THE MEDIA FRENZY arising from the arrest of international French public figure and politician Dominique Strauss Kahn on May 14, 2011 quickly goaded the public into believing that Kahn was as guilty as the clamoring newsmen charged.
All media portrayed the director of the International Monetary Fund as a psychopathic stalker of women and the aggressor in a sexual assault upon a hotel maid while staying at the Sofitel Hotel in New York.
However, from the outset I posted a comment on May 20, 2011 that Kahn had defenses available, despite the media and prosecution's leaked death knell portrayal of the case.
My comments were posted on an ABC news correspondent's facebook page, in response to a courtroom drawing that the correspondent had posted.
Although the ABC newsman posted the courtroom drawing asking his fb friends to "find him in the drawing," it was obviously more important to study the drawing for the positions and mannerisms of the key players present in the courtroom- Kahn, defense attorneys Brafman & Taylor, the prosecutor and the judge.
Here is what I posted on May 20th, when Kahn was arraigned six days after his arrest.
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Ray Oliver
Interesting that defense counsel Taylor has his hands in his pockets. Strauss-Kahn is not without a defense, as the prosecution's leaks and media are portraying. Investigators have said that the room door was left open by the employee, proving that she entered to work and not for sex. BUT an open room door easily allows a purported victim to scream and / or escape from the room. Also, the location of the alleged crime is not one that allows escape from detection. How likely is it that someone would commit a sexual assault, when the victim can simply walk through an "open door" back to work and back to supervisors. How likely, where a perpetrator has a high profile and detailed hotel record for identification? Also, a hotel patron in an expensive suite at $2000.00 per night makes an easy target for entrapment/extortion through fabricated complaints after a consensual encounter. Lastly, prior bad acts as an exception to the hearsay rule which excludes evidence, is admissible under limited circumstances. S-K's alleged prior bad acts will not be easily admissible with Taylor - Brafman opposition. Brafman and Ivan Fisher were co-counsel with me in the US' largest drug trafficking trial in history, in the 80's. S-K is in good hands.
May 20 at 4:10pm ·
........................The defense attorneys' release for publication, a letter which they received from NY District Attorney Cyrus Vance, (copy below) now has the news groups clamoring like Keystone Kops in a different direction. Reporters are now "hot on the trail" of the alleged victim claiming that DSK will be exonerated from the charges before trial, because the assaulted maid is a proven liar.
So, job well done defense lawyers?
Not so fast.
The chorus of criticism portraying Cy Vance as incompetent and a repeated loser of high profile cases, is resounding throughout the greater New York metropolitan area.
Is Cy Vance incompetent, because of the revelations that the maid is an historical liar?
Is Cy Vance responsible for the release of DSK on his own recognizance, because of the woman's prior fabrications which she made to other governmental agencies?
Hardly.
To be knowledgeable on this topic of a prosecutor's duty is to know that the shining star in this parade of limitless news reporter confusion is NY District Attorney Cy Vance, Jr.
Simply, some paralegal in the criminal defense attorneys' office sent out their standard discovery request form, which requested that the prosecutor disclose all evidence which the state intends to use in prosecuting the defendant.
No big deal. A standard printed form which is captioned " Discovery Demand for Production of Tangible Items" under the criminal rules of procedure.
Most prosecutors give little importance to the defense's demand for production. Prosecutors routinely send out the complaint, police and detective reports and other documents which are found in the "official" police department file.
Prosecutors do not spend time searching out for evidence beyond the "official" police file in the case.
Prosecutorial ineptitude rests with the prosecutor who fails to locate items which are relevant to the case and which are under control of other agencies and parties.
And this is where Cy Vance, Jr. shines as an exemplary prosecutor.
In the United States Supreme Court case of Brady v. Maryland, our Su-preme court held that the state in a criminal action is obligated by law to provide all materials that are relevant to the defense, including ALL materials which may exculpate the defendant from the charges against him.
These "Brady materials" are evidence which may tend to prove a defendant's innocence from the charges.
Cy Vance followed the spirit and letter of the Brady holding by giving the defendant's attorneys information about the victim's statements made to Immigration officials which tended to help the defendant, because the prior statements of the victim were apparent lies.
The woman who has claimed sexual assault had previously lied to government officials.
This is the Brady material that the US Supreme court held must be supplied to defendants' attorneys in criminal cases.
So Cy Vance went beyond the routine ineptitude of prosecutors around the country and supplied the defendant's attorneys with Brady materials which help the defense's case.
Cy Vance gave the defendant's attorneys evidence of prior lies and bad acts of the complaining victim. This was evidence obtained from INS and other governmental agencies. DA Vance did not limit his search for Brady materials and relevant evidence to one police department's file.
The change in the tone and temperament of the case from being damaging to Kahn to a case damaging to the DA's office was the result of DA Vance's diligence in protecting the rights of the defendant, pursuant to the US Supreme Court's holding in Brady v. Maryland.
Furthermore, the roles of the prosecutor and defense counsel are entirely different. A prosecutor's duty is at odds with a lawyer's responsibility to clients.
For a defense attorney, the Rules of Professional Conduct require that the attorney act "zealously" on behalf of his client.
In contrast, the prosecutor's duty is not for him to seek convictions, as most journalists believe when misinforming the public. Rather, the prosecutor's duty by law is to "seek justice."
The commendable duty to seek justice means that a prosecutor must make decisions based on fairness to the defendants.
"Seeking justice" for a prosecutor means that, like Cy Vance, they must exercise due diligence in locating all relevant evidence in a case, including all Brady materials which can lead to charges being dismissed against a person like DSK.
And the release of Brady materials is done "in the interest of justice."
That is exactly what District Attorney Cyrus Vance, Jr. did. He did it for DSK. He did it in the interest of justice.
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Note: Ray Oliver served as defense co counsel in the largest drug trafficking trial in US history at the time. He also served as co counsel in the Lot Air disaster case and has represented high profile public officials in criminal investigations and trials. He served as Chair of the International Litigation Cmmtt, New Jersey State Bar Association & Chair of the Administrative Law Section, NJSBA. He began his career prosecuting cases for the Illinois Attorney General, General Law Section-Chicago. Oliver also represented parties in criminal cases through a major record label company. He is a past elected Governor of the NY tv academy Emmy awards, Board of Governors and is a past Chair of the Membership committee of the NY tv academy Emmy awards.
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Wonderful article RO...you make very important points here...and I agreed with you on a certain Newsguy's wall.
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