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Prosecutors could still pursue case against DSK

The rapidly dissolving case against former IMF chief Dominique Strauss-Kahn faces challenges fairly common in sexual assault prosecutions, namely a less-than-perfect accuser.
/ Source: Reuters

The rapidly dissolving case against former IMF chief Dominique Strauss-Kahn faces challenges fairly common in sexual assault prosecutions, namely a less-than-perfect accuser.

So while Manhattan prosecutors face a more difficult task now that the accuser has been found to have lied on several occasions including about what happened immediately after the purported attack, it is too soon to consider the case closed.

"This would not be the first case where an important prosecution witness turned out not to be the angel or pure victim that the prosecution initially thought. Nor would it be the first case a prosecution's office took a case to trial where a witness had real credibility issues," Columbia Law School Professor Daniel Richman said.

Manhattan District Attorney Cyrus Vance admitted a setback with revelations about the accuser's past.

"She's already lied under oath in this case. I can't imagine more of a home run for the defense," said Gerald Lefcourt, a well-known Manhattan defense attorney.

But tellingly, experts said, prosecutors did not dismiss the case, a strong indication prosecutors believe the hotel maid's story that Strauss-Kahn attacked her in a luxury suite. Had Vance given up hope, he likely would have folded the case immediately.

There's no doubt, however, that prosecutors face a much more difficult path to conviction because Strauss-Kahn's defense lawyers would seize upon the accuser's past misstatements and try to discredit her before any jury.

"It's theoretically possible that the case could survive because there's a long history of sex crimes being prosecuted by imperfect complaining witnesses," said Paul Callan, a former prosecutor now in private practice.

Crucial to the case would be to present corroborating evidence beyond forensics evidence gathered from the hotel suite and in medical examinations of the accused and accuser.

Defense lawyers could argue any sexual contact was consensual.

If there were witnesses in the hotel who heard the woman scream or testify that she looked distraught after the incident, prosecutors could use that to bolster their case in spite of inconsistencies in the woman's own story, said Bradley Simon, a defense attorney in Manhattan.


Prosecutors say the woman lied to immigration authorities while seeking U.S. asylum, claiming she had been gang-raped in her native Guinea. The story was fabricated, though the woman said she was raped on another occasion under different circumstances.

Lefcourt called that revelation "absolutely devastating" to the prosecution's case.

In addition, she changed her story about what happened immediately after the purported attack.

She testified under oath before the grand jury that she had cowered in the hallway outside his room until he left and she felt safe to seek help. Now she admits she cleaned another room and then returned to start cleaning Strauss-Kahn's suite before reporting the incident.

"Frequently, rape victims don't report the rape immediately because of shame, humiliation and embarrassment," Callan said.

Forensic evidence, such as blood in the hotel room, would also independently support the woman's allegations, Simon said.

"Their task is going to be much harder now. But it's not insurmountable," he said.

However, waiting to report the assault makes it appear as if she calculated the possible benefits of lying about a sexual attack before reporting the incident, Lefcourt said.

A defense attorney could also argue that the time she spent in the room after Strauss-Kahn left could have been used to doctor the scene of the alleged assault.

Even without a credible witness, prosecutors could offer a deal to Strauss-Kahn -- for instance, dropping the four more serious felony charges against him, which carry up to 25 years' imprisonment, in return for his pleading guilty to the three lesser misdemeanor charges, which carry at most one year of imprisonment.

But it is highly unlikely that Strauss-Kahn would accept such an offer, said defense attorney Michael Bachrach.

"The defense will probably feel emboldened now more than ever, that this is a case that should be tried and should be defended," Bachrach said.

Strauss-Kahn has vehemently denied the charges from the start.

"In the end, if the complainant (accuser) has no credibility for a felony, she will have no credibility for a misdemeanor either," Callan said,