The Madness Of DSK Accuser's Public Interviews
July 27, 2011 Oscar Michelen Litigation 2
I have already written about the unusual openness and public nature of the DSK prosecution in an earlier blog post. Now the alleged victim herself has decided to publicly expose herself in a lengthy interview in Newsweek magazine,conducted at her lawyer's office. (Note/Disclaimer: her attorney is also the same attorney who represented the accuser of Governor Paterson's aide David Johnson, whom I represented). The evidence in sex crime cases is normally kept under wraps. Prosecutors especially try to play their cards close to the vest because they know that "consent" is a likely defense and that therefore any shadows cast on the accuser's credibility can damage the case. So to have the accuser give repeated interviews must send shivers down the spines of the NY County DA's Sex Crimes Unit. They are still reeling from the acquittal of two cops who spent hours in a drunk woman's apartment who claimed one of the cops had sex with her while she was physically helpless. They cannot afford to lose another high-profile sex trial.
In Newsweek and presumably in later TV interviews which are scheduled to air shortly, Nafissatou ("Nafi") Diallo recounts her version of what happened and talks about her past. Already, just the fact that we know her name distinguishes this case from all other similar sex cases. Normally, in NY the media do not report the name of sex crime victim while the case is pending.The importance of this is that while the defense may know her name, once her name is aired publicly, it exposes her having others come to the defense with information about her past or about prior inconsistent statements she may have made about the incident.In general, the less information the defense has about the accuser, the better for the government.
In the Newsweek interview, Diallo's credibility is called into question by the reporter:
Occasionally as Diallo talked, she wept, and there were moments when the tears seemed forced. Almost all questions about her past in West Africa were met with vague responses.
That is an unusual revelation of a reporter's opinion that you do not often see in sex cases or indeed in any cases. Newsweek also wrote about parts of her story that were supported and contradicted by the hospital records:
Many aspects of Diallo's account of the alleged attack are mirrored in the hospital records, in which doctors observed five hours afterward that there was "redness" in the area of the vagina where she alleges Strauss-Kahn grabbed her. The medical records also note she complained of "pain to left shoulder." Weeks later, doctors reexamined the shoulder and found a partial ligament tear, she said.
If there is one inconsistency for defense lawyers to dwell on in the hospital records, it is a passage that says her attacker got dressed and left the room, and "said nothing to her during the incident." In her interview with police and her account to NEWSWEEK, Diallo recalled several statements Strauss-Kahn made during the alleged attack.
Believe me, the last thing DSK's extremely competent counsel need is help in pointing out fruit for cross-examination. So why would she come forward now? More importantly, why would her lawyer allow her to come forward now? There are two likely scenarios: The first is that the accuser and lawyer hoped that by coming forth with clear details of conduct that would constitute a crime, they would force the DA's hand and obligate him to prosecute the case despite the many inconsistencies and alleged facts that fly in the face of common sense. The other is that the DA has already told the defense that on August 23rd (the next court date) they intend to dismiss the case as unprovable beyond a reasonable doubt. This seems the more likely scenario as it would mean that the accuser and her lawyer would know they had nothing to lose by coming forward. Without a criminal case, the accuser will not be taking the stand anytime soon, as her giving of testimony in any ensuing civil case would be months and months away. The interviews could even give the NYDA more cover as to why they are dismissing the case.
Either way, I hope her attorney thought long and hard about allowing the interviews and that he and Ms. Diallo decided together that it was the best course. Exposing an alleged crime victim to this kind of attention and allowing the details of her story to be played out in the national media was a very risky course and one that could have great implications for the accuser in any criminal or civil trial hat may be held out of this incident.
Diallo
Like Skiing and Golf, Learning the Law Often Requires Public Humiliation
Suffolk County Needs A Lesson in the First Amendment
N Starr says:
Now, of course, we know that Ms Diallo has formally filed her complaint in Civil Court seeking unspecified damages together with an injunction "permanently restraining Defendant from engaging in such unlawful conduct". I'm greatly interested in your professional reaction to this extraordinarily worded document.
Oscar Michelen says:
You know, I was interviewed by Reuters about it and the article should be coming out soon. I was rather surprised at the wording, you can't sue for that kind of injunction of course, its just headline grabbing nonsense. Also, alleging in the complaint that you are going to bring out prior instances of similar conduct is making a promise you probably woon't be able to keep. It will bevery hard to introduce evidence of prior accusations when there has been no conviction or adjudication as to those convictions. This seems to me to signal that her lawyer worries the DA is going to drop the case. What did you think of the complaint?