The Strauss-Kahn Case: Reflections on the Non-Trial of the Century

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Former International Monetary Fund director Dominique Strauss-Kahn, center, departs Manhattan State Supreme Court with his wife Anne Sinclair and attorney Benjamin Brafman on August 23, 2011 in New York City.

The wind off the river whipping up Centre Street made the late August morning feel more like fall. Journalists from around the world, seemingly more than at any point in the trial, formed their usual scrum on the steps of the Manhattan Criminal Court, waiting to storm inside one more time. "This is the last chance," an ancient courtroom sketch artist told me. "After this, we'll all be out of a job."

Rumors of the mega-trial's demise may have been exaggerated, but it is true that it's been a very long time since anyone, including New Yorkers, has seen a legal case as big as this one. When Dominique Strauss-Kahn was yanked from the first class cabin of an Air France flight to Paris on May 14 and made to endure the perp walk to Ricker's Island, it was clear that even a city like New York had seen little like this before. The managing director of the International Monetary Fund and a leading candidate for the presidency of France at the time of his arrest, Strauss-Kahn made Sherman McCoy, the central character in Tom Wolfe's Bonfire of the Vanities, seem quaint.

On August 22, the Manhattan DA's office filed a motion to dismiss charges against Strauss-Kahn, saying that inconsistencies in the accuser, Nafissatou Diallo's story and outright lies to investigators had made it impossible to continue the case. "The physical and other evidence does not establish forcible compulsion or lack of consent," the motion to dismiss said. "For a trial jury to find the defendant guilty, it must be persuaded beyond a reasonable doubt that the complainant is credible."

Even though the odds of the judge refusing the motion were minimal, the press herd still fought their way into the courthouse on the chilly morning of August 23. They crammed into the stuffy hallway and waited for more than three hours just for a chance to be admitted. Nearly every available seat went to a reporter, but many more were turned away. Those lucky enough to be in the courtroom heard Assistant District Attorney Joan Illuzi-Orbon address the court, reading many passages from the dismissal motion. "Indeed, the case rises and falls on her testimony," Illuzi-Orbon said slowly to hammer the point home. Diallo was, Illuzi-Orbon said, "untruthful with us in virtually every substantive interview, in matters of great and small significance." In the end, prosecutors "couldn't credit her version of the events beyond reasonable doubt."

After the judge granted the dismissal, Strauss-Kahn emerged from the courthouse into the brilliant sunshine. He was greeted by protestors, some holding signs supporting Diallo, and after making a few small remarks to reporters, he hopped into a waiting car and sped off. In the shadow of the Manhattan Criminal Court, Michael Greys, representing an organization called 100 Blacks in Law Enforcement Who Care, stepped up to the bundle of microphones and the media scrum closed in on him. Greys bellowed loudly about a miscarriage of justice, accusing District Attorney Cy Vance, Jr. of failing to execute his duties as the District Attorney.

But in the assessment of former prosecutor Linda Fairstein, Vance and his team did the right thing in the interest of justice. Fairstein is not just any former practitioner of the law. She helped found the pioneering Manhattan Sex Crimes Unit, the first of its kind in the country, and she served as the unit's chief from 1976 until she retired from the DA's office in 2002. "What's powerful about Vance's position is that he separates the lies external to the case," Fairstein says, referring to the fabrications on Diallos application for asylum from Guinea that came to light in the course of the investigation. "The internal lies, that's what killed this case. Once she tells different stories about what happened in that 20-minute encounter and what happened in the moments after, that left these prosecutors no choice but to, in the interest of justice, dismiss this."

When Fairstein began her 30 year career, the laws governing sex crimes prosecution made it virtually impossible to even bring cases to court. Rapes had to be corroborated, meaning an accuser essentially needed a witness to confirm that the crime even took place. In 1974, there were 1,000 rapes in New York City and only 18 convictions. That year the State Legislature dropped the corroboration requirement. Along with the rape shield law and the use of DNA, Fairstein and her team were able to successfully prosecute thousands of rapes and sexual assaults.

But even in the age of forensic technology, the credibility of the accuser is still crucial, not just to the case but to the entire system. "Whenever a victim lies, whenever there's a false report, it makes it harder for the next 10 women who come along to those same police officers and prosecutors," Fairstein says. "You want to identify those cases as quickly as possible and get them out of the system because they poison it for everybody else."

It's unclear at this point what kind of lasting impact the Strauss-Kahn case will have on future prosecutions and the way investigators and the media handle both accusers and the accused. Hours after the charges were dropped, Defense attorney Benjamin Brafman and his partner, William W. Taylor, III, went on CNN's Piers Morgan Tonight to discuss the dismissal. "It goes to show that anyone, whether he's rich or poor or French or American, can lose his liberty on the word of someone which is not true," Taylor said, in almost a mirror image of the populist vision that erupted three months ago. Now, one of the most powerful men in the world had become the victim. The attorneys dodged questions about whether Strauss-Kahn acted inappropriately — what he described as a consensual sexual encounter with Diallo being, clearly, infidelity to his wife. Brafman finally admitted that Strauss-Kahn is not proud of the incident, but stopped short of outright criticism.

Brafman did have powerful words for the legal system and District Attorney Vance. "Our system is not perfect. In this case, it was flawed at the outset," Brafman said. "But the one thing I'd like the world to recognize is that it ultimately did work. What happened today was a district attorney of New York County standing up and saying, we do not have faith in this case, and we're going to move to dismiss it. I give Cy Vance a lot of credit for having the guts to do that today."

Justice, it seems, can take many forms. In the Strauss-Kahn case, the charges were dropped in the interest of justice. Attorneys for Diallo don't consider what happened yesterday to be justice — quite the opposite — and they have vowed to fight on in a civil lawsuit. It's also unclear whether Strauss-Kahn will return to French politics. Today, according to the court, he was the victim of a false accusation, but will anyone care that he admitted being unfaithful to his wife with a hotel maid? All that is clear is that the criminal system survived the circus of arguably the biggest non-trial of the 21st century.