In one of those ironies that novelists relish, the on-again-off-again rape prosecution of the former International Monetary Fund chief Dominique Strauss-Kahn seems to have gravely damaged the political careers of both the prosecutor and the defendant.
Mr. Strauss-Kahn, who was once the likely Socialist challenger to Nicolas Sarkozy in the next French presidential election, returns home seen, in the best light, as a self-confessed cad who had sex with a hotel maid just before lunching with his daughter and flying back to his wife.
The Manhattan district attorney, Cyrus Vance Jr., appears to have severely antagonized women’s groups and many African-Americans by his unwillingness to pit the word of a poor black woman against a powerful white man, and has also raised general questions about his competence for not sussing out problems in his case earlier. (In an odd twist for the son of a former secretary of state, Mr. Vance also made diplomatic waves, by infuriating many French with his undignified treatment of Mr. Strauss-Kahn, who was trotted before cameras, unshaven and handcuffed.)
The political dust will settle where it may. But as a professional matter, both as a former prosecutor and current criminal defense lawyer, I give Mr. Vance passing grades. The most dubious decision he made was to bring an indictment so quickly, rather than taking more time to investigate. But even there, New York law forced his hand somewhat. Mr. Strauss-Kahn was in jail and Mr. Vance had five days either to seek an indictment or let Mr. Strauss-Kahn go. In hindsight, Mr. Vance should have tried to work out an arrangement with defense lawyers so that he could fully examine the background of the hotel maid, Nafissatou Diallo, especially since the wealthy Mr. Strauss-Kahn was bound to hire a team of investigators to exhaustively scrutinize her life.
But beyond a mistake due in part to being cornered by the law, I think Mr. Vance performed well. The collateral damage to the career of Mr. Strauss-Kahn, who resigned in disgrace from the I.M.F., was clearly unfair, but that was caused largely by his sensational arrest, which Mr. Vance had no choice about effecting. The prosecutor had received allegations, seemingly corroborated by the brief investigation at the crime scene, of a violent felony allegedly committed by a man about to fly overseas and place himself beyond the reach of any United States court. Any responsible law enforcement professional would have detained Mr. Strauss-Kahn and sought to question him and gather evidence, including DNA.
Given the attention paid to Mr. Strauss-Kahn’s arrest, Mr. Vance deserves enormous credit for pulling the plug on a highly publicized prosecution, especially since he could foresee the political damage to himself. I was one of the lawyers in a case involving two men whom prosecutors held on death row for years long after another man had confessed to the murder. That is not atypical. Prosecutorial intransigence, a galling inability to acknowledge that initial judgments were incorrect, is the hallmark of almost every wrongful conviction case I am familiar with. Mr. Vance is entitled to kudos for not turning a failing case into a travesty.
And the standard that Mr. Vance and his assistants employed in deciding to dismiss the case is noteworthy and laudable. “If we do not believe her beyond a reasonable doubt,” the prosecution wrote in its motion to dismiss, referring to Ms. Diallo, “we cannot ask a jury to do so.”
This is not the bar all prosecutors set in deciding whether or not to go forward. Ethical rules prohibit lawyers from calling a witness whose testimony they know to be false; but the rule is not the same when the testimony is possibly true but dubious. Particularly in urban criminal courts, where caseloads tend to be overwhelming and the police sometimes push cases aggressively, prosecutors are often not convinced beyond a reasonable doubt about the truthfulness of particular testimony. Frequently they leave it to jurors to determine the credibility of a particular witness. In trying to talk prosecutors out of weak cases, I have been told more than once, “I wasn’t there, man, and neither were you. Let the 12 of them figure it out.”
In practice, this means that even defendants who are probably innocent must endure the anguish of trial. I once represented a young man in a gang murder case who had been arrested and indicted along with eight other people, even though his name was never mentioned in the grand jury testimony. Although it seemed clear that the police had mistaken this young man for his brother, both the prosecutors and the judge told me to “put it on,” meaning go to trial; the client sat in court for several days, in jeopardy of a lengthy prison term, before the case against him was finally dismissed.
Given these realities, the ultimate test of equality in Mr. Vance’s office will be whether his prosecutors universally apply the demanding, but appropriate, standard they used to decide whether to proceed with the Strauss-Kahn prosecution. Let’s hope they do, in fact, require themselves to be convinced — beyond a reasonable doubt — in all of their future cases, a vast majority of which will involve defendants who don’t have the power or eminence of Mr. Strauss-Kahn.
Scott Turow, a lawyer and the author, most recently, of the novel Innocent.