Friday, July 1, 2011

The Prosecutor's Letter

Among other things, the prosecutor's letter, cited in a previous post, contains this:

In the interim betxveen the incident and her supervisor's arrival, she claimed to have remained in the same area of the main hallway on the 28" floor to which she had initially fled. The complainant testified to this version of events when questioned in the Grand jury about her actions following the incident in Suite 2806. The complainant has since admitted that this account was false and that after the incident in Suite 2806, she procee ded to clean a nearby room and then returned to Suite 2806 and began to clean that suite before she reported the incident to her supervisor.
She cleaned another room after allegedly being raped! This completely contradicts the story of her emotional distress after the events. The case is over.


bernard said...

The case is not over. It is now time for the NYPD to investigate and uncover the details of the frame-up against DSK. I have little doubt, given the letter published in the NYT, that they will make it their business to find out.

Dick Sindall said...

I'm not so sure her cleaning another room after having been (if she was) raped is necessarily a contradiction. The return to routine, especially under job pressure of getting done, could be the action of a person in shock and confused.

Arthur Goldhammer said...

It could be, Dick, but she lied about it. That is the problem. She is no longer a credible witness, no matter what happened in that room, and without her testimony, the case is over, I believe, unless there is physical evidence of violence, which we have heard nothing about.

Dick Sindall said...

I don't dispute your point about her credibility for the case, but I still have to wonder about the truth. Reversing the question, if she were planning to lie about his raping her (for whatever motivation), why would she clean another room first? She would be angling to look as credible as possible, no?

Arthur Goldhammer said...

Look, you and I can speculate ad nauseam about what might have happened. Perhaps, after collecting a tidy sum from DSK for whatever sex act was performed, it took her a while to conclude that this might just be the goose that laid the golden egg. But it would be unjust to the woman to speculate this way. On the other hand, it is unjust to DSK to assume that she is telling the unvarnished truth. So, alas, this case is over as far as the courts are concerned. As for our judgments of the human beings involved, that is a matter of individual conscience. I don't know what happened, and I will refrain from making further judgments unless and until more evidence is forthcoming. Like Bernard, I think the NYPD owes it to DSK and to France to investigate the possibility of a conspiracy. I think this is implausible, but it's not impossible. This needs to be investigated, because it has a bearing on the French polity, which has already been turned upside down by this case.

meshplate said...

I think there is a risk of forgetting that DSK and this woman did have sexual contact, as you pointed out in a previous post Art. That tawdry and, let's face it, utterly unpresidential behavior should disqualify him. It will be a new low if he becomes the candidate of the PS, and a shameful travesty for France if he were to be elected - Berlusconi all over again.

He may perhaps have been set up, but it took DSK on his own to not keep it in his pants. I could not help thinking of this as he came out of court smiling with his arm around on AS. What is there, pray, for her to be genuinely pleased about as she seemed to be? Just that he's a scumbag, but not a rapist?

Christelle Nadia said...

Hey Art, can you give me some credit/kudos/ a shout out? Remember when you were saying that DSK was politically dead because he admitted the sex and that I told you that he was never going to get convicted.
This was all too predictable. The gap between the two parties was just two wide in terms of what mattered. It was never going to be possible for the 'accuser' to be as clean as she needed to be to convict DSK given her background.
In our world, when you scream 'he raped me' you better have clean hands especially when the one you are accusing is likable/powerful/famous/rich.
We are never going to know what happened except that something did happened (it may be banal, illegal or just both), but we know who the winner is and it was predictable that he would win even though he lost a lot, but watch society and his milieu try to make it up to him.

Arthur Goldhammer said...

Christelle, I don't agree with your premise. I think that a conviction requires, at a minimum, a truthful witness, even if she is less than perfect. It was the *prosecution*, not the defense, that found the holes in her story. DSK's wealth had nothing to do with it. She lied, not just about her past but about what she did immediately after the sexual encounter. That ended any chance of conviction.

thisnameisinuse said...

'Unpresidential'? Plenty of presidents, and other leaders, have been unwilling or unable to keep it in their pants.

Or, for that matter, under their skirts.

Nothing necessarily wrong with that and if Anne Sinclair doesn't mind I don't see why I should.

Christelle Nadia said...

Art, you are agreeing with my premise. What did she lie about? Did she lie about the rape or something else?
Art, rape is one of the few cases where the accuser is put easily on trial and here the issue is that she lied and that she was as you said untruthful.
Remember the movie the Accused, Art, and then you will understand what I mean. It no longer matters whether what she said was true, because she is a liar. It is easier to accept that liars get murdered or can be the victim of any other crime than the one of rape. The problem here is that nobody wants to accept that this woman needed to be close to perfect for this to be a successful prosecution and that there was no way she was ever going to be 'credible' 'clean' enough.

thisnameisinuse said...

@Christelle Nadia

I don't think it's a case of it being 'easier to accept that liars get murdered or can be the victim of any other crime than the one of rape'. In a murder, the murdered can usually testify with his or her corpse. Here the case is built on her words, so of course her words play a greater role.

Mitch Guthman said...

Like everyone else, I’m just stunned at this turn of events. The only thing that I can think to say that might be a meaningful contribution is that over the years spent in the criminal justice system I have come to understand that many crime victims (and particularly victims of sex crimes) are often tragically flawed human beings, living in very murky ways, on the margins of society. It is the duty of law enforcement to protect the victims of crime and vindicate their rights no matter how what. Even a prostitute can be raped.

Indeed, while I agree with many of the commentators here who have argued that some specific flaw in her credibility or her background could be explained or finessed, I think Arthur is right that collectively they are an insurmountable obstacle to a sustainable conviction.

But I would like to call attention to a slightly different point, namely, the telephone conversation between the victim and a incarcerated drug deal who is apparently her boyfriend. Significantly, this was mentioned in the New York Times story but not in the Brady letter from the prosecutors. I am curious to know not only what is one that tape (assuming it exists) but also how it happened that the prosecutors became aware of the fact that the victim telephoned a particular individual who was in jail at the time. (And also why, if the tape exists, it wasn’t mentioned in the letter since it is arguably Brady material, too).

It is my guess that the taped conversation (again, if it exists) supported in some significant way the claim by DSK that the sexual encounter was consensual and also that the hotel maid was involved in some variation of the badger game (either on her own initiative or perhaps at the behest of her boyfriend/pimp). If this is so, then the issue is not whether her dubious statements to the immigration authorities and her iffy associations make her “untrustworthy” but rather whether she had herself committed a crime. (Perhaps she would have done better to hire herself a criminal defense lawyer instead of an ambulance chasing “civil litigator”).

But even if the statement on tape is simply as described by the NYT, the emotional/ethical dynamic of the case is irrevocably changed. As I’ve said in the past, the thing that made the case work for the prosecution was that, however crazy and counterintuitive her story might seem, the hotel maid would almost certainly be given the benefit of the doubt because there was such a stark contrast between her story and DSK’s claim that the sexual encounter was consensual.

And so, the only defense open to DSK and his only line of attack was to argue that he was being set up, probably as part of a badger game of some kind. Since she had everything to lose and nothing to gain by coming forward, she was certainly the more credible of the two. That’s why hiring the civil lawyer was such a mistake---it created a opening in her credibility because now she did, in fact, have a stake in the outcome of the trial. If DSK was convicted, she would be rich. If she was caught on tape discussing that prospect of becoming rich as a result of her testimony, then at that point the prosecution was simply doomed. The supposed victim was most likely the real predator and the supposed rapist really the victim.

meshplate said...

If may I think Christelle Nadia's point here is that the class gap - the abyss - which separates the worlds of DSK from the alleged victim's mean that she could not, by nature of her background, ever be on the same terrain as DSK. If you are a poor, black women from the mean streets of NY (now), you will have fallen afoul of experiences that made you dirty, and therefore not credible. So it's possible to exploit the "lost people" simply because of their worthlessness. "No one's gonna believe you, so just shut up and take it." A pretty horrible approach, but not necessarily false. In otherwords, isn't it a double standard that she would have to be Bo Peep to get a fair trial when going up against DSK? People love to say now that if you are a powerful, rich white man in today's world this counts against you. Don't believe it for a moment.

thisnameisinuse said...

I agree that differences in power can make interaction difficult, and that having certain origins can be more likely to leave you with a troubled past than other origins but I think you’re close to leaving her and those like her as perfect victims, with their wills and identities submerged in that status. If the allegations about her are true (and I don’t know if they are) they are serious and I don’t believe for a moment that they’re true of everyone with a similar origin.
And the sex, race and wealth of the accuser and the accused are irrelevant as far as the justice of conviction on another’s statements is concerned.

Mitch Guthman said...

@christelle and meshplate,

At this point, I don’t think it’s just a question of putting the victim on trial for her past sins or an unorthodox lifestyle or for being generally a liar. I don't think social equality or white privilege or anything else is at play in these developments. At best, we are talking about a series of very deliberate lies both about her past and about who she is as a person. Surely you would both agree that in a case where the physical evidence is so ambiguous and there are no independent witnesses, the credibility of both participants needs to be throughly tested?

Far more importantly, yes, she apparently did lie about the rape. According to the prosecutors' letter, the alleged victim was caught lying about essential facts concerning the "rape" itself and its aftermath. And she has done so in a why which seriously calls into question the genuineness of her emotional responses to the initial questioning by hotel employees and the police. Basically, the letter from Vance’s office says that she lied about every single essential fact in the criminal complaint.

Moreover, I would like to very strongly call your attention to the telephone conversation between the victim and a incarcerated drug deal who is apparently her boyfriend (or maybe something else). If I understand the NYT article correctly, it is highly likely that she had some sort of prearrangement by which she prostituted herself to DSK and then, having thereby come into possession of his ejaculate, used it to frame him as part of some kind of extortion plot. That makes DSK not a rapist and it make her not a rape victim but simply an astonishing inept grifter.

meshplate said...

Mitch, I have no real commitment to the idea that I floated. It's just a hypothesis, but I want to say a couple more things. Many of us are committed to normative ideas about behavior and about lying. This is only a hypothesis. If the woman did not behave according to how we think someone who has been raped on 'Law and Order' behaves does that make her not credible. The reactions to traumatic experiences are often delayed and not immediate like on TV. We may even feel guilty if we don't behave according to these norms of how real people behave because our norms for behavior are based on prejudices that may not hold up in reality. That's she has a boyfriend who is in jail and that she talked about how she might exploit the outcome of the situation to her advantage doesn't mean that the whole thing was a plot planned in advance. She may have been raped and then thought, now how do I turn this to my advantage. We would prefer that she be to traumatized to sleep, yet alone think. Again perhaps we are projecting norms of behavior that we would like victims to conform to. My fundamental point is that we may be using frameworks to judge what is credible behavior that are themselves simply projections of how we think she should behave. She may have lied precisely because she understands that. I am not arguing that this is the case, just raising things the case seems to suggest.

Mitch Guthman said...


In that light, I would say that your points are well taken and that we are largely in agreement. I think you're right to remind us that real life is a messy business and people aren't all good or all bad. Indeed, if this woman is telling the truth, then she really is a victim both of DSK and of tragic circumstance for having had her personal failings made public by no fault of her own. (although if it was indeed a setup, the same could be said of DSK, so perhaps he is deserving of some sympathy, too). If the truth is to be found anywhere, I suspect it will be found on the tape of the telephone call----it never ceases to amaze me how many people disregard those signs.

As to the "horserace", however, I think there's little doubt that the case against DSK is finished even if there might be "innocent" explanations along the lines you suggest for everything. Cumulatively their weight is just too much for the prosecution's case to carry. DSK might yet be lynched by the judicial system but clearly he can no longer be fairly convicted.

X.Trapnel said...

"She cleaned another room after allegedly being raped! This completely contradicts the story of her emotional distress after the events."

I originally thought this remark was meant as parody; looking through the comment thread, it appears not to be. This is a shame, because it's a great example of the absurdity of cultural expectations about what women who are raped are supposed to feel and do, as the very first comment rightly points out.

Goldhammer responds that what's at issue is the lying, not the propriety of her emotional response, but I think the original post is quite revealing. Certainly one can't spend any length of time reading accounts by rape survivors without being struck by how much more difficult it is to come forward due to cultural expectations that one have responded "normally" to being raped--where "normality" has absolutely *nothing* to do with any sort of research on what, in fact, most people do after such a traumatic event.

I don't doubt Goldhammer's conclusion--that this will make it impossible to secure a conviction--but the very way Goldhammer expresses this is, itself, a reflection of *why* it'll be impossible: an irrational attachment to completely evidence-free folk psychology about rape and trauma.

After reading Jose Vargas' NYT story about the lies he told in order to live a normal life in the country he was raised in, would you treat him as a less credible witness were he to accuse an ex-boyfriend of raping him, or a stranger of mugging him? I wouldn't, and I'm not sure this is any different (though the prison conversation may be more damaging).

There's a lot of evidence to suggest that our folk intuitions about the importance of "character" as a context-independent trait that applies equally in all aspects of a person's life are by and large without foundation. A dutiful husband, who would never cheat on his wife or miss a child's ballet recital, isn't any less likely to engage in fraud or embezzlement at the workplace; the different norm-violations just don't trigger the same sort of emotional-cum-affective responses. When I look at *the sort of thing* lying to the INS to keep from being deported is, or misreporting dependants on a tax form, it appears to me leagues away--practically & phenomenologically--from the sort of performance involved in lying about rape in order to extort someone.

And finally, I'll add this: surely the woman must have known that making the accusation would mean risking all of this stuff coming up, and hence subjecting *her* to prosecution or deportation. What this tells me is that she has even *less* reason to make a false accusation than some imagined Hotel Worker archetype, one with no sketchy background; she has much more to lose. To my mind, that makes her *more* credible, not less.

MYOS said...

We'll never know what really happened that day.
Regardless of what happened that day, if she lied on the stand, the case is over. It'll be impossible to convict (for our French friends, it's important to remember that if only one juror has a doubt, there cannot be a conviction).
As for her leaving suite 2806 and cleaning another room, it makes perfect sense actually - when something traumatic happens, the body goes on automaton and proceeds, until reality crashes on you and you collapse; this would explain the timeline, too (the delay between her cleaning the room and being found). Of course another hypothesis is that she planned it all, as Mitch said.
Why she lied about it, though, makes no sense (it doesn't add or subtract to her story - only the lie does.)
Also: this portrait, after the NYT's portrait 2 weeks ago, makes no sense.
But it comes from the prosecution - likely to control media exposure and fallout.
We'll never know because no jury will ever convict, hence the prosecution can't go to trial. If the physical evidence is as overwhelming as the alleged victim's lawyer said, there may be a pleabargain, although at this point DSK's Lawyers must be certain he'll get off at trial and in winning they'll score a point against Vance, hence having all reasons to refuse a plea bargain.
If there's physical evidence such as the one the lawyer mentioned, I'd be surprised if there was a straight-up dismissal. What do you think?

Mitch Guthman said...

@ X.Trapnel,

I don’t completely disagree with you that every individual will react to things differently, sometimes in ways which are counterintuitive. And, yes, cultural, sexual and class differences might sometimes explain things like this woman going to clean another room in the aftermath of a violent rape. But I think there’s a risk of fetishizing this analysis to the point where faith is exalted over reason with potentially absurd and unfair results.

Let me give you one example:

It seems to me that the significance of the lie about what she did immediately after leaving DSK’s suite has less to do with her credibility as it does with the way it changes the timeline. When she first told her story, the period of time between when she left DSK’s suite and her being “discovered” in a “distraught” condition was very short---a matter of a few minutes---and it would have arguably been quite difficult for her to manufacture the evidence of sexual assault in that short time. Also, because she was supposedly in a place where hotel staff and others came and went unpredictably she could not have been certain that her adjustments to her clothing and her person could be accomplished undisturbed. This added somewhat to her credibility.

But now we know that there was a much longer period of time between the alleged rape and the discovery by the supervisor. More than enough time to have put the marks and scratches on her body and so forth. And, because she went into another room and closed the door, she had plenty of time to work undisturbed and to make certain that she was not “discovered” until she was ready. So you can see that it isn’t simply the fact the she was untruthful that matters but rather it is that she lied about an absolutely crucial period of time.

Now, one possible explanation is shock (individuals react differently). Another might be these differences of gender, race, class and national origin which are frequently mentioned here. But yet another might be that she hid in that room because she was timing things so that she could accomplish the tasks necessary to framing DSK such as bruising, scratching and cutting herself and tearing her clothing before being discovered. Perhaps it was also in her mind to wait (as we know she did) until after DSK had left the hotel before allowing herself to be discovered so as to create the impression that he had fled the hotel only a few minutes after the rape. Again, this is demonstrating the significance not so much of the lie itself but of the fact that she lied about where she was and what she was doing immediately after the rape. And, it turns out, where she was and what she was doing has become very important.

Time after time, people (not just you) have sought to explain away this woman’s lies and suspicious behavior on the grounds of cultural, racial, sexual or class differences. I’m not saying that the approach is totally without merit but I am asking how many times can you go to that well before logical analysis is discarded altogether in favor of an irrebuttable presumption in favor of the downtrodden?

As to your final point that she had more to lose by coming forward and must have known that her background would come out as a result. Hard to say. Maybe she didn’t think things through. Maybe she comes from a culture where she expected to simply be paid off to go away without making a fuss. Maybe she read about the Kobe Bryant case in People Magazine. Maybe she’s run the badger game before but didn’t think through the implications of actually calling the cops or maybe she assumed that the hotel wouldn't call the cops on a rich, important guest---that something could be worked out privately. Maybe she was part of a crew that ran the badger game in that hotel, decided to freelance and turns out not to have really known how that con is played. Who knows? The jails are full of really stupid, illogical criminals who have made really stupid, illogical mistakes.

Mitch Guthman said...


I just don’t know what to think. I agree the case seems to be over but your point about the physical evidence makes me wonder. According to the media reports, there are two pieces of physical evidence which independently corroborate the accuser’s story, namely, the fact that she supposedly threw him against a table---the edge of which tore a large gash in his side or back and he supposedly bleed all over the bed.

Now, for the reasons which I discussed previously (at admittedly excessive and obsessive length), most of the physical evidence such as DSK’s semen is either equivocal (i.e., the presence of ejaculate tells you sex took place but nothing about whether it was love, prostitution or rape) or depends largely on the victim’s credibility against an expected defense of “setup” or badger game (i.e., scratches and vaginal bruising self inflected, she tore her own dress, she is lying, it’s all a con, etc).

But anything on DSK’s body arguably is different because it’s obviously harder, maybe impossible for her and any confederates to set up. If DSK has such a wound and if there was blood found in his suite (as these news stories claim) then it seems to me that the case could actually continue and he might even be convicted. After all, this would be powerful, independent corroboration of her story. Maybe she’d get beat-up real bad and she'll have to admit to lying. A lot. But a jury might buy what you and others have been saying about her state of mind, how her background explains it all, she was scared and the lies got out of control, etc. A jury might just buy that line if it’s backed-up with some really solid physical evidence that couldn’t have been planted by her.

My best guess is twofold:

First, odds are there is no such physical evidence. DSK does not have such a wound and his blood was not found in his suite. She’s everything, the state's whole case and right now she is very badly damaged goods. If that stuff really existed, we’d be reading about it every day in the NYT and the Post. Her lawyer would have shouted about it in his press conference today. This strongly suggests it doesn’t exist. Whether he raped her or not, DSK isn’t pleading to anything.

Second, I’m still really intrigued by the NY Times report of the telephone conversation between the victim and the convict boyfriend. That tape could be the only way we’ll ever really know what happened. The NY Times report, which presumably came from the district attorney’s office, just said that she discussed the prospect of receiving money as a result of her testimony. Now, the really interesting thing is that this isn’t included in the letter to DSK’s lawyers even though it seems to be dead bang Brady material. Much more so than what was actually included in the letter. Yet it seems that DSK’s lawyers didn’t kick up a fuss about not being “officially” informed about something this big---something which really would put some pizzazz in that set-up defense and give it top dollar jury appeal.

To continue with even less grounded, purely idle speculation: I keep asking myself why wasn’t the tape mentioned in the letter and why didn’t DSK’s lawyers go berserk that it wasn’t? The only reason I can think of is that they were told about the contents of the tape privately and the prosecutors and senior detectives didn’t want the existence of the tape disclosed (and the defense was apparently willing to cooperate---but then why did the prosecution leak it to the NYT in the first place? Very confusing). But I'm thinking that maybe that’s the other shoe getting ready to drop. Could be the victim is a potential collar?

thisnameisinuse said...

@ X.Trapnel

I thought that what Art meant was that her cleaning the room contradicts the earlier story of her trauma (that she fled the room and waited to report what had happened to a supervisor), not that her behaviour in the new story is in itself unbelievable.

And there is the horrible fact that bad things happen to those who have cried wolf (I lay awake last night thinking 'but what if this time she's telling the truth?') but that doesn't alter the fact that people also continue to lie and that without considerable other evidence (which in this case there may still be), I don't see how you can justly convict someone based on such a person's testimony.

thisnameisinuse said...

p.s. I hardly know anything about the Jose Vargas case, so I can't really comment much, but I think there's quite a difference in the type, aim, and current status of the lying (she seems to have continued to develop her lies and to have been lying to make herself appear a victim). According to the prosecutor's letter, she even convincingly lied (twice) to assistant D.A.s about a previous rape. Whereas for Vargas, subsequent lies were the result of the necessity of concealing the original lie? Although even in his case, with what seem to be lesser deceptions, with lesser potential consequences (since he's not involved in a criminal trial), people are saying similar things:

'The trouble with habitual liars, and Vargas confesses to having told lie after lie to protect himself from deportation, is that they tend to get too good at it. Lying becomes reflex. And a confessed liar is not somebody you want working on your newspaper.'

- Jack Shafer

MYOS said...

The info we get is that
- in the phone translation, she told a story of the assault consistent with what she'd told law enforcement. She was speaking in a little-understood language and it's dubious she realized the call was being recorded so she had no reason to lie. It's very possible that she was assaulted and then figured she would exploit the fact. (If you survived lifelong life-and-death situations you learn that exploitation skill.)
- she lied about the circumstances of her rape in Guinea, not about the fact that she was raped (if that makes sense).
- I'm wondering whether NYPD didn't stumble onto a larger case, perhaps one already investigated by the FBI or such, which would explain why the defense didn't scream about the phone call.