are both liars. A plausible story can be given for both of them about why they might have lied without overly ill intent (the complainant might have merely been confused about the aftermath of the assault, she might merely have been worried about her asylum status; DSK might have merely been wishing to avoid embarrassment about a consensual encounter). A plausible story can also be given for both of them about why they might have lied with malicious intent (the complainant might have been hyping up an invented story with an eye to financial gain; DSK might have been trying to get away with sexual assault). Given the equivocal physical evidence, all this amounts to reasonable doubt, and it is proper that the case be dismissed. It probably will be soon.

    It’s all well and good for any of us to think that he did it and is getting away with it. But that does not mean justice isn’t being done. We do not know that he did it beyond a reasonable doubt, and justice sometimes requires that guilty people get away it.

75. piny: Just as she is entitled to the protection of the law, even if she has lied under oath in other legal proceedings.

    She has also lied under oath in this legal proceeding.

76. Cool civil rights explanation, bro.

    Nobody here has suggested any of the following:

    1) That DSK has the legal obligation to incriminate himself.
    2) That DSK has the legal obligation to assist the prosecution in forming their case.
    3) That DSK has the legal obligation to assist the police in investigating him.
    4) That DSK even has the moral obligation to do any of these things.
    5) That any involved authorities have the right to force him to do any of these things.
    6) That, absent a strong case, the involved authorities have the professional obligation or the legal right to prosecute him.

    This is what I’m saying: A lie by omission is a lie. This wasn’t merely withholding information, either, although the Fifth Amendment holds no distinction here. It was withholding information in a way meant to mislead investigators and the public about what could have happened. “I wasn’t there at that time,” is different from, “I couldn’t possibly have committed the crime because I was at lunch when you say the crime happened.”

    Because he told a lie, his credibility is questionable–especially as regards his subsequent versions of events. And just as his lies are protected for the sake of his own self-interest, so would lying about his guilt be entirely plausible. The authorities may question his credibility when they make his behavior a matter for investigation, or his culpability a question of law. Neither of these judgments is irrational or a violation of his civil rights. It is perfectly legal, for example, when a prosecutor questions a defendant on the stand about the five stories he fed the police. We the spectators may question his credibility for our own private purposes–just as we might, for example, take his legal decision to refuse to return to the states as clear evidence of his guilt. That’s not unreasonable, and it’s not fascist.

    And to go back to the whole sexism thing: the fact that he lied doesn’t seem to have made him a big fat liar, whereas the fact that she lied makes her a liar, a thief, and a whore. And it seemed like she was being called a liar, a thief, and a whore before there was any evidence that she had told any lies at all.

77. piny: And to go back to the whole sexism thing: the fact that he lied doesn’t seem to have made him a big fat liar, whereas the fact that she lied makes her a liar, a thief, and a whore. And it seemed like she was being called a liar, a thief, and a whore before there was any evidence that she had told any lies at all.

    If it weren’t for the fact that the consensus in the US media, mainstream and otherwise, was that he was guilty, guilty, guilty, with lots of delight about the dirty lecherous frog getting his comeuppance to be had by all, this might sound more convincing.

    Sure, there were immediately true believers without any inside knowledge concocting all sorts of scenarios to excuse him. And there are true believers without any inside knowledge here, among other places, now concocting all sorts of scenarios to excuse the complainant. People view the world through their ideological lenses! Stop the presses!

78. Of course, you don’t know whether this is how it actually happened. They may well have just asked him “Where were you at such-and-such a time?” and he could have said “At lunch.” They may not have even told him about the allegations at that point. Or he may have been misleading them. In that case, this could have been used against him (and probably will be, if the case ever goes to trial, which is unlikely now for good reason). The prosecutors have not to date said which of these versions is correct.

    That’s really very unlikely, even if we assume he had no idea why the police might want to speak with him about what he was doing around lunchtime. The alibi timeline question was in the news for a day or so at least; it’s not possible that his attorneys, who were certainly immediately involved, didn’t know what the real question was and that his alibi was meaningless. This was intentional. And again: totally legal! But dishonest.

79. piny: That’s really very unlikely …… This was intentional.

    From probabilities to certainty in one magical leap!

80. It is just barely possible that things happened the way you suggest, but it is extremely unlikely given the way the stories played out, as well as the usual behavior of attorneys, investigators, and wealthy connected men when they get arrested. Oh, and the fact that he did deny having sex with that woman. I am certain that he had the opportunity to learn about and respond to these accusations. I am certain that he was kept more current than the staff of AmericaBlog. So, yes, I do feel confident enough to say that this explanation is implausible, and that he intentionally concealed the sequence of events in order to protect himself.

81. piny:
    And to go back to the whole sexism thing: the fact that he lied doesn’t seem to have made him a big fat liar, whereas the fact that she lied makes her a liar, a thief, and a whore.And it seemed like she was being called a liar, a thief, and a whore before there was any evidence that she had told any lies at all.

    If by “before there was any evidence that she had told any lies at all” you mean “after the prosecution filed paperwork with the court and CCed the defense that the witness had admitted to perjuring herself WRT this case and in other cases” then sure.

    Also perjury is not lying. Perjury is delivery of false testimony under oath within the context of a legal proceeding. No one credible is saying that telling one little lie is enough to make your credibility questionable in a court of law. What people are saying is that no court can credibly admit testimony from someone who has admitted to repeatedly falsifying legal testimony in the past, and if they did, no jury would find that convincing enough to convict.

    Don’t conflate “lying” and “perjury.”

82. It’s still

    “I didn’t have sex with that woman (but I actually did)”

    vs.

    “I say under oath that I hid and then immediately reported the crime (but I actually went back to the scene and waited a while).”
    “I was gang-raped in my home country (but I actually wasn’t).”
    “I say under oath that all sorts of horrible things happened to me in my home country (but they really didn’t).”
    “I say under oath that I have two children, so I should get more benefits (but I actually have only one).”
    “I’m piss-poor (but I actually have $100,000 in my bank account).”

    What’s most galling is that some people here are apparently willing to say that because she’s (allegedly) poor and from a crummy country, that’s just fine. Know what – I’m poor (I currently have $20 in my bank account and no credit, not $100,000) and I’m from a country that was at least as crummy as Guinea when I immigrated, and I don’t think any of these things are okay. It’s just not true of this case that an unreasonable standard of credibility is being applied to the complainant because she’s a poor woman of color. People who lie like this complainant has lied should not believed to the extent that anyone should go to prison on the weight of their words.

83. No, I’m referring to the people who called her a lying whore as soon as the case broke.

    And no, again, this is not restricted to lies she told under oath, either–she’s being attacked, for example, for talking to someone in prison. She’s not simply being referred to as “an accuser with less credibility.” She’s being called a lying, cheating whore. You keep trying to make this about the regrettable tension between the prosecution’s responsibility to the accuser and the prosecution’s responsibility to the accused. The New York Post is calling her a prostitute. Is that because she committed perjury, because she lied, or because she’s a woman who accused a man of rape?

84. piny: she’s being attacked, for example, for talking to someone in prison.

    For talking to someone in prison about financially profiting from the case.

    piny: The New York Post is calling her a prostitute. Is that because she committed perjury, because she lied, or because she’s a woman who accused a man of rape?

    It is because they claim to have a source with evidence of this. And they are a detestable right-wing rag that and may be pulling it out of their behinds. But until a few days ago, they were sliming DSK with matching enthusiasm. And not a fraction of people here who are upset about them calling the complainant a prostitute were upset enough to go on about it here when the New York Post splashed “Frog Legs It” over their cover cover and railed against DSK’s being released on bail.

85. matlun: @zuzu: My comment was referencing the discussion with perp walk and the aggressive publicity. Anyway: We were discussing the situation before sentencing, which made the previous comment (regarding US sentencing guidelines) a non sequitur.

    I’m familiar with pretrial/post-trial distinctions. I also know that poor people who can’t make bail wait for trial on Rikers Island in NYC, not in luxury homes. I also know that it’s not exactly a secret that the NYPD does perp walks or handcuff suspects.

    But, again, the complaint seems to be that he was treated like a common criminal and not given special treatment.

86. JDP: This was specifically related to the claim that DSK had lied by omission.

    The jury will hear his statements as well as the forensic timeline and determine for themselves whether his statement was truthful and whether he is credible. Again, this has nothing to do with the Fifth Amendment. The Fifth Amendment just says you don’t have to speak. If you lie, obfuscate, or mislead with your *speech* then juries may determine that you are untrustworthy based on the statements you actually made.

87. Anon: That is not true. Under Article 6, Section 21 of the 1947 Convention on the Privileges and Immunities of the Specialized Agencies, he was granted full immunity from prosecution in all countries as head of the IMF. Immunity restricted to acts performed in an official capacity only applies to lower-ranking IMF officials (Section 19(a)). He considered invoking immunity and decided not to (well before he could have know anything about the complainant’s past and connections). This keeps getting misreported in the US media.

    That’s lovely, but a treaty only binds those who sign it, and the United States never signed that convention, much less ratified it.

    So, no, he doesn’t actually have diplomatic immunity under that convention in the US. And to the extent he did have diplomatic immunity, it was only due to being on official business, which raping a hotel maid is not.

88. Kristen J.: The jury will hear his statements as well as the forensic timeline and determine for themselves whether his statement was truthful and whether he is credible.Again, this has nothing to do with the Fifth Amendment.The Fifth Amendment just says you don’t have to speak.If you lie, obfuscate, or mislead with your *speech* then juries may determine that you are untrustworthy based on the statements you actually made.

    At this point, a jury’s not going to be convened because the prosecution doesn’t think they have a case.

89. No, I don’t “prefer” one or the other. I just reject the idea that one is better at all things or that mine is more “barbaric.” My country’s justice system is all kinds of fucked up–and I don’t make it my business to go around passing judgement on others’. But in this case, Europe has been sneering/looking down their noses at the US justice system–which, on the balance, seems rather hypocritical.

    Georg: Look, if you’re comparing two entire continents it’s inevitable that either side will occasionally make arrests that people on the other side will consider excessive or abusive. You handcuff and arrest people for jaywalking? You handcuff and arrest teenagers for shoplifting? You handcuff and perp walk ten-year-old children as sex offenders? What are you, completely bonkers?

    On balance, it’s a lot harder to get arrested and detained in most parts of Europe than in the US, especially if you’re poor or a minority. The consequences of arrest or short-term detention tend to be lot milder, especially if you’re poor or minority. There are much better protections against prosecutorial overreach, especially if you’re poor or minority, and against being wrongly convicted just because you’re broke and your court-appointed defender is incompetent.

    Are you telling me you prefer a system that needlessly upends millions of lives every year and keeps tens of millions of people in hereditary destitution just because it also manhandles a DSK or two every couple months? All those black kids we railroaded were totally worth it because we also seriously inconvenienced a few boorish lacrosse players?

90. Anon, enough with the lies about the nature of diplomatic immunity as it applies to the IMF in the US. From the Financial Times:

    “The diplomatic immunity of an IMF official is more limited than that of many diplomats, however, in that it only covers actions taken in their official capacity.”

    And the Washington Post,
    “John B. Bellinger III, who served as State Department legal adviser during the Bush administration, explained in an interview that there is a U.N. convention on privileges and immunities for international agencies that most countries have ratified. It gives the heads of U.N. agencies broad immunity in the countries where they are based.

    But the U.S. government never became a party to that treaty. Employees of international agencies are covered by a U.S. statute that gives only limited immunity.”

    It’s rather perplexing that I’ve corrected you in the past, and yet you continue to maintain falsehoods, Anon. Enough already.

91. Anon:
    It is because they claim to have a source with evidence of this. And they are a detestable right-wing rag that and may be pulling it out of their behinds. But until a few days ago, they were sliming DSK with matching enthusiasm. And not a fraction of people here who are upset about them calling the complainant a prostitute were upset enough to go on about it here when the New York Post splashed “Frog Legs It” over their cover cover and railed against DSK’s being released on bail.

    A valid point. If there was silence when the press were passing judgements on DSK, proclaiming his guilt and calling him names, and now there is outrage because the same press is turning on the accuser, then how is this different to those who suspected the accuser from get go? Or those that talked about DSK being “set-up”?

    zuzu:
    But, again, the complaint seems to be that he was treated like a common criminal and not given special treatment.

    That is incorrect. If you’re talking about the reaction in Europe (France in particular), it is that it is illegal for someone charged (no matter your status) to be made to do the “perp walk”, and they are applying their standard to this case. It is considered prejudicial to a case, in the sense that it sends a powerful message that the arrested is indeed guilty and there is solid evidence to back this up.

    The real question here should be why details are being leaked to the press by the prosecution. This is the puzzling thing to Europeans (and I am using the term loosely). This, and the talk of the case possibly not even going to trial (esp. since there is talk here of there being compelling evidence that DSK lied to the police and evidence of physical assault consistent with rape/sexual violence).

    If there is a silver lining in this whole incident is that it has contributed to the debate in French society on (and soul searching on topics of) sexism and machismo, among other related issues. Nevertheless, I doubt the French feminists would support some posters here who declare that DSK is guilty in this particular case no matter what happens.

92. The last sentence is supposed to read:

    Nevertheless, I doubt the French feminists would support some posters here who declare that DSK is guilty in this particular case no matter what happens i.e. if he is not found guilty for whatever reasons.

93. zuzuit’s not exactly a secret that the NYPD does perp walks or handcuff suspects. But, again, the complaint seems to be that he was treated like a common criminal and not given special treatment.

    No, absolutely not. The complaint is mainly that he was punished, through completely gratuitous public pillorying, without trial. The fact that you’re also doing this to other defendants is not seen as a justification very widely. Would it be OK for me to kick you in the shins if I can prove I’ve kicked other people in the shins before?

    Would you say it would be alright to torture a confession out of him? It’s pretty much the only way you’re going to get him convicted and you regularly torture people, especially foreigners, often on drastically flimsier evidence. Or perhaps you could just bury him in Gitmo with no charges. You do that too.

94. samanthab: Anon, enough with the lies about the nature of diplomatic immunity as it applies to the IMF

    A bit unfair – the BBC did report that he had immunity (as previously posted). I also originally trusted that report.

    The Opinio Juris link posted by Kristen J above seems to be a good treatment of the question.

    Another analysis

95. chava:
    No, I don’t “prefer” one or the other.I just reject the idea that one is better at all things or that mine is more “barbaric.”

    I agree with you that neiter system is fundamentally better than the other in all respects, or even in all important respects. I was mostly reacting to the fact that you used one single data point, some immigrants in handcuffs somewhere, to dismiss the fact that as a general rule Europe tends to be a lot more cautious about arresting people. Oh, and also a lot more careful about not needlessly heightening the public condemnation of people who hadn’t had their day in court yet. I’m not saying our system is superior, I’m just pointing out it arrests less.

    Your comment reminded me of the health care debate. Sure, the US has second-world life expectancies, third-world infant mortality, third-world access to contraception, and third-world teenage pregnancy rates… but look, the stupid smelly French have to wait up to several weeks for a hip replacement! Silly socialists!

96. Yes, because Europe wasn’t complicit in the last 10 years of extraordinary reditions at ALL. No sir, not one little bit.

    http://www.amnesty.org/en/news-and-updates/report/european-governments-must-provide-justice-victims-cia-programmes-2010-11-15

    Georg: No, absolutely not. The complaint is mainly that he was punished, through completely gratuitous public pillorying, without trial. The fact that you’re also doing this to other defendants is not seen as a justification very widely. Would it be OK for me to kick you in the shins if I can prove I’ve kicked other people in the shins before?

    Would you say it would be alright to torture a confession out of him? It’s pretty much the only way you’re going to get him convicted and you regularly torture people, especially foreigners, often on drastically flimsier evidence. Or perhaps you could just bury him in Gitmo with no charges. You do that too.

97. Anthea: The real question here should be why details are being leaked to the press by the prosecution. This is the puzzling thing to Europeans (and I am using the term loosely).

    Because that’s how it’s always done. That’s what the press does in a trial, find people who are willing to give them leaks and publish that information. It may not actually be coming from “the prosecution,” but there are a lot of people who know small bits of information that can be sought out and pieced together.

    Also, I seem to recall that there were a lot of leaks in the Amanda Knox trial, and that she was often paraded around as well. So I’m not sure why the complaints should be taken with anything but a grain of salt.

98. Georg: No, absolutely not. The complaint is mainly that he was punished, through completely gratuitous public pillorying, without trial. The fact that you’re also doing this to other defendants is not seen as a justification very widely. Would it be OK for me to kick you in the shins if I can prove I’ve kicked other people in the shins before?

    So, again, you’re complaining that he didn’t get special treatment due to his status. You’re complaining that he wasn’t treated any differently than any other accused rapist in NYC. Yet you haven’t made a case for why he should be other than huffing that the Europeans don’t like it and would never treat a suspect that way, especially if he’s an important person. Maybe he ought to confine his misadventures to Europe, then.

    I note that you don’t argue that the pretrial procedure is unfair to *every* defendant, just to DSK.

    It’s absolutely bog-standard that the press digs up details on pretty much any high-profile case, and I’m not limiting this to New York. Happens in Europe, too! Not all the information came from the prosecution, btw: there were a lot of interviews with employees, associates and others who knew DSK and knew about his reputation and some of his past actions that made this one all the more believable. Others have dug up details on the vulnerability of hotel maids to sexual assault.

    And the media covering this, btw, includes the European media. I haven’t monitored all their coverage, but presumably they’re going out and finding information themselves, not just tut-tutting about how *mean* the Americans are to DSK.

99. Georg: Would you say it would be alright to torture a confession out of him? It’s pretty much the only way you’re going to get him convicted and you regularly torture people, especially foreigners, often on drastically flimsier evidence. Or perhaps you could just bury him in Gitmo with no charges. You do that too.

    You seem to be mistaking the US military for the NYPD. I don’t blame the Paris police for setting off nuclear bombs in Tahiti.

100. There’s a case against him in France now, as well:

     http://www.bbc.co.uk/news/world-europe-14018727

101. Happy 4th people!

102. zuzu: Because that’s how it’s always done.That’s what the press does in a trial, find people who are willing to give them leaks and publish that information.It may not actually be coming from “the prosecution,” but there are a lot of people who know small bits of information that can be sought out and pieced together.

     So? Because it is always done, it is accepted for all cases? Even in high-profile ones where it is absolutely crucial that evidence is solid, where the defense is top notch, and any leaked info. can be prejudicial to the case, esp when it will be tried by a jury? And if I remember correctly, an NYT article even had details of the accuser sitting on the floor and refusing to answer questions (for example) which suggests the leaks are coming from the prosecutor’s office or those involved in the investigation. If anything, there should have been extra care, precaution, and procedures to ensure leaks are kept to a minimum, and that there are consequences for any leaks.

     Here’s what Guardian said about the leaks and letter from the prosecution:

     “In the UK, much of this information would be deemed sub judice and not offered up for public consumption for fear of damaging the chances of a fair trial.”

     zuzu:

     Also, I seem to recall that there were a lot of leaks in the Amanda Knox trial, and that she was often paraded around as well.So I’m not sure why the complaints should be taken with anything but a grain of salt.

     Amanda Knox? Not familiar with the case even though I watch British TV (BBC channels mainly). And I don’t live in the UK. But I understand this case was followed in the US, UK and Italy only (other than that, nobody cared about Amanda Knox). But I don’t recall the case given any prominence on BBC. Any parading around that I saw on TV was when she was in the court.

     But when googled the name, I learnt that some prominent US people (e.g. Donald Trump) had criticised the Italian justice system and a senator/politicians or two (or maybe more) got involved as well. And apparently Americans were convinced of her innocence and that they did not have confidence in the Italian courts.

     Well, I guess when it comes to your own countryman or woman, your protection instinct just goes up by several notches when they are tried in foreign countries (and I mean generally of all people).

103. chava:
     Yes, because Europe wasn’t complicit in the last 10 years of extraordinary reditions at ALL.No sir, not one little bit.

     Yes, several European governments have allowed themselves to be strongarmed into aiding and abetting the renditions and, by extension, the torture, including some of the lethal torture. It’s disgraceful and I’m not trying to excuse it. However, in most of Europe there was a serious public outcry once these things became public. The renditions were halted. People were and still are being investigated. Even Merkel almost had to resign because she might personally have heard rumors about some Syrian black site at some point and didn’t act on them.

     The US didn’t just hand out overflight permit to the wrong people, the US actually tortured and detained indefinitely without charges, using US facilities and US personnel. The torture and the indefinite detention without charges are aggressively shielded against inquiry by the current administration; at least the detention is actually still going on and actually still openly sanctioned. Both torture and detention are also supported by the judiciary, leading media personalities, and a solid majority of the electorate.

     Please do keep lecturing me about how the people on my continent should want prisoners treated.

104. zuzu: So, again, you’re complaining that he didn’t get special treatment due to his status.You’re complaining that he wasn’t treated any differently than any other accused rapist in NYC.[..] I note that you don’t argue that the pretrial procedure is unfair to *every* defendant, just to DSK.

     What? Now you’re pretending to be dense. The pretrial “procedure” is unfair to every defendant, that’s exactly what I said, and I said it in the very paragraph you just quoted in your reply. I drew a parallel between making defendants, any defendants, do the perp walk and kicking them in the shins. Seriously, did you even read my comment?

     I’d really be surprised if we actually disagreed on this. You don’t honestly think I should be allowed to kick you just because I’ve kicked others in the past, right?

     Suppose you go visit my brother in Pakistan, get accused of some violent crime, and local police rough you up some in the process of arresting you. Should the courts get to dismiss your complaint just because everybody knows Pakistani cops beat up people all the time? How would you react if someone claimed you just wanted special treatment for your entitled privileged self?

105. chava:
     There’s a case against him in France now, as well:

     Let’s just hope they can make this one stick.

106. Now you’re pretending to be dense. I have no personal bone to pick with how your continent treats those it sees as criminals (well, I supposed if I was a citizen I might have some words). I have a *problem* with the hypocrisy of claiming your continent is somehow cleaner than the driven snow while America is horribly barbaric (really, we haven’t gotten over this yet?)

     Georg: Yes, several European governments have allowed themselves to be strongarmed into aiding and abetting the renditions and, by extension, the torture, including some of the lethal torture. It’s disgraceful and I’m not trying to excuse it. However, in most of Europe there was a serious public outcry once these things became public. The renditions were halted. People were and still are being investigated. Even Merkel almost had to resign because she might personally have heard rumors about some Syrian black site at some point and didn’t act on them.

     The US didn’t just hand out overflight permit to the wrong people, the US actually tortured and detained indefinitely without charges, using US facilities and US personnel. The torture and the indefinite detention without charges are aggressively shielded against inquiry by the current administration; at least the detention is actually still going on and actually still openly sanctioned. Both torture and detention are also supported by the judiciary, leading media personalities, and a solid majority of the electorate.

     Please do keep lecturing me about how the people on my continent should want prisoners treated.

107. You went from claiming DSK shouldn’t have been subjected to a perp walk because he had “more to lose” than a poor, unknown man to saying that the perp walk and press are like being beaten and tortured in a Pakistani prison? Way to move the goalposts.

     There was no way to keep this case under wraps. DSK’s arrest would have been found out. The perp walks are humiliating for everyone and yes, a bad thing on the whole. The press coverage–sucks, but I believe in a free press.
     For me, the bottom line is that he was leaving the country and we suspected he had raped one of our citizens, however much less she “had to lose.” Perp walk or no perp walk, and impractical as it was for international diplomacy, that arrest–and the ensuing turnover of evidence to the defense–made me proud to be American.
     /embarrassing display of patriotism. happy 4th.

     Georg:

     Suppose you go visit my brother in Pakistan, get accused of some violent crime, and local police rough you up some in the process of arresting you. Should the courts get to dismiss your complaint just because everybody knows Pakistani cops beat up people all the time? How would you react if someone claimed you just wanted special treatment for your entitledprivileged self?

108. Anthea: So? Because it is always done, it is accepted for all cases? Even in high-profile ones where it is absolutely crucial that evidence is solid, where the defense is top notch, and any leaked info. can be prejudicial to the case, esp when it will be tried by a jury? And if I remember correctly, an NYT article even had details of the accuser sitting on the floor and refusing to answer questions (for example) which suggests the leaks are coming from the prosecutor’s office or those involved in the investigation.

     Um, the prosecution has to share all of its information with the defense.

     All of it. It’s the right of the accused to have all that information. This includes reports which would indicate where the accuser sat while she was being questioned.

     What makes you so sure that it’s the prosecutor’s office that’s leaking this information? Can you think of a reason why the defense might want to leak information which makes the accuser look like a liar in a case where it’s all he-said, she-said?

     As for it always being done: I mention that because the Europeans here seem to be getting all huffy mostly because DSK wasn’t given special treatment. And you’re not really disabusing me of that notion.

109. Agreed, zuzu, except for the sweeping conclusion about “The Europeans.” Actually, there’s no such thing. And I wouldn’t talk about “the Americans” either…

110. Shh! I’m poking them.

111. 🙂

112. zuzu: Um, the prosecution has to share all of its information with the defense.

     All of it.It’s the right of the accused to have all that information.This includes reports which would indicate where the accuser sat while she was being questioned.

     What makes you so sure that it’s the prosecutor’s office that’s leaking this information?Can you think of a reason why the defense might want to leak information which makes the accuser look like a liar in a case where it’s all he-said, she-said?

     As for it always being done: I mention that because the Europeans here seem to be getting all huffy mostly because DSK wasn’t given special treatment.And you’re not really disabusing me of that notion.

     Who said anything about the prosecution not sharing the information with the defense? I was talking about the leaks which seem to be originating mainly from the prosecution, unless of you’re saying that the press is blatantly lying about the source being prosecution/investigating officers, quoting them, and saying (or at least giving a strong impression) they spoke to sources from prosecutor’s office.

     I understand that is how it is always done in NY (or maybe throughout the US), but surely questioning why no exceptions are made to sensitive high profile cases is not so strange.

     And did you even read the quote from Guardian? Because that would apply to both the defense and the prosecution. And the quote was also to give you an understanding of the approach taken in other places. (yes, I now understand you don’t give a monkey’s…).

     Finally, I (and the majority of Europeans) never said DSK should be given special treatment (by which I assume you meant because he was rich and white and male). Also how on earth do you tell the Europeans apart here with a exception of a couple? Because we mention living in Europe or what the norms in France are?

     Anyway, if you want to hold on to your view that Europeans are asking for special treatment for DSK, knock yourself out. Guess that is not too dissimilar to some (or is it most?) Americans’ view of Europe (in general) of being a place with socialized medicine and death panels and soft crime policies (despite what the statistics say).

113. Anthea: Who said anything about the prosecution not sharing the information with the defense? I was talking about the leaks which seem to be originating mainly from the prosecution, unless of you’re saying that the press is blatantly lying about the source being prosecution/investigating officers, quoting them, and saying (or at least giving a strong impression) they spoke to sources from prosecutor’s office.

     These are unnamed sources. They’re usually called “someone with knowledge of the investigation.” That doesn’t mean they’re from the prosecutor’s office. If you have the investigator’s reports in hand, you have knowledge of the investigation.

     Why would the prosecutor’s office leak information damaging to its own case? They have a much, much higher burden of proof; in fact, the defense doesn’t have to do a damn thing except create doubt about the prosecutor’s case in order to win. And look here, we have leaks of information that create doubt about the veracity of the main witness for the prosecution!

     Now, just *where* would that information be coming from?

     Also how on earth do you tell the Europeans apart here with a exception of a couple? Because we mention living in Europe or what the norms in France are?

     You’re the ones who either self-identify as European, or claim to be experts in what Europeans think, as if they all thought the same way. So are you now saying you’re *not* speaking for all Europeans?

     In any event, you seem to be blaming the prosecutors for the publicity circus, and by extension, the American government. Which betrays a lack of understanding of how things work here; first, it’s a local issue, not a federal one despite the involvement of someone who works for the IMF and statements by the State Department; second, you seem to think the press either is an arm of the state or gets all its information directly from prosecutors when it makes a hell of a lot more sense that the defense would be leaking information.

114. zuzu: Now, just *where* would that information be coming from?

     I find it hard to believe that you are not simply pretending here, but for anyone who might otherwise fall for your trick there:

     All the damaging information about the complainant comes from the prosecution Brady disclosure to the court, with the following exceptions:

     1. The claim that she discussed financial benefits of the case with an incarcerated person is attributed by the NYT to “two well-placed law enforcement officials.”

     2. The claim that she had received $100,000 in deposits by various persons, some with suspected of drug-related offenses, is attributed by the NYT to the same law enforcement officials.

     3. The claim in the New York Post that there is evidence that the complainant is a prostitute is attributed to a “source close to the defense.”

     So back to your question – why would the prosecution leak information damaging to their own case? First, the majority of the information wasn’t leaked. It was disclosed just like the law demands. Second, the rest of the information was probably leaked by the prosecution because they realize that they no longer have a viable case, or even actively disbelieve the complainant. Expect charges to be dropped within days.

115. I know the prosecution has to make disclosures; ISTR saying just that in my comment above. Nevertheless, the Brady disclosures don’t cover everything that’s being bandied about in the press. The letter is here. For example, there’s nothing in there about where the witness sat while being interviewed by investigators.

     Not everything in the prosecution’s file that’s been shared with the defense will have been filed with the court, and thus is not a matter of public record.

116. As I said, and you surely know, most of the reporting relies on what’s been published by the NYT, and the NYT explicitly says its sources are law enforcement officials, not the defence. The tenor of these leaks suggests that the prosecution is feeling they’ve been snookered by the complainant.

117. Anon,

     Law enforcement =/= prosecution.

118. In almost every high profile case there is, there are leaks on all sides of the case.

     It seems silly to pretend that these leaks are any different than leaks in that insane Anthony case in Florida, or leaks in the Lance Armstrong steroid investigation, or the leaks in the Lindsay Lohan investigations or the leaks in the Barry Bonds steroid investigation, or the leaks about Atlanta Pastor Eddie Long’s abuse settlement or the leaks about the NFL player’s lockout negotiations or the leaks in any other major media investigation or mediation or negotiation.

     In any case of interest in which 50+ people have access to confidential information, leaks happen. The idea that the leaks in the DSK case are special makes little sense.

     Should there be leaks? No.

     Are leaks in big cases routine? Yes.

     In any event, I think that the truth about whether the accuser worked as a prostitute and her actions after the rape are going to become clearer this week and I fear they aren’t going to make her look very good.

     As someone who does care about a victim’s ability to be believed, I hope that women’s rights advocates do not spend the week defending the accuser only to have many of the accusations made against the accuser proven correct.

     It will destroy the ability of the next woman to be believed and hinder the ability of women’s rights advocates to assist her. And this will all be directly relevant shortly because of the new charges.

     The US system is far more victim-friendly than the French system, and the last thing we need is for the French system to come out looking more fair and reasonable than the US way of doing things.

119. Jill, thank you for posting these very thoughtful posts on this case. I admire your integrity around this matter. I can’t tell you how much I appreciate you right now.

120. zuzu:
     Why would the prosecutor’s office leak information damaging to its own case?They have a much, much higher burden of proof; in fact, the defense doesn’t have to do a damn thing except create doubt about the prosecutor’s case in order to win.And look here, we have leaks of information that create doubt about the veracity of the main witness for the prosecution!

     Now, just *where* would that information be coming from?

     Innocent till proven guilty with the burden of proof on the prosecution – not a strange concept.

     Review the history of the case. Although it was expected of a defence team to cast doubts on the victim’s credibility and character, it was reported it had to be different in DSK’s case because the accuser was a poor immigrant (and he was rich), and aggressive tactics could backfire. Also, in late May, the defence team threatened to release details about the accuser in response to leaks from the police which they claimed were undermining their case. To which the prosecution and the accuser’s lawyer replied to the effect they wouldn’t if it were them (and no, I don’t think they were being polite). And the leaks to-date (other than the hooker bit) seem to be the ones dug up by the prosecution team (incl. law enforcement).

     And if the leaks are indeed from the defence, why is the accuser’s lawyer not saying anything about them (he is more infuriated with the prosecution right now)?

     And oh, this from CBS which says “the leaks evidently are coming from law enforcement sources and not defense attorneys”. And that the leaks to the press are attributed to law enforcement officers. (And yes, I do consider the law enforcement (or investigating officers) to be on the same team as the prosecution, as they do work towards the same goal i.e. conviction.).

     So, the probability of leaks to-date from the prosecution investigating team is high indeed. Does this mean that the defence team is angelic? Of course not, merely tactical.

     zuzu:
     You’re the ones who either self-identify as European, or claim to be experts in what Europeans think, as if they all thought the same way.So are you now saying you’re *not* speaking for all Europeans?

     First of all, “and the majority of the Europeans” should have read “the majority of the “Europeans” (I swear I re-posted), wrt to your remarks about Europeans on this post. So, I believe that’s where the mis-understanding stems from.

     Secondly, Europe is a diverse continent with different nation states and cultures. (In common parlance, Europe means EU plus countries such as Norway and Switzerland). Yet, as mentioned in one of my previous posts, I use the term loosely. Nevertheless, there are certain principles that are shared across e.g. no death penalty. So, if I say, Europeans are against death penalty, I don’t mean every single of them of course (and to think otherwise is just being obtuse).

     zuzu:

     In any event, you seem to be blaming the prosecutors for the publicity circus, and by extension, the American government.Which betrays a lack of understanding of how things work here; first, it’s a local issue, not a federal one despite the involvement of someone who works for the IMF and statements by the State Department; second, you seem to think the press either is an arm of the state or gets all its information directly from prosecutors when it makes a hell of a lot more sense that the defense would be leaking information.

     What are you talking about? You are aware that US is not the only federalist country in the world, aren’t you (there are even a few in Europe)? That this is a local and not a federal issue is not even a revelation as you have seemed to assume. Blaming the prosecution equals blaming the US Govt? No kiddin’. “Press is the arm of the state” – you make it sound like you think only the US has a free press. Seriously?

     Well, if the defence is indeed behind the leaks, then it is a wonderful opportunity for the accuser’s lawyer to lay it on them (I’m sure he would have anticipated them, no?)

121. Re-posting the last bit to avoid confusion:

     zuzu:
     In any event, you seem to be blaming the prosecutors for the publicity circus, and by extension, the American government.Which betrays a lack of understanding of how things work here; first, it’s a local issue, not a federal one despite the involvement of someone who works for the IMF and statements by the State Department; second, you seem to think the press either is an arm of the state or gets all its information directly from prosecutors when it makes a hell of a lot more sense that the defense would be leaking information.

     What are you talking about? You are aware that US is not the only federalist country in the world, aren’t you (there are even a few in Europe)? That this is a local and not a federal issue is not even a revelation as you have seemed to assume. Blaming the prosecution equals blaming the US Govt? No kiddin’. “Press is the arm of the state” – you make it sound like you think only the US has a free press. Seriously?

     Well, if the defence is indeed behind the leaks, then it is a wonderful opportunity for the accuser’s lawyer to lay it on them (I’m sure he would have anticipated them, no?)

122. chava:
     You went from claiming DSK shouldn’t have been subjected to a perp walk because he had “more to lose” than a poor, unknown man to saying that the perp walk and press are like being beaten and tortured in a Pakistani prison?

     No, I didn’t. You’re conflating thing, although it’s probably my fault for not being clear enough. Allow me to try again:

     (1) There is a general consensus among European legislative bodies and European administrations that perp walks are bad. Firstly because they are tantamount to punishment (through public humiliation) without prior trial and conviction. Secondly because a large body of sociological research suggests that they prejudice the public against the defendant. Seeing people in situations associated with guilt makes you think they are guilty. Intellectually, you know they’re a suspect and not a convict yet. Subconsciously, if he’s not a bad guy then why is he in handcuffs?

     (2) I personally happen to agree with (1). At least Hugo immediately got this (#33) so I can’t have been completely impenetrable. Karen (#53) at least seems to think my English is adequate.

     (3) There is also a general consensus among European lawmakers that prosecutors and police should avoid damaging defendant’s lives more than strictly necessary; they could still turn out to be innocent after all. Obviously if you want to reliably protect every defendant and not just the average defendant you have to take everyone’s personal distinctivenesses into account. Prosecutors and police are therefore explicitly, legally tasked with giving special consideration to everybody’s special vulnerabilities.

     If jail could ruin you life because of health issues then you will be held in a hospital. If jail could ruin your life because you work in a private-sector blue collar job you are easily fired from then you will probably not be held at all. If TV cameras could ruin your life because you are a public figure then measures will be taken to keep the cameras away from you.

     (4) I never said I agree with (3). Not ever, anywhere. If you disagree show me where. I merely pointed it out. It’s a simple fact; I thought you’d be interested to hear about it in order to better understand European reactions to the arrest. French sexism explains a lot, but it doesn’t explain why the Danish and the Bulgarians are scratching their heads in disbelief.

     Yes, I know Americans tend to think that giving special consideration for the reputations of the high and mighty is a violation of the principle that everybody should be treated the same. This is why I used the term “values dissonance”. Europeans, however, tend to think that not giving this special consideration is a violation of the principle that you shouldn’t be punished before you’ve been proven guilty. You’re not gaining anything by shooting the messenger.

     (5) My brother in Pakistan is one of two thought experiments I suggested because zuzu professes to disagree with #95, in which I say that making DSK do the perp walk is wrong because making anybody at all do the perp walk is wrong.

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