Sex in the city, redux

John Eligon and Joseph Goldstein have an article in The New York Times about the latest in the Strauus-Kahn case:

A housekeeper in a Manhattan hotel says she was sexually assaulted by a guest in a room she was cleaning. It is the type of case, harrowing as it may be for the accuser, that prosecutors of sex crimes hear routinely. Even the complications are standard for sex abuse: with no eyewitness or other direct evidence of a forcible attack, the case is shaping up to be a battle of she-said, he-said.
A case like this would typically go through weeks or months of investigation, the prosecutors would decide whether to go forward, the two sides would talk about a deal, and not too long after that the case would be decided either with a plea or a trial.
But this is no ordinary case. The defendant, Dominique Strauss-Kahn, is a man of global economic and political importance, a powerful figure highly unlikely to admit to embarrassing accusations. The Manhattan district attorney, Cyrus R. Vance Jr., is not quite a year and a half on the job and is still operating under the shadow of his predecessor, Robert M. Morgenthau, who held the post for forty years. Historically, the office has been known to take on the most difficult of cases, even if it has been seen as overzealous.
These variables have set this case on an international stage with unprecedented attention from the news media, something that will undoubtedly affect the strategic trajectories of all involved, including the plea bargain posture of both sides, the legal issues raised in court, and the chances of the accuser’s filing a lawsuit.
Both sides have signaled that they will take an aggressive approach. Mr. Strauss-Kahn has hired a high-priced legal team, including a big-name lawyer who has lectured on the art of cross-examination. The team has, in turn, hired investigators to check out the woman’s past, and experts say no aspect of her life, like her personal history, and any financial dealings, will go unscrutinized.
For his part, Mr. Vance moved faster than usual for an indictment and has assigned some of his most highly regarded senior prosecutors. They are looking into accusations that Mr. Strauss-Kahn, who resigned last month as managing director of the International Monetary Fund, has engaged in questionable behavior before. And this is only the beginning. Both sides will wrestle with a host of changing and complex issues— strategies, realities, and personalities— going forward.
Most criminal cases— especially sexual assault cases, which can be the hardest to prove— are resolved long before trial with a plea deal. But egos and professional reputations on both sides, circumstance, and worldwide publicity make it unlikely that Mr. Strauss-Kahn’s case will end quietly in a deal, with the suspect admitting to a lesser crime and the prosecution accepting lesser punishment.
And Mr. Vance’s office, at least publicly, is indicating it will take a hard line. “This is a case that is going to trial,” a former prosecutor said, speaking on the condition of anonymity so as not to be seen as taking a side in the case. “You’re not going to offer him a plea that’s a nonjail disposition; Vance would look foolish if he did that. And the defendant, he’s got a perception of himself that doesn’t permit him to stand up and sayL ‘I raped that woman.’”
A major part of the plea deal calculus comes down to the central men in this drama: Mr. Vance, who finds himself with what is by far his most high-profile case yet, and Mr. Strauss-Kahn. The question is whether either man will cede any measure of defeat.
Prosecutors have expressed no shortage of confidence in their case against Mr. Strauss-Kahn. The proof against him “is substantial,” Artie McConnell, an assistant district attorney, said during a bail hearing after the defendant was indicted. “It is continuing to grow every day as the investigation continues.”
If that is the case, the prosecution would favor withholding a plea deal unless Mr. Strauss-Kahn asks for one and says he is willing to serve some prison time, said Linda Fairstein, a former sex crimes prosecutor in Manhattan. But even if Mr. Strauss-Kahn does so, it is hard to envision Mr. Vance’s office offering a sentence that would satisfy Mr. Strauss-Kahn, because, in such a politically charged case, Mr. Vance does not want to appear weak.
In deciding whether to offer a deal, prosecutors, of course, weigh the strength of their case: Are they sure they can get a conviction? Has other evidence emerged to affect the credibility of the accuser? Mr. Vance’s office said in a statement that it would not “discuss its trial strategy in the media. Any speculation about trial strategy or evidence will be just that: speculation,” it said.
The prosecutors’ swift action on the case may also hint at their belief in their evidence. They obtained an indictment within a week of Mr. Strauss-Kahn’s arrest, even though they could have taken longer because he was granted bail. It is not unusual for prosecutors to delay indictments on sex crime charges for weeks, if not months, while they investigate cases, many of which lack definitive physical evidence and amount to credibility battles between the accuser and the accused.
Mr. Strauss-Kahn is accused of trying to rape the 32-year-old hotel housekeeper in the luxury suite of the Sofitel New York on 14 May, then forcing her to perform oral sex. The defense has suggested that whatever happened was consensual. Evidence from the work clothes of the housekeeper matched DNA samples taken from Mr. Strauss-Kahn, but the defense has indicated that such evidence could be consistent with a consensual encounter.
Will the prosecutors’ confidence remain intact? Inevitably, they will have to determine how to confront the longstanding societal stereotypes that lead people to view skeptically those who claim sexual assault, said Ms. Fairstein, who spent about 25 years as the chief of the Manhattan district attorney’s sex crimes bureau. Another challenge will be to determine Mr. Strauss-Kahn’s motive. Even though the prosecution is not required to prove motive, jurors often want to hear one, Ms. Fairstein said. “What would make him do something like this?” she added. “People are surprised when it’s a man of distinction, power, wealth, education.”
Fueled by the fortune of Mr. Strauss-Kahn’s wealthy wife, the defense has hired Guidepost Solutions, a private investigation company led by Bart M. Schwartz, a former federal prosecutor, to look into the accuser’s background.
Defense lawyers threatened that they had “substantial information” they could use to “gravely undermine the credibility of the complainant in this case”. During the trial, any such information— if it exists— will emerge during the cross-examination of the hotel housekeeper. In sexual assault cases, it is during cross-examinations that defense lawyers insinuate that the accuser is confused, mistaken, or even lying, driven by money, vengeance, or remorse.
An aggressive cross-examination, especially in sexual assault cases, carries the risk that jurors may take offense at watching the denigration of a person they believe to be a victim. Still, it is a risk that defense lawyers generally feel obliged to take. “You really have to attack the witness’s credibility” in sexual assault cases, a Manhattan defense lawyer, Jeffrey Lichtman, said. “While it may seem morally unseemly to the public, it’s legally appropriate and we have to do the best we can for our clients.” He added: “You have to make this into a money thing at the end. Has she defaulted on loans or bounced checks?”
The cross-examination of the hotel housekeeper could go on for days, and Mr. Strauss-Kahn’s lawyers will spend months preparing for it. For the defense team, it is its most important chance to call into question the prosecution’s claim that the sexual encounter was coercive. A person with knowledge of Mr. Strauss-Kahn’s legal strategy who spoke on the condition of anonymity said there was no decision yet as to which of his lawyers, Benjamin Brafman or William W. Taylor III, would cross-examine the hotel housekeeper.
In the past, Mr. Brafman, a formidable cross-examiner, has spoken with evident pride about his ability to employ different approaches when confronting witnesses. In a taped lecture that is available online for a fee, Mr. Brafman said he was often asked: “Is every cross a knock-down slugfest?” The answer, he said, is “absolutely not”. He explained his preferred approach: “More often than not, what you have to do is badger a witness in a way that doesn’t necessarily make them break, but makes them either not credible or less credible or puts in doubt something that they have said.” He added, “That’s a really good cross-examination.”
A person with knowledge of the defense’s strategy said the legal team had not yet decided what approach to use with the hotel housekeeper. “If you have a woman who views herself as a victim, when in fact this is consensual but she has personal regret after the fact, that is a very different type of cross-examination” than if “we find bad stuff about her,” the person said.
Some details of a potential defense are already coming into focus, a person close to Mr. Strauss-Kahn’s defense team said. The defense is expected to pursue the issue of whether it is even physically possible for an unarmed man, who is not particularly physically imposing, to force a person to engage in oral sex.
At Mr. Strauss-Kahn’s arraignment, Mr. McConnell, the prosecutor, said his office was trying to verify whether Mr. Strauss-Kahn had “engaged in conduct similar to the conduct alleged in this complaint on at least one other occasion”. Since then, more than one woman has contacted investigators in New York to discuss encounters with Mr. Strauss-Kahn that they felt were aggressive or possibly coercive, a law enforcement official said, speaking on the condition of anonymity because the case was continuing.
If Mr. Strauss-Kahn gets his way, he will have to answer only one accuser— the hotel housekeeper— at his trial. The prosecution may well try to have him answer to more. Judges in New York sometimes allow prosecutors to present evidence about past misdeeds, opening the scope of a trial beyond the crimes charged in the indictment.
Mr. Strauss-Kahn’s words could open the door to this tactic. If, for example, he, or other people testifying as character witnesses, says that he is a perfect gentleman, the prosecution might have an opening to offer evidence of past encounters in which a woman claimed he behaved otherwise with her. But even if Mr. Strauss-Kahn does not offer prosecutors such a window, a judge might allow prosecutors to introduce evidence about other women with claims against Mr. Strauss-Kahn.
What type of past misdeeds are fair game at a trial in New York? That depends largely on a 1901 decision, People v. Molineux, which involved a man accused of trying to poison the fitness director of his athletic club. At the trial, prosecutors also tried to prove that the man, Roland Molineux, had previously poisoned another person. The Court of Appeals ruled that the prosecution had crossed a line by trying to link him to the previous death, and granted Mr. Molineux a new trial.
But there was a catch. The court’s decision acknowledged several exceptions to the rule “that the state cannot prove against a defendant any crime not alleged in the indictment”. Under Molineux and subsequent rulings, evidence of past misdeeds can sometimes be admitted if it speaks to the defendant’s criminal intent or an unusual modus operandi.
If, for instance, prosecutors found other hotel housekeepers who said Mr. Strauss-Kahn assaulted them, prosecutors might seek to place those women on the stand to suggest that Mr. Strauss-Kahn’s encounter in the Sofitel was not consensual, legal experts said.
Because evidence of prior misconduct can sway a jury to believe that the defendant may be predisposed to crime, defense lawyers argue very hard against permitting prosecutors to present evidence of past behavior. A person with knowledge of Mr. Strauss-Kahn’s defense strategy said that his legal team would fight efforts to bring in any evidence relating to Mr. Strauss-Kahn’s past encounters with women. “In a rape case, a trial of forcible compulsion, the fact that I flirt with women, or that I’m a cad, is not going to be admissible as a prior bad act no matter how offensive it is,” the person said.
At this point, it is not clear whether prosecutors intend to put other women on the stand. A law enforcement official briefed on the case, speaking on the condition of anonymity because court proceedings were continuing, said that Mr. McConnell’s mention of “at least one other” past accusation was a reference to the claim of a French journalist, Tristane Banon, who has publicly said that Mr. Strauss-Kahn had tried to rape her when she went to interview him in 2002. A lawyer for Ms. Banon had earlier said that she did not want to testify against Mr. Strauss-Kahn in New York.
Two people close to Piroska Nagy, a former subordinate at the IMF who has said Mr. Strauss-Kahn pressured her into an affair, said that New York prosecutors had not sought to interview Ms. Nagy.
While investigating evidence is a crucial part of any prosecutor’s case, one of the most important tasks for the prosecutors will be to manage the accuser’s emotions and protect her from outside influences.
It is difficult enough in any sexual assault case to get the accuser to come forward and cooperate all the way through the trial. It may be even harder in this case because of the enormous scrutiny surrounding the woman: several foreign news outlets have published her name, her friends and neighbors have been swarmed by a curious press corps, and, of course, her life will be thoroughly examined by Mr. Strauss-Kahn’s well-paid defense team.
So far, it seems, the woman has held up well. “This is a woman who believes in justice and was very strong in the beginning, even though she was scared and frightened,” said Susan Xenarios, the director of the Crime Victims Treatment Center at St. Luke’s-Roosevelt Hospital Center, where the woman was treated after she said she was attacked.
Despite all the news media attention, or because of it, Ms. Xenarios said, she believes that the woman will see this case through “because she almost can’t not at this point.”
There have been reports that people connected to Mr. Strauss-Kahn may try to pay off the woman to recant her accusations; the defense team has denied those reports.
If the woman backs out and does not cooperate with prosecutors, it will be devastating to their case. While they could force her to testify, and confront her with her grand jury testimony if she changes her story on the witness stand, that is typically not something that plays well before juries, Ms. Fairstein, the former prosecutor, said.
The Manhattan district attorney’s office has a history of finding inventive ways to prosecute cases— especially domestic violence charges— in which people who claim abuse do not want to cooperate. The office has, for instance, used frantic 911 calls placed by the accuser in place of testimony from that person. Prosecutors could also use other eyewitness testimony, surveillance tapes, or other definitive physical evidence. But there was no 911 call by the woman in Mr. Strauss-Kahn’s case and no eyewitnesses.
“No matter how keenly the prosecutors wish to go forward with this, it doesn’t appear to be the kind of case in which that would be possible” without the hotel housekeeper’s cooperation, Ms. Fairstein said.
Prosecutors also must be wary of how any civil action taken by the woman, who has hired a lawyer, could affect their criminal case. Ideally, she would wait for the criminal proceeding to finish before filing a lawsuit, but the law gives her only about a year from the date of the alleged attack to do so — and few expect the case to be resolved in a year. Filing a lawsuit also would open the door to talk of a financial settlement before the criminal case is resolved. This would be a tricky proposition, several lawyers said, because of laws against bribing or tampering with a witness. It would be inappropriate to settle a civil lawsuit on the condition that she not cooperate or speak to the district attorney’s office, several lawyers said. But saying something like: “I hope you would take a favorable view toward a noncustodial term,” meaning a plea deal with no jail time, could fall within legal boundaries, Gerald L. Shargel, a defense lawyer, said.
But the accuser and the accused would seem to have little incentive in reaching a civil settlement before trial. For one, a conviction at trial means a certain victory on the lawsuit, with only the amount of damages to be settled. So it may be in the best interest of the woman to let the criminal case play out first. For Mr. Strauss-Kahn, a civil settlement could be seen by jurors in a criminal trial as an admission of guilt, and there is no assurance that prosecutors would then drop the case.

Rico says that, from what he's seen so far, the schmuck is (deservedly) doomed...