State Supreme Court Justice Michael Obus dismissed the seven-count indictment against the former head of the International Monetary Fund, Dominique Strauss-Kahn on August 23, 2011. The media driven sideshow and one of its most celebrated perp-walks in Gotham came to an anti-climatic close. As the gavel came down, the hopes of millions, and at times it seems, all of the media, to see one of the most privileged and powerful fall to earth were suddenly frustrated.
Strauss-Kahn was arrested and charged with rape four hours after the alleged incident with Sofitel hotel maid, Nafissalou Diallo. All physical evidence of the interaction, including DNA, was carefully collected and the rape kit immediately dispatched for analysis. Like many in the criminal defense bar, I have been saddened to witness how much justice is so much less for the poorer and disenfranchised because they cannot afford the most aggressive representation when accused, even wrongly of a crime.
Strauss-Kahn’s prosecution exposes one those rarer instances in the law when the rights of a plebe are catapulted to the lofty levels of the heightened terror warnings given by Homeland Security. How grand that New York would decide to spare no expense in demanding justice for this poor maid. Manhattan District Attorney Cyrus Vance, Jr. would say, in the most unselfish way, that the case against Strauss-Kahn “was strong…very strong.” No one would remember his saying the same thing about another (albeit it not as) high-profile rape case involving two police officers, a mere three months earlier. All this would be admirable were this great prosecutorial zeal not to fizzle out to the degree that it does when faced with low-profile cases.
According to the Department of Justice, there are more than 200,000 un-processed rape kits, many containing DNA evidence that have been sitting on shelves as the physical evidence contained degenerates for years or decades. Processing these rape kits would put thousands of horrid rapists behind bars and free many others wrongly accused and rotting in jails that would be exonerated but remain because the DNA evidence in rape kits are not processed.
Last May 2010, Congressman Jerrold Nadler testified in Congress, pointing out that more than a dozen rapes are committed in America every hour,
“Two hundred and forty-eight thousand, two hundred and eighty (248,280) – that is the number of rapes and sexual assaults that occurred in 2007, as reported by the Department of Justice. That is more than 679 rapes and sexual assaults every day; 28 such crimes every hour. That is an unconscionable number of people, almost all of them women and girls, victimized in the United States on a daily basis in the most horrible way.
Rape and sexual assault are horrible crimes which can destroy the lives of the victims and their families. They are terrors which no one should have to suffer. Modern science thankfully has provided a way for us to combat this scourge – DNA testing. By testing the DNA evidence left at the scene of a rape or sexual assault, we can, with near certainty, identify the perpetrator or perpetrators involved. Such evidence makes it much more likely these individuals will be captured and punished. This, in turn, allows victims to obtain justice and society to take violent criminals off the streets.”
Would that all victims of rape, especially credible ones with far more truth telling ability than Ms. Daillo, were taken as seriously. The reason they are not having champions in the 24-7 media and prosecution, to the extent that Ms. Daillo had, has nothing to do with their own socio-economic station in life but that of the defendant involved.
Certain prosecutions where the defendant is extremely wealthy and high-profile, are explained by considering the thinking of the prosecutor and his Ahab-esque career long quest for case against the “Great White Defendant”-as so aptly described in Tom Wolfe’s Bonfire of the Vanities.
Sadly, as in the case of Dominique Strauss-Kahn, there is a rush to judgment and frenetic drumbeat by the media to drive prosecutions. The media tail wags the prosecution dog. Prosecutors often play to the media and the media affects high profile cases to the point of driving prosecutions and hastening indictments-making a circus sideshow of the justice system. If the media and prosecution get it wrong and destroy lives in the process, as so often happens in high profile prosecutions, where conviction is only obtained most of the time not for successful conviction of the underlying “grave moral sin,” but the more pliable, impossible to define catch-all, that is obstruction of justice-it matters not at all. Prosecutors are never held accountable anyway because of absolute and qualified immunity.
Why this matters, other than the fact that justice becomes a media sideshow, is that things like the presumption of innocence are tossed aside for ratings or marketing for prosecutors with political ambitions. I have grown accustomed to pointing out to people why the rights of the poorest and most disenfranchised matter to the proverbial ensconced suburban soccer mom-because what happens to these people can in the law happen to them. What happens to the Great White Defendant in a media driven prosecution is equally applicable to the suburban soccer mom because that is simply how the law works through the establishment of precedent and law.
The benefit of an ambitious prosecutor’s use of the Great White Defendant is evidenced in how it has so utterly advanced the political careers of prosecutors it alone put on the map. Think of Giuliani’s quest for Milken, Spitzer’s (Client #9) war with Dick Grasso and Hank Greenberg-all garnering more media air time and publicity than these two would have gotten even if they themselves murdered someone. Mr. Vance’s more modest but no less high-profile excursion with Strauss-Kahn was in this context, an understandable gambit. There is no greater reward for the prosecutor in search of publicity, political office or career advancement, or a talk show on CNN, than the Great White Defendant. This is a whale worth the wait.
What suffers in all of this the equal administration of justice. Not to mention those rape victims who do not accuse the Great White Defendant and lets face it, have little hope indeed.@
R. Tamara de Silva