Dershowitz Convicts Dsk
Solomon, John, Newsweek
Byline: John Solomon
The maid was discredited. The former IMF chief got off. But was he guilty?ww
The theater-style, fluorescent-lit classroom at Harvard University's law school was virtually silent on a crisp fall afternoon. And why not? It's not every day that law students get the chance to see one of America's most famous defense lawyers assume the role of prosecutor.
There, in the pit of the classroom, Alan Dershowitz was in effect holding court as one of Manhattan District Attorney Cyrus Vance's bulldogs, making the prosecution's closing arguments to jurors in the sexual-assault trial against Dominique Strauss-Kahn that never was. Dershowitz was convinced he could secure a guilty conviction, even with the victim's credibility problems. And he was intent on teaching his students a lesson on how a courageous prosecutor could divert a jury from the weaknesses of his star witness to focus on the evidence of a sexual attack and the preposterous defense of an elitist Frenchman.
It was a tall assignment, and a role quite frankly that Dershowitz himself might never have imagined assuming. Dershowitz was known to take the side of high-profile defendants such as televangelist Jim Bakker, football star O.J. Simpson, boxer Mike Tyson, and publishing heiress Patty Hearst. And his appellate work that overturned Claus von Bulow's conviction for murdering his wife was the stuff of legal legend, reserved for books and movies.
So, true to character, Dershowitz had initially sided with Strauss-Kahn's defense when Vance's prosecutors filed documents in court June 30 identifying their concerns with housekeeper Nafissatou Diallo's credibility.
Then, while on vacation in Martha's Vineyard, he took a call from a friend, the Sofitel lawyer Lanny Davis.
Davis was convinced after lobbing hard questions at Diallo during a two-hour interview on July 18 that the housekeeper was mostly telling the truth about what happened in Strauss-Kahn's hotel suite back in May. And after carefully reviewing the evidence from the hotel--especially the time stamps on the hotel security logs and the outcry witness testimony of Diallo's hotel colleagues--he was certain prosecutors were mistaken in some of their claims that Diallo had changed her story. He saw problems with the investigative work and understood the communication gaps that a shy Guinean immigrant might face when confronted by New York's grittiest prosecutors in the pressure cooker of a court case with international consequences.
"Many rape victims have credibility issues. But what does it say to future rape victims if a case with this much physical evidence and credible outcry witnesses gets dropped because the victim lied about how she got in the country and other personal issues? Please take another look," Davis pleaded.
Dershowitz obliged. And he reversed his thinking: the decision on whether Strauss-Kahn was guilty or innocent shouldn't rest with prosecutors, but with a jury.
Soon after, Dershowitz called me up at Newsweek to describe his change of heart. He was willing to go on the record saying so.
And he wanted to do one better. For weeks he had been looking for a fresh subject for his fall legal-ethics class at Harvard. Now he had a theme: how would you, America's future lawyers, handle the DSK prosecution?
Before Dershowitz started with his mock-court lesson, though, he needed to set a few predicates for his students, now acting as the jurors. First, Dershowitz would tell the jury they had every right to doubt the accuser. Second, Dershowitz would seek to get entered into evidence a picture of Strauss-Kahn's naked body, possibly from the police forensic exam after his arrest. If that failed, Dershowitz would have to help jurors picture in their imagination a naked 62-year-old DSK--overweight and slightly hunched, his chest sunken and his skin sagging from the natural progression of age. With the ground rules established, Dershowitz took center stage.
"Ladies and gentlemen of the jury," he started, "we have enough evidence to convict this man beyond a reasonable doubt even if you don't believe the accuser. In fact, we are prepared to concede that based on statements she's made in other contexts, you would be within your right to have some suspicions about her credibility."
The classroom was silent, with students hanging on every word. "What we are asking you to do is to look at all the facts in the case and decide based on all the facts whether she is, in fact, telling the truth about this one instance, mainly that she was sexually assaulted in that hotel room," Dershowitz bellowed in his usual impassioned courtroom voice. "Ladies and gentlemen, you have seen the photograph of Dominique Strauss-Kahn naked. Now I just want you to imagine for a second him walking out of the shower, stark naked, and this young woman who you see before you, an attractive young woman, looks at him."
Finally, there are a few giggles from the jurors' box. Then another hush.
"Now the theory of the defense is that she looked at him and could not resist her lustful temptations to have seven minutes of oral sex with this man. She simply couldn't control herself," he continued, a touch of sarcasm in his voice.
"She didn't do it for pay because if she did, you would have heard in the media or this courtroom the theory that this was a financial transaction. She didn't do it because she was forced to, if you believe the defense. She did it because she wanted to. And why would she want to? The only reason she would want to, according to the defense, is that she was so lustfully driven by this beautiful 62-year-old, white-haired, overweight man's presence that she couldn't resist his chops."
Dershowitz elicited healthy laughter with that last line, a sign that the student jurors were beginning to see the absurdity of DSK's defense. Now the legal scholar wanted to remind them of the forensic evidence pointing to a sexual encounter that was forced, unplanned, and uncomfortable from the victim's point of view.
"She must have been really enticed by this man's beauty because she was willing to have this sexual encounter in just seven minutes, with her maid's uniform still on. Remember that's where we found his DNA, on her uniform top. And it doesn't appear she arrived planning on such an encounter, either. There's no nightie or sexy lingerie. In fact, she wore two pantyhose that day, hardly the attire of a woman looking for casual sex in a hotel room.
"And so we don't forget, let me remind you also where this all happened. He's rented a $3,000-a-night suite, one worthy of a honeymoon. It's got a big bed and a glorious living room. But that's not where this all went down. In fact, this sexual encounter seems to occur in the most inglorious of places. She was prostrate on the floor, her back pressed to a wall in a narrow hallway near a bathroom, right where we found that DNA. And when this encounter ends, how does the woman the defense says couldn't control her sexual desires show her appreciation? By spitting his semen on the floor and running out of the room."
The giggles and laughter are now yielding to a slow-boiling anger.
"Now, ladies and gentlemen of the jury, if you believe that story you should acquit. But if you don't believe that--if you say to yourself that there is no plausible basis for that account--then you have to seriously consider the prosecution's account: mainly that she was forced to submit to his sexual advances.
"When you then look at that and put that in the context of the timeline that morning, the semen stains on her dress, his DNA on her crotch, the sickened, disgusted way she acted in the immediate aftermath when she encountered the outcry witnesses, I'm confident you will conclude beyond a reasonable doubt that he sexually assaulted her.
"And you can do so whether or not you believe she is a woman who is generally credible in the other aspects of her life, whether or not this is a woman who has previously lied about other important matters in her life. Yes, she lied to get into the country. But so have many other immigrants seeking a better life. And yes, she told the prosecutors a bogus story about an earlier rape in her homeland because that is what her immigration adviser instructed her to memorize. We'll concede that," Dershowitz said.
"But let's not forget what tales our defendant and his surrogates have tried to get us to believe--even before his current account at this trial. At first, they said it couldn't have happened because he was out at lunch with his daughter. But that got thrown out as soon as we found his DNA mixed with her saliva in the room and on her dress. Then there were the various theories of a conspiracy, the old 'honey trap' scenario. Maybe it was his rival for the French presidency. Or the guy staying next door to him in room 2820. Or the French intelligence agents who he believed bugged and then took his IMF cellphone.
"Now, back in law school we had a name for this. We called it the 'multiple-choice defense.' And he's been playing it. You don't like this defense? Don't worry, I got another one for you ... I know you can see right through it. We're asking you to look at the totality of the evidence and the circumstances in this case and to return a just verdict that reflects the truth of what happened in suite 2806 on May 14, 2011. And I believe if you do, you will vote to convict this man of sexual assault."
Dershowitz had offered the argument that Vance's prosecutors failed to devise in weeks of deliberations after they learned of Diallo's flaws. Now, no one is certain how a jury would rule. But Dershowitz had shown that a credible case--one meeting the burden to overcome reasonable doubt--could at least be presented to a jury.
So where did Vance's team go wrong with Strauss-Kahn? Dershowitz says Vance "accepted a general rule that you can't win a sexual-assault case unless you believe the victim, and I believe that is a flawed analysis." Second, prosecutors failed to realize that had they taken the DSK case to trial, "his defense would have sunk him. Then it would become a case of who is more likely to be lying. And jurors would ultimately see he's much more likely to be lying even if she is a liar on other counts," he said.
And with that, the gavel bangs down on his court of lessons.
Excerpted from DSK: The Scandal That Brought Down Dominique Strauss-Kahn by John Solomon, out in June 2012 from Thomas Dunne Books, an imprint of St. Martin's Press.
Anatomy of a sex scandal May 14, 2011: DSK arrested at JFK after a Sofitel chambermaid accuses him of sexual assault, sent briefly to Rikers Island. June 30: D.A.'s office discloses to court that the maid lied about her background, including an earlier rape. Aug. 23: Charges against DSK dismissed; he apologizes on French TV in September.w…