Saturday, May 14, 2011

Still in shock

I'm still in shock. I had just yesterday finished an op-ed piece for the Harvard Crimson analyzing DSK's likely election strategy. Time for a rewrite.

Like everyone else, I have heard all the stories about DSK's sexual misbehavior over the years. I have long feared that an episode from his past would emerge to sink his campaign, but never in my wildest dreams did I imagine that he could or would do something as wanton and brutal as what he is alleged to have done, especially with so much at stake. Of course he remains innocent until proven guilty. The details of the charges remain quite sketchy, and his version of the event has not yet been given publicly. But it is difficult to believe that the police would have arrested such an important figure without probable cause, and the uncertainty, not to mention the seriousness of the charge, will surely be enough to preclude a presidential run. In addition, we will now hear a lot more about this episode and about the book Sexus Politicus (h/t KB). Normally I avoid this kind of gossip on the blog, but ....

So the entire presidential landscape has been remade in an instant.


Vertigo said...

this is what makes politics so interesting... can't wait to see who this will unravel. Truly epic even though I was familiar with the rumors of DSK's sexual misbehavior.. we shall see.

Cincinna said...

This isn't gossip. The articles in the NYT , NY Daily News, and The NY Post are accurate.
According to my sources in the Manhattan DA's Office, DSK was taken off the plane by the NY/NJ Port Authority on orders from the NYPD. he was brought in for questioning, He is being questioned by the NYPD Special Victim's Unit.
Although conspiracy theories are running wild in France, there is evidence. And the victim was able to escape, and her colleagues called 911 immediately.
DSK's cell phone was found in the hotel room.
Possibility he will be arraigned tonight.

Vertigo said...

CNN is saying that he is not collaborating with the police. CNN also said he left in a hurry and left some things in the hotel.

Mitch Guthman said...
This comment has been removed by the author.
Cincinna said...

@Vertigo Under American Law, DSK, like anyone in police custody has the right to remain silent. Any lawyer would advise him to keep his mouth shut until he is formally arraigned & charged. The Judge will then ask him"how do you plead? Guilty, or not guilty? He will then probably respond," not guilty, your Honor" and his attorney will request that bail be set.
Tonight, however, M. Strauss-Kahn is spending the night in custody, as the guest of the NYPD.

Cincinna said...

The story is getting huge coverage locally in NYC, and nationally. 
is running this as top story! 


Mitch Guthman said...

I wouldn’t rush to judgment just yet. Yes, DSK’s got form but this type of sexual assault is very, very difficult to prove. I’d be looking at two things as indicators of the strength of the prosecution's case: (1) if the alleged incident was supposed to have taken place today (Saturday) and DSK was booked on that flight prior to the incident then there would be no “flight” and no inference of guilt.

(2) whether he was questioned by the police before he was arrested. This is absolutely crucial because physical evidence in sex cases is generally equivocal. Typically, physical evidence is incriminating only if it’s made “good” through police questioning of the suspect before trial. The idea being to lock the suspect into a defense that can then be contradicted by the physical evidence. So, for example, the police might ask whether the suspect knows the victim, had prior contact with the victim and, specifically, did he have sex with her. Assuming that the suspect is (a) lacking a plausible reason for being with the defendant and (b) is unaware that physical evidence exists, he may choose to answer that he doesn’t know the victim and it’s all a mistake. (“I was in Baton Rouge that night”). This is obviously more usual in “stranger” rapes but it’s totally dependent on the suspect being questioned before he becomes aware that physical evidence (typically the rape kit) was recovered.

But if the police are unable to lock the suspect in to a particular version of event before he becomes aware of the physical evidence or, more typically, where it is something akin to “date rape”, the defense of choice will almost always be consent---which, of course, renders the physical evidence meaningless. That’s why it’s essential to know whether DSK was questioned and denied a sexual encounter. If not, then he has tremendous flexibility to craft a defense.

Also, consent might be an especially strong defense, depending on who the victim turns out to be. His history as a serial philanderer might lend credence to either a claim of a purely consensual encounter gone awry or a claim that he was deliberately set up in a badger game. In any case, he is not some loser ex-con who broke into a house at 3 am and somehow had “consensual” sex with the victim. DSK was in his own hotel room and, I guess, is sort of plausible as a guy who could maybe charm an impressionable woman into bed. At which point, It’s classic “he said, she said”.

That’s why, if he hasn’t been questioned yet, his lawyer will tell him to keep his mouth shut and and, dollars to donuts, the case won’t make. If he hasn’t been questioned, he can just wait and see what the prosecution has before committing himself. Plus, there’s just too many strong defense avenues to pursue if he hasn’t been questioned and locked into a specific version of events---such as, for example, saying that, yes, he had sex with her but for money(about which he feels bad) and then (he might say) the woman said that if he didn’t pay even more money, she would holler for the cops and claim it was rape.

In court, the truth is whatever you can make at least one juror believe. No more, no less. If they failed to lock him in to “don’t know this lady, never had sex with her” before he left for the airport, then all the physical evidence in the world won’t do them a bit of good. And if there’s a claim by DSK of shakedown, then everything is even more equivocal: The fact that she told her friends right away might mean she told them right away (a strong point for rape) or it might mean her friends are really accomplices in the shakedown; calling the police might be a sign the alleged victim is telling the truth or it might be just the opening salvo designed to pressure DSK into a nice out of court settlement. He has a past history of sexual misconduct that publicly available---maybe it establishes propensity for rape or maybe it just means it’s a badger game and they chose their victim well.

meshplate said...

This could very well be a case of extortion or It could also be what appears to be. If so, DSK just committed political as well as career suicide very deliberately. On the other hand, it may be he has been getting away with this kind of thing for years - buying himself an out from accusations with large cash sums proffered quickly post factum. It seems just incredible to even try this sort of thing unless he was a) somehow an old hand at it, or unless b) it was some kind of sting or c) a incredible act of unconscious self-destruction.

meshplate said...

If DSK is a well-known abuser of power and position, it appears this is known in the French media where there is a gentleman's agreement to not talk about such matters, whether DSK's or anyone else's. It seems that a woman working in the field of politics in France that doesn't get "propositioned" is an exceptional case. Everyone knows this and it's par for the course. That is not to endorse it, but surely it's time to stop pretending that the french way is so sophisticated which is just a weak excuse for bad behavior and chauvinism.

Steven Rendall said...

Woke up this morning to this shocker (the news apparently broke in France during the night)and was amazed to find your blog already on top of it, and with a number of enlightening comments by readers. My wife's first reaction--after the shock--was to wonder whether UMP agents could have set up DSK. Maybe she's been in France too long-or not.

Mitch Guthman said...

@ meshplate,

I seriously doubt whether anyone would believe that the sort of “gentlemen’s agreement” you’re describing would encompass an act which seems so unambiguously to be rape. Yet that is exactly what DSK must have believed if he committed the acts as described by the various news leaks. He must have almost suicidally thrown all caution to the winds and decided to rape the next hotel worker to enter his suite or else he believed that he could do such a thing with total impunity. DSK has shown remarkably poor judgment in sexual matters over the years (some proved, others mere accusations) but I find it difficult to accept that he is so divorced from reality that he believed that this woman would simply accept being raped by a VIP as a part of her job and that she either wouldn’t report it or that, if she did, nothing would ever come of it.

The sequence of events has too many gaps and inconsistencies and it seems that the only way to reconcile them is to assume that either that DSK was consumed by lunacy or is so egomaniacal as to believe that an almost public rape would simply be overlooked by the authorities. The whole things seems a bit off, so I’m leaning towards badger game but maybe the prosecution has a much stronger case that explains the seeming inconsistencies and fills in the gaps. It will be interesting to see how it plays out.

Cincinna said...

@ Mitch Guthman
I sure hope you're not a lawyer and only getting your legal info from TV and polars. It sounds like you watch too much Perry Mason and read too many Maigret. 
DSK has a long standing arrangement with Air France that he can get a 1st class seat on any plane at any time w/out reservation or ticket. 
  There is evidence of flight, even though is not necessary evidence in a case. He left in such a hurry he left his cell phone and personal items behind. I'm hearing from my sources in the NY County DA's Office that is not all he left
in the room. 
As to whether he was questioned by the police before he was arrested, I'm hoping you are not a cop or a lawyer. 
  NYPD has more experience in dealing with high profile alleged perps than any other jurisdiction in the world. I know for a fact that Police Commissioner Ray Kelly and DA Cy Vance are overseeing every detail. 
  No one is questioned before they are arrested and Mirandized. Under our system, unless he waives his rights, he has the right to remain silent. I understand he has not spoken to the police. 
 As for Physical evidence "Res ipsa loquitur" the thing speaks for itself. 
  His lawyers first shot, will be,  IMHO, some sort of Diplomatic immunity protection via his UN role. In NY that most likely will fail. He then will have to plead guilty or not guilty. His lawyer will ask for bail. He may be considered a high flight risk, so very high bail will be asked. 
  The case will be pit on the Grand Jury calendar and go before a Grand Jury to determine if a crime has been committed and if there is sufficient evidence to warrant a trial. Grand Jury proceedings are held in secret and the accused does not have the right to an Attorney. 
  If the Grand Jury finds sufficient evidence, they will hand up an indictment, and a Trial date will be set. 
  In many criminal trials, only a majority is needed
to convict. Unanimous juries are mostly required in felony cases and death penalty cases.

Cincinna said...

New York prosecutors on Sunday charged IMF chief Dominique Strauss-Kahn with a criminal sexual act, attempted rape and unlawful imprisonment in the alleged sexual assault of a hotel maid in New York City, police said.

Strauss-Kahn is expected to be brought before a state court judge later on Sunday. His attorney, Benjamin Brafman, said in an email to Reuters Strauss-Kahn "will plead not guilty."

Mitch Guthman said...


1. Whether there is evidence of flight will depend on whether DSK was previously scheduled to leave on Saturday. “Flight” in the criminal law has a peculiar meaning. The fact that DSK left in such haste (and left things behind) would probably not be considered circumstantial evidence of consciousness of guilt and therefore of guilt itself if he was supposed to depart on Saturday. The courts have been strict in requiring more than just running away in temporal proximity to the crime. Increasingly, unambiguous proof that the defendant fled to avoid apprehension for a particular crime and for no other reason is required. Here, as I mentioned, it’s a question of timing. If DSK was scheduled to depart on Saturday (and especially if he held a ticket for that particular flight), then it is likely that evidence of his hasty departure would not be admitted (too prejudicial) and the flight instruction telling the jurors that they can reason from his running away to his guilt would not be given. If he left early, then it’s first a question of law for the judge and the argument would revolve around his possible reasons for leaving early.

2. There is nothing improper about speaking with a person without reading him his Miranda rights and the NYPD permits this under a number of circumstances. If, say, DSK was questioned before being Mirandized but when he was not detained, that wouldn’t be a problem. Once you've been arrested and advised of your rights, it’s up to you to assert them. So, within limits, the police and talk to him and if he is fool enough to reply, so be it. If memory serves, the one peculiarity in New York is that might come into play if the news reports are right is that, to slightly oversimplify, an arrested person’s lawyer can also assert his right to remain silent even if the suspect does not. Thus, the question would be whether DSK was somehow kept from communicating with his lawyer so that his lawyer couldn’t assert the client’s right to remain silent and stop the questioning. However, if your information is correct and DSK made no statement then discussions of Miranda are moot.

For what it’s worth, I am a no-longer practicing lawyer. I was a prosecutor for some years and then (with some important exceptions) mostly represented criminals after that. And, yes, I did and still do watch lots of Perry Mason. I have all the DVD’s. It is a great guilty pleasure. Very few lawyers have that kind of courtroom presence and style but it’s what we all want to be and sometimes think we are (and, actually, he was a good cross-examiner).

Anonymous said...

I liked DSK as a person, but went off him went he got the IMF top job with Sarkozy's support (at the time, some were saying it was all a devilish Sarko plot to send his rival to a country addicted to politician sex scandals, rather than in France, where DSK's foible, while well-known, didn't upset many people).

I wanted this "socialist" out of the presidential race, but not like this ! Either the guy suddenly went mad, or it is another act in the smear campaign against him which had been unfolding in recent days.


Mitch Guthman said...


To address a couple of your other points where I may have unintentionally created some confusion:

1. Physical evidence: I may not have been entirely clear about the problem of using physical evidence, usually rape kit evidence, in sexual assault cases and the relationship of that evidence with the necessity of good interrogating or interviewing techniques. Physical evidence by itself (usually what is called “trace” evidence) is frequently of limited utility in sex crimes prosecutions. Fingerprints, blood, hair and so forth can be used to prove that a person was present at a particular place, but not why he was there. Rape kit evidence can be used to prove (basically) intimate physical contact, but not whether the act was one of love or rape. Trace evidence can only establish the fact of a person having been someplace or, say, the fact that sexual intercourse took place. It almost never sheds light on whether a particular sex act was an act of rape because, to oversimplify, the difference between lovemaking and rape is one of context and intent. Quite simply, physical evidence does not actually speak for itself.

But physical evidence is very useful in sex crimes for narrowing issues, foreclosing defenses and supporting the credibility of the victim. It is especially useful for negating the all-important defense of consent and for keeping defendants off the witness stand. Think about the example I gave of the suspect who is questioned but who isn’t aware that trace evidence places him at the scene and proves that intercourse took place. When the suspect is questioned and he offers an alibi (“I was in Baton Rouge”), he is denying that he was present and that he had sex with the victim. If the trace evidence proves he was there and that he’s the one who had sex with the victim, it proves the defendant a liar and also indirectly is circumstantial evidence of guilt. And because he’s locked in to his alibi, it’s going to be really difficult to shift to a defense of consent and try to put the victim on trial. That's why it's essential to get on to the suspect as early as possible and question him before he gets to see the cards in your hand.

To relate this back to the DSK case, if they didn’t lock him in to a version of events in which he denies physical contact with the alleged victim, then he will have considerable flexibility in selecting a defense which will answer the facts, including the physical evidence. Should it turn out that the prosecution has evidence of sexual intimacy between these people, DSK might well offer a defense of consent. Once the defense is that of consent, the fact that the prosecution has physical evidence to prove sexual contact is no longer important. The physical acts are conceded, only the question of intent remains. The physical evidence (if it is mostly ejaculate, hair or skin) cannot speak to what was in DSK’s mind at the time.

[Obviously, if the physical evidence also includes pictures showing that DSK (or somebody) beat the living crap out of her, then he’s stuck with either pleading to something or arguing badger game as a defense. Badger game as a defense would be very hard to do but much would depend on the alleged victim).

2. I doubt very seriously if DSK is in custody. I doubt even more seriously that the prosecutors will try to “no bail” him or set a high bail. He is, after all, the head of the IMF and not some low-life three-time loser. He is simply not a flight risk and any prosecutor making that argument would be laughed out of court.

You do, however, raise a couple of interesting points about DSK as a flight risk. My assumption is that DSK didn’t enter this country as a French diplomat, because basically, he isn’t one. But I am curious about the legal status of the IMF and of IMF personnel stationed in the USA. Is there is some kind of treaty like with some of the UN’s agencies? What kind of papers does the IMF staff use?

Anonymous said...

According to the NYT, he is in custody, and is to be arraigned. I don't think there's any way he could have diplomatic immunity, because he doesn't represent France.

But the whole thing is so odd it makes me wonder if DSK isn't addicted to pain-killers or taking some kind of meds/drugs that would make him flip out. He may be used to females spreading their legs when they work with him, but he can't be stupid enough to think that an old, fat man with gray hair can just jump a chambermain in a hotely in NYC with impunity.

Cincinna said...

DSK is indeed in police custody. He has been charged.

As to bail: the Roman Polanski case is still fresh in everyone's mind. Rich powerful people accused if crimes which carry a heavy prison sentence usually get very high bail. $2-5 Million would be my guess
As to physical evidence, DNA evidence is no longer taken as an absolute.

I, too, am a recovering lawyer. I love to watch Law and Order, Perry Mason, read Agatha Christie and Maigret, Poirot and Rumpole, and my favorite Witness For Thr Prosecution. I have moved on to another profession, but we cant get the love of the Law out of our system, can we?

Cincinna said...


IMF chief charged with sex attack in New York hotel

IMF chief and possible French presidential contender Dominique Strauss-Kahn was arrested and charged with an alleged sexual assault, including an attempted rape, on a hotel maid in New York City, police said on Sunday.
Strauss-Kahn, was removed from an Air France plane minutes before it was to take off for Paris from John F Kennedy International Airport on Saturday, New York police spokesman Paul Browne said.
Browne said Strauss-Kahn was formally arrested at 2:15 a.m. on Sunday on charges of criminal sexual act, attempted rape and unlawful imprisonment.
A lawyer representing Strauss-Kahn, Benjamin Brafman, told Reuters in an email that the International Monetary Fund chief "will plead not guilty." Brafman made no further comment.
A 32-year-old maid filed a sexual assault complaint after fleeing the $3,000-a-night hotel suite at the Sofitel in Times Square where the alleged incident occurred around 1 p.m. on Saturday, Browne said.
Strauss-Kahn, 62, who has been considered a possible Socialist Party candidate in the French presidential election in April and May 2012, appeared to have fled the hotel after the incident, the police spokesman said.
Browne told Reuters an account of events which led to the state charges against Strauss-Kahn. "She told detectives he came out of the bathroom naked, ran down a hallway to the foyer where she was, pulled her into a bedroom and began to sexually assault her, according to her account."
"She pulled away from him and he dragged her down a hallway into the bathroom where he engaged in a criminal sexual act, according to her account to detectives. He tried to lock her into the hotel room," Browne added.
Browne said Strauss-Kahn does not have diplomatic immunity. He is expected to be brought before state court on Sunday.
According to New York state law, a criminal sexual act includes forcibly compelling someone to engage in oral sex. The offence carries a potential sentence of 15-20 years, the same as attempted rape. Unlawful imprisonment carries a potential sentence of three to five years.

The IMF managing director has yet to say whether he will run for president, although French opinion polls put him as a clear winner over conservative incumbent Nicolas Sarkozy if the two faced off in an election.
"The NYPD realized he had fled, he had left his cell phone behind," Browne said. "We learned he was on an Air France plane. They held the plane and he was taken off and is now being held in police custody for questioning."
After being removed from the aircraft's first-class section, he was taken to the police department's Special Victims Unit in Manhattan, known to viewers of a hit U.S. television show based on its work.
The woman, who has not been named, "was brought by EMS (emergency medical services) to the Roosevelt Hospital, where she was treated for minor injuries," Browne said.

Anonymous said...

I remember a French journalist alleging rape and that some "things" were made to "go away".

He may have done it before and found a way to buy his way out of it?

In any case, I doubt the IMF will keep him on. Would he really run in the primaries with such a rap sheet and no job?

Unbelief and suspicion of entrapment are the two main reactions here. Politicians won't touch this with a ten-foot-pole.

Jean Marie Le Guen, a friend of DSK's, stated that DSK was a "dragueur" but that he wasn't a violent man. As if "violent, physical coercion" and beating up the person was needed for it to be a sexual assault - hasn't he heard of "no is no" ie., consent?

Apparently at this point DSK is pleading not guilty to all charges and is being held in police custody till arraigned at 12-noon.

Anonymous said...

Ok, let us imagine that Boutin and apparently a very large number of French people, are right:
his basically-garanteed-win threatened Sarkozy who sent agents to take him out of the race; therefore, "barbouzes" set him up and sent a good-looking woman into his room so that he'd jump her and she could claim sexual assault.
... well, that can ONLY be done if they know that the sight of a fetching maid will make him take leave of his senses and he won't be able to stop himself.
So, EVEN if it's a set up, I can't imagine that kind of guy in charge of a country.
Because with an expensive suit or not and managing director title or not, it's either pathological or sexual predation.

Anonymous said...

It seems clear that the maid in question was an employee of the hotel; no one has suggested otherwise. So the possibility of setting up something like that seems ludicrous.