DSK Means No PBRD

As a criminal defense attorney, it is rare for me to take the time to publicly praise any Prosecuting Authority. This week’s decision by the New York County (Manhattan) D.A.’s Office to dismiss all charges, post-indictment, against Dominique Strauss-Kahn ("DSK"), the former head of the IMF, In re: the People of the State of New York against Dominique Strauss-Kahn, No. 2011NYO35773 provides one such instance. I have no reservations in saying that District Attorney Cyrus Vance Jr., and the DSK prosecutions team’s decision to dismiss the indictments against Mr. Strauss-Kahn alleging rape is not only praiseworthy, but proper. This is because in addition to protecting the public, prosecuting authorities also have a duty to protect the integrity of the criminal justice system and ensure that true justice is done in any case they handle. What this means is if and when a prosecutor has a reasonable doubt about the evidence in his or her own case (including doubts about the complaining witness’ credibility) and questions his or her own ability to be able to prove the defendant’s guilt beyond a reasonable doubt, he or she is duty-bound to dismiss the pending charges, regardless of a case’s posture. This same duty was instilled in me as a young prosecutor in the same office (Manhattan—where Cy Vance Jr. was once a colleague) which not only recognized, but acted upon, its ethical obligations to dismiss the DSK case in response to what has been described as significant credibility issues with the complaining witness. Would that all prosecutors today acted with the same level of professional responsibility. However, it is a sad reality in my line of business that most do not, especially here in Massachusetts, where more often than not, charging decisions appear dictated by such extraneous factors as special interest groups; political grandstanding; concerns about re-election (i.e. incumbency protection) and a seeming single-mindedness that sometimes borders on zealotry. As a criminal defense attorney who specializes in, among other categories of cases, defending sex crime accusations, I have been both shocked and chagrined by the shift in prosecutorial decision-making from assuring that justice be done to backing the "victim" at all costs. The number of non-corroborated, he-said/she-said cases, where substantial evidentiary defects such as inconsistent statements, motives to lie, obvious bias and/or conflicting witness testimony that are still indicted, especially in domestic violence and sexual assault cases, continues to amaze me. Perhaps this is the necessary by-product of the paradigm shift from a time a generation or so ago when there was the perception that the accused were "too coddled" to a time (now) where victim’s rights appear paramount to those of the accused. (Clearly,"a bridge too far!") Maybe it’s the unfortunate by-product of prosecutorial sub-specialization where D.A.’s Offices are now broken down into special units such as those dedicated to child sexual assault prosecutions, domestic violence, elder abuse, and/or special victims where the mandate is clear and statistics do matter. Maybe it’s the by-product of the increased role of victim witness advocates and victim specialists who try to keep prosecutions on track and, as recognized stakeholders, often try to convince line assistants who may be wavering to keep moving forward. Or maybe it’s simply that "tough on crime" sells in election cycles, while dismissing charges late in the game appears to be anything but. Whatever the reason, it’s my experience that prosecutors more and more are bringing, indeed, indicting cases that not only should not be prosecuted, but that would never have been prosecuted years ago when I was a drug/homicide/sex crimes prosecutor. See State of North Carolina vs. David Evans, Collin Finnerty, and Reade Seligmann, i.e., the "Duke Lacrosse Case". Rather than making hard, or ethical choices, about whether or not continued prosecution is (or ever was) viable, prosecutors now tend towards the political expedient of "letting the jury decide." So, whether it be lack of proof against Ben Roethlisberger in State of Georgia v. Ben Roethlisberger, or issues involving the complainant’s credibility in the case of DSK, here’s to those prosecutors still willing to make the hard, but correct and ethical choices, to dismiss an indictment, or decline to prosecute, because they understand as the late Honorable Paul Liacos once observed that, "Prosecutors have an ethical duty to request the dismissal of an indictment if they become aware, even after the fact, that false testimony was used to obtain it."