Monday, August 8, 2011

Today in DSK

It hardly seems to matter any more, what with the world careering out of control and all, but the DSK affair has passed another milestone:

Nafissatou Diallo a déposé plainte au civil contre DSK

Nafissatou Diallo, la femme de chambre qui accuse Dominique Strauss-Kahn de viol, a déposé une plainte contre celui-ci devant une instance de la justice civile de New York, selon l'agence Reuters. Elle entend y obtenir des dommages et intérêts en raison de l'"agression sadique" dont elle affirme avoir été l'objet.


Cincinna said...

Here is an article in English from the WSJ

along with a 
copy of the actual Civil Complaint filed in Bronx County, NY where Ms Diallo resides. 
  If there is any place on this planet where DSK does not want to face a trial by Jury, it is in the Bronx. 
  Bronx juries are known for their very generous damages awards to 
plaintiffs. It is a trial lawyers dream paradise and a defendant's nightmare. 
 If you have a strong stomach, read the Complaint:

My husband and all his Criminal law colleagues, especially the old timers say this definitely means DA Vance is planning on dropping the Criminal charges.   Of course, that means IMHO he will be former Manhattan DA Vance come next election time. 

Mitch Guthman said...

I agree the DSK case isn’t particularly important considering all that’s going on in the world but it’s very entertaining. After all, the circus doesn't come to town everyday.

I continue to think that this case is going to dissipate into nothingness of its own weight. I think Cincinna’s take on the future of the criminal case reflects the overwhelming consensus of the criminal bar. Yet, Cincinna’s comments remind me again that while Thompson and Vance probably can’t convict DSK they might yet be able to orchestrate a good lynching.

I do take issue with Cincinna on one point. I don’t think DSK’s lawyers are quaking in their boots about being lynched by any Bronx jury because they will almost certainly remove the case to federal court on the basis of diversity or alienage jurisdiction (28 U.S.C. §1332). Apart from the potential to discredit Nafissatou Diallo as a greedy schemer, the civil case presents a cornucopia of riches for sidetracking or even destroying the criminal prosecution. Either Vance has totally lost control of the players on his side or he has surprisingly little knowledge of the law about parallel civil and criminal proceedings.

The first problem is going to be discovery. Vance, Thompson or Diallo (depending on who is actually calling the shots) isn’t going to get any. None. DSK won’t have to give a deposition, produce documents or answer admissions about, say, other potential victims. The plaintiff will get absolutely nothing while the criminal case is pending.

DSK, on the other hand, probably gets broad discovery to support motions to dismiss. So, potentially, he gets to depose anybody he wants, especially Diallo.

The more interesting problem, as I see it, is whether DSK will play the famous “Fast Black” card to create confusion in the criminal case or even completely derail it. He could, for example, play with the ambiguities of Thompson’s role as a semi-official member of the prosecution team. My guess is Thompson knows a lot of interesting but typically non-discoverable stuff about potential witnesses, avenues of investigation, dirt on people. Nothing stops DSK’s lawyers from making a demand for production in the civil case. They could even send Vance a federal subpoena for all of those materials in his case file on the basis that they are essential to DSK’s defense in the civil case and are freely discoverable in civil proceedings (in part because,arguably, the People have waived state law privileges against discovery by essentially being “partners” with Thompson. Whether that’s true or not is hard to say but would certainly be great fun if DSK’s lawyers argue they’re entitled to discovery on the question as part of trying to find out).

DSK can also go the full “Fast Black” route with a motion in the criminal case for access to Thompson’s own investigative files and whatever materials he’s collected from the prosecution on the grounds that they are essential to DSK’s defense and he can't get a fair trial without access to Thompson's civil files.

All very long shots, it’s true, but any of these steps by DSK would be a virtual hornets nest among the prosecutors. The potential for hearings, motions and interlocutory appeals is really just endless. If DSK is willing to spend money on lawyers, he really can’t be forced to trial during the 21st century.

There is also the more mundane question of how Thompson will handle settlement negotiations. Most federal courts are “rocket dockets” meaning that cases are expected to move on a very fast track. Assuming that the case is removed to Federal court, Diallo will be expected to participate in settlement conferences within 60 days of filing of the case being removed. Her participation in actual “settlement” negotiations is a smörgåsbord of land-mines.

Tom Holzman said...

Remember that DSK has access to practically unlimited funds. This will be quite entertaining and potentially quite nasty. I will be glad to charge admission and someone else can sell popcorn.

Cincinna said...

    I am appalled and shocked by your racially incendiary comments, so ill advised in a situation like this.  Using terms like "lynching" are, IMO, totally inappropriate. 
    The fact that all the usual suspects, the race hustlers, from Al Sharpton to Malik Zulu Shabazz, have glommed onto this case  is regrettable, although predictable. The situation has become so racially charged there is no need to pour oil on the fire. 
    Arguing for a change of venue from the Bronx will go
nowhere. There is diversity in the jury pool in the Bronx.  I know it would be a nightmare for DSK in the Bronx is because it, and Brooklyn are trial lawyer's paradise where juries in person injury cases love to give plaintiffs big bucks.
His lawyers will try to get it transferred to Federal Court because he is a foreign national. I'm not sure of his actual immigration status. He worked for the IMF and has residences in NY & DC.
Bronx residents are mainly lower middle class -working people, black and white, who are known to give enormous settlements in cases like this. 
  Since the plaintiff  is a Bronx resident, the venue is correct.
  The real problem in the criminal case comes from two sources: DSK's lawyers who stated to the press they had investigators scouring Africa for info on the maid. 
The other is the utter incompetence of Vance and his inability to control his office. Trust me, there were no leaks under Morganthau. 
  Given the unlimited financial resources of DSK, and being sabotaged by the DA, I believe Ms Diallo had little choice but to go public. 
  The next election will take care of Vance, but what about Ms Diallo? Her story rings true to me, and the forensic evidence backs it up. 
  If Vance drops the criminal case, there will be hell to pay. Most NYers of all races are more sympathetic to the plight of a poor working woman than to some foreign elitist mucky muck who thinks he can buy anything and anyone. NYers also have no sympathy for sexual deviants. 
 In any event, the civil case will go forward. In a Civil trial the standard is not "beyond a reasonable doubt"   but "preponderance of the evidence", and with no unanimous Jury verdict needed in NY, just a majority, DSK's chances of winning are very slim indeed. He should see the writing on the wall & get his wife to write a big check, make some sort of apology, and go into Rehab & back to France. 

Mitch Guthman said...


With all respect, I think the racial connotations are pretty attenuated and, besides, when people start talking about playing to the racial, economic and xenophobic prejudices of jurors as the basis for a legal strategy, well, in my book that’s a lynching even if it’s done in a courthouse.

When the district attorney talks about having a trial despite the obvious problems with the evidence and the victim and he does so in the context of talk about how New York juries won’t like DSK because he’s an “elite” or “foreign” or a rich white man or French, then I think we know where he’s coming from. You don’t take criminal case to trial with these problems because you need black support at reelection time or because you might force a plea to cover up your own incompetence.

Also, I think DSK’s chances of “winning” a civil suit are actually pretty good (by which I mean, not having to pay Diallo any money). DSK can unquestionably remove the case if he wants. He will certainly ask to have the case stayed because he arguably can’t properly defend himself until he is no longer in criminal jeopardy That’s not such a silly prospect in light of the apparently close working relationship between Thompson and Vance. No federal judge is going to allow Thompson to be Vance’s stalking horse until it is clear that DSK can’t be charged with a crime.

Then there is the question of evidence. Diallo has none. It’s all in the custody of the state and federal governments. No federal judge is going to order Vance to turn over grand jury materials and physical evidence in an open criminal investigation and the investigation is technically “open” until the statute runs. That’s the reason why I’ve always pointed out that Diallo benefits greatly from a conviction and why it was a mistake to file the civil case unless DSK was already convicted.

But mainly, there are enormous procedural obstacles to be overcome before Diallo can ever get before a jury. There are the issues I mentioned earlier about what Vance should be compelled to turn and his relationship with Thompson. It’s probably good for at least a couple of years worth of hearings and appeals. If Vance objects to anything, that makes it even more complicated and probably adds another year or two in terms of sorting out discovery issues.

While on the subject of discovery, DSK’s lawyers will absolutely, positively be sending out subpoenas to every single news organization that ever interviewed Nafissatou Diallo demanding outtakes, reporter’s notes and every off the record statement she made. None of these news organizations are going to cooperate and it is very likely that the actual trial won’t commence for years while this gets sorted out. “Fast Black’s” morally warped legal strategy for beating a murder rap probably works nearly as well in a civil case like this (which is moving parallel to a criminal case) as it does in the regular criminal context

Really, if DSK decides on a fight to the finish, this is going to be very messy and ruinously expensive business for Diallo and Thompson. Who’s going to pay the millions it might take just to get to trial? And then there is the question of the verdict, which is by no means assured. I personally am inclined to think that DSK tried to rape Tristane Banon and he is unquestionably proven to be a world-class cad and a particularly boorish man. The evidence on the instant case is leaning Diallo’s way (though mostly based on evidence that I don’t think would be admitted at a trial) but she’s got a lot of credibility problems herself and it isn’t clear to me that she actually could show that it was more probably than not that DSK raped her as opposed to just stiffing her on promised money for actual sex , especially if there’s no criminal conviction to show the jury. Alternatively, DSK could just return to France after the criminal charges are dropped and see how well Diallo does at collecting there.

Nafissatou Diallo shouldn't count her golden chickens until they’re hatched.

Cincinna said...

"..they (DSK's lawyers) will almost certainly remove the case to federal court on the basis of diversity"
  They will try claiming he is not a resident if NY, but of DC which is not a State.  Diallo's lawyers have anticipated that by stating in the complaint that DSK is a resident if NY. 
  There can be no change of venue for "diversity". They will try and get the Civil case out of the Bronx into Federal Court, using the Constitutional provision in ARTICLE III claiming DSK is not a resident of NY, but of DC. Diallo's lawyers have anticipated that by stating that DSK is a
resident if NY. 
  The Constitution states "Suits between citizens of different states may be heard in the U.S. Courts only if the amount in controversy exceeds a certain amount" The original documents state $20!
   There can be no change of venue for any reason. There is plenty of "diversity" in the Bronx. 
  They may try, but doubtful they will succeed. 

 The specific kinds of Civil cases which can be tried in Federal Court are set forth in Article III of the U.S. Constitution and in federal statutes. These are, first of all, controversies to which the United States is a party, and controversies between two or more States. The federal court also decides cases involving constitutional rights, laws enacted by Congress, treaties, and laws relating to navigable waters.