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A Smorgasbord of Lies


Kent has noted an article discussing possible defenses for the illustrious Dominique Strauss-Kahn, the jet-setting Frenchman who for the moment heads the IMF, and who has been accused by New York authorities of attempting to rape a maid in his $3000 a night suite at a posh hotel. 

Although I have been a lawyer for more than 30 years, I admit I'm slow to catch on.  Not once does the article suggest that DSK just tell the truth; indeed, the word "truth" is completely absent.  What gets discussed is what might sell, and how it might be made to sell.  Whether the possible stories coincide with the reality of what happened appears to provoke zero interest either in the authors or anyone they interviewed.

The typical defense line, on those rare occasions when asked about this devil-may-care attiitude toward the truth, is to talk about something else:  It's the government's burden; the state has all the resources; the Framers were more concerned with the abuse potentially bred by state power than with private misbehavior, no matter how serious.

And all that is true.  But, as this case is in the process of teaching us, it's also cynical, dispiriting, an indulgence for dishonesty, and an invitation to injustice.   Is this the best we can do?

Let's look at how the case has been unfolding.  The first suggestion for a defense was alibi.  DSK's lawyers told the press they were putting together a minute-by-minute reconstruction of their client's whereabouts at the critical times.  This would show that DSK could not have been attempting to rape the maid  --  indeed that he could not have been in the room  --  at the time the maid claimed.

That lasted about a day.  I haven't seen it since.

Then there was the suggestion that the encounter was a, quote, "honey trap."  This is mostly, it seems, a sort of conspiracy theory spun by parts of the French press.  The idea was that unnamed, sinister forces were out to ensnare DSK, who had been a leading candidate for President of France in next year's elections. 

Now I don't know exactly what a "honey trap" is, and those spinning this theory tiptoe around getting too explicit, but it reminds me of that old defense favorite, the "perjury trap."  A "perjury trap" consists of the defendant's lying, generally to exculpate himself, when asked discomfiting questions.  The underlying idea is that the authorities are setting up an ambush by asking such questions.  The notion that the defendant could foil the "perjury trap" by  --  ready for this?  --  telling the truth, or just invoking his right to say nothing, never seems to hove into view.

Not that it makes a lot of difference.  For DSK, the "honey trap" seems to have followed the alibi quickly out the door.

So we're getting back to the more conventional sort of defense, namely, that, if there were sex at all, it was consensual.  The maid says otherwise, according to her lawyer, but it's mostly a he-says-she-says sort of thing.  Thus, as the article notes (emphasis added), "Any evidence that the woman...has a history of lying...would be fair game, and experts said his defense team will examine her background closely."

You don't have to be a genius to do the translation:  Our millionaire defendant is going to spend a boatload to dig up as much dirt as possible on the insolent hotel maid.  Whether and to what extent the dirt has any truth to it is not the point.  Intimidation is the point. 

And then there's the she's-doing-it-for-money theory.  Under this account, the maid is accusing DSK in order to extract a fat civil setllement.  Such a thing is, of course, at least theoretically possible.  Similar episodes have happened before, and venality is not unknown in human life.  The one thing absent from this theory, however, is even a ghost of case-specific evidence to support it.  Still, to be fair, the story is far from over.

Lastly for the moment is the theory that DSK is a man of modesty and restraint  --  not the sort who would have an eye out for a female half his age.  Given DSK's reputation built up over the last few decades, however, I doubt we'll be hearing a lot about that one.

It's obviously too early to know how this is going to turn out.  But my intuition is that the defense will become what modern defenses have so often become:  Turn the defendant into a victim.  Yes, DKS will spend plenty to dig up what he can on the maid (I would be astounded if that is not going on as I'm typing).  But he'll spend at least as much on psychiatrists as plushly padded as his hotel room, psychiatrists who'll discover that he was "suffering" from a previously undiagnosed "syndrome."  This "syndrome," combined with the "stress" of having to deal with the fragile world economy, DKS's "depression" over _____ (fill in anything you like), and a freak moment's "lapse in judgment" are to blame. 

They're to blame, I tell you!  Arrogance, bullying and a gargantuan sense of entitlement had zip to do with it.

Not for nothing did I title this entry, "A Smorgasbord of Lies."  When our citizens read about legal experts blandly suggesting this yarn or that one to help the defendant beat the rap  --  without a smidgen of regard for, or even a passing reference to, what the truth is  --  what, exactly, do we expect them to make of us?




I am a former prosecutor and current defense attorney.

I agree with you partially on this issue. I think, however, your real problem may be with the media on the first issue of just sort of throwing out random scenarios rather than trying to figure out what actually happened. God forbid anyone in the media investigate anything - that would cost money.

I find, however, you blanket disdain for defense psychiatric experts akin to the blanket disdain that many in the defense community have for all police (i.e. they are all liars and crooks). I just don't think it is true for the majority of either community.

But let's be honest. The truth for most defense clients is not good. That's why so many cases end in plea bargain. I will say, in my experience as a prosecutor and defense attorney, I've found the police, witnesses (both State and defense) and even Defendants who can own up to the truth end up doing the best, whether that's winning a case or owning up to a crime, accepting punishment and getting on with life. My advice to folks testifying is always the same "Answer the questions. Don't guess. Tell the truth" I've found it works.

(I currently and regularly defend sexual assault cases. I have been a prosecutor. I have been a police officer.)
1. Every defense counsel has an ethical duty to investigate.
2. Read Melinkoff's "Conscience of a Lawyer."
3. I agree with Robert. It is common for the defense to be the butt of disdain of prosecutors (and sometimes judges). Gosh, they represent the accused, they must be lying, sleazy, etc. It is convenient and self-satisfying to blanket accuse the defense.

--- Originally this was a much longer comment, I took out paragraphs 4-7, and redacted some of the remaining paragraphs. ---

8. Finally, remember the Duke Univ. lacrosse team case in North Carolina. Was that slimy defense lawyers at work? The National Science Foundations report on police forensic labs - slimy defense lawyers at work? Prosecutors who can't spell B-R-A-D-Y - slimy defense lawyers at work? As Robert alludes in his penultimate paragraph, these are the blanket questions defense counsel ask.

9. No finally, you do raise legitimate questions about the profession of law and lawyering. I consider myself and most of my colleagues (prosecution and defense) hard working, honest, ethical people. Normally I tell myself and younger counsel (I've been at this 32 years) to let it go, let it go over your head, focus on the case and the mission, don't be distracted by prosecutors (some who snipe and goad deliberately). I think the issues in your rant have always been there. They should not be public. I agree some of the stuff we read and hear demeans the profession as much as the individual concerned. It's perfectly proper to moot a case, its facts, issues, and strategy, just do it in private. But the internet and media sound-bite-hunting makes it more apparent, and in some ways does contribute. Sad.

I will have more to say in response to your note, but for now, let me just repeat what I said a bit more than three weeks ago:

"The legal profession views it as an obligation and an honor to defend unpopular people and causes. That is why, despite my decided misgivings about standard criminal defense tactics (such as huckstering for fake mental conditions), I do not view criminal defense per se as a bad thing. I did some of it as a Stanford Law student, and, as I have said here previously, it is sometimes essential in order for the rule of law to prevail.

"In the Duke lacrosse rape hoax, for example, it was only the courage of criminal defense lawyers that stood between a corrupt, race-baiting prosecutor and three falsely accused students. In a Duke community awash in Political Correctness, it took guts for defense counsel to step forward in behalf of 'privileged white jocks.'"

A few points for your consideration.

1. Media laziness is indeed a problem, as you suggest. But it's exactly that laziness that leads me to point the finger primarily at the defense lawyers they interviewed. All these made-up stories were fed to the press by the defense bar.

2. I am indeed skeptical of defense psychiatric experts. Psychiatry might not be voodoo exactly, but it is so subjective and so difficult to measure by any principle of verifiability that it lends itself to mumbo-jumbo. This is palmed off to the jury as "expertise." Plus I am not buying the syndrome-of-the-month, which seems to be merely a way to try to bamboozle laymen by using newly-minted and fancy-sounding terminology that's really just guesswork impersonating science.

3. You say, "The truth for most defense clients is not good." This is a key insight, as it explains the central conundrum of defense work.

Since the truth is not good, the object perforce is to hide or muddy it. But hiding or muddying requires an approach that is at best slick and at worst flat-out dishonest. What kind of a way is that to make a living? And more importantly, what kind of justice are we trying to achieve if the lawyers at one table are sworn to get to the truth, and the lawyers at the other are sworn -- the truth not being good for the client -- to dodge it?

4. No one could argue with your advice to, "Answer the questions. Don't guess. Tell the truth." I just wish more people followed it.

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