Dominique Strauss-Kahn's Reversals of Fortune

Reversal of Fortune was title of a book and movie about a trial for attempted murder that yielded a surprising outcome. Claus von Bulow, an Austrian aristocrat-turned socialite husband, was eventually acquitted of charges that he tried to kill his wife Sunny by injecting her with an overdose of insulin. High-profile Harvard Law professor Alan Dershowitz defended van Bulow and wrote a book about it.

A film version appeared a few years later. Jeremy Irons played Claus van Bulow and Glenn Close was cast as Sunny. Ron Silver was in the role of Dershowitz. I saw the film at the Parkway Theater in Minneapolis on a very cold December night in 1990.

It is unclear whether there will be a film version of the Dominque Strauss-Kahn story. But the events that have unfolded since May of this year contain multiple reversals of fortune.

In May, New York police arrested Strauss-Kahn, the powerful chairman of the International Monetary and likely French presidential candidate, on charges that he sexually assaulted a hotel chambermaid. After being pulled off of an Air France jet and jailed, Strauss-Kahn was paraded past the press — as any other defendant in America could be.

Many French people reacted with anti-American suspicion and considerable disgust at this treatment. After all, Mr. Strauss-Kahn may have been accused of rape, but he had not yet been proven guilty.

Within a little over three months, prosecutors in New York had dropped the charges entirely. They had completely lost confidence in the truthfulness of the testimony of the maid who leveled the charges against Strauss-Kahn. This was certainly a reversal of fortune for the prosecutors, who were left with the proverbial egg on their faces.

Mr. Strauss-Kahn returned to France, but did not step right back into his former, power-broker life. For one thing, he still faces a civil suit brought by the maid, Nafissatou Diallo, who has made her name public.

Diallo's civil case is scarcely Mr. Strauss-Kahn’s only concern. There is also, well, the state of his soul. Could this have been on Strauss-Kahn’s mind when confessed in a television interview to “moral failing” in his hotel room encounter with Ms. Diallo?

Yet even as Strauss-Kahn seeks to reassert his moral self, the swirl of moral degradation increasingly seems to surround him. Various press reports have tried to link him to the operation of an alleged prostitution ring in the city of Lille. This alone may be lurid enough to attract movie interests, and indeed the Internet contains unbounded speculation about a possible porn film based upon these events.

For Dominque Strauss-Kahn, then, there have been numerous reversals of fortune in the last six months. And there are probably many more to come.

Dragon Tatoo, Dangerous Society

Stieg Larsson's The Girl With the Dragon Tatoo is - as Michael Palin used to say - a "ripping good yarn." The international publishing sensation it's become is evidence enough of that.

Yet it's also a clear critique, written by a man, of a pervasive culture of violence against women permeating Swedish society. Larsson appends short, devastating statements of fact to introduce sections of the book.

Before Part I, for example, is this statement: "Eighteen percent of the women in Sweden have at one time been threatened by a man."

The statement before Part II moves from threat to action: "Forty-six percent of the women in Sweden have been subjected to violence by a man."



Despite these warnings in the section epigraphs, I was shocked when, 200 pages into the book, Lisbeth Salander, the title character, was brutally and mercilessly raped by a man who was supposed to be her guardian.

Outweighing her by over 100 pounds, this man, Advokat Bjurman, forces Salander to suck his cock. And thinking himself insulated from consequences by his social power over her, he doesn't expect her to report it.

The story is set in Sweden in 2002 - a society surely among the most egalitarian in world history. A country with paid family leave for men, many of whom have embraced the role of caregiver.

Yet The Girl With the Dragon Tatoo suggests that there is a spectre haunting this society - the spectre of male violence.

Roethlisberger and Prosecutorial Discretion

Barhopping with friends in Milledgeville, Ga, to celebrate his 28th birthday, Pittsburgh Steelers' quarterback Ben Roethlisberger apparently picked up a 20-year-old woman and may or may not have sexually assaulted her in a bathroom.

On April 12, about five weeks after the March 5 incident, Ocmulgee Circuit District Attorney Fred Bright announced he would not bring rape charges against Rothlisberger. The young woman told police she had been sexually assaulted, and a medical examination showed evidence of vaginal bleeding, as well as a cut and bruises. There was insufficient DNA to make testing viable, however, and Bright was concerned about the challenges of proving guilt beyond a reasonable doubt.

"We do not prosecute morals. We prosecute crimes," the prosecutor plausibly told the press. In some ways, that is a valid distinction. It's very difficult to convict a star athlete, past or present, in this type of case. The Kobe Bryant case in Colorado in 2004, which turned on whether the sex was consensual, was ultimately dismissed by the judge amid concerns about revictimizing the alleged victim. A year earlier, former Minnesota Twins star Kirby Puckett was acquitted of groping a woman in the bathroom of a restaurant in Eden Prairie, Minn.

Unlike those two incidents, however, the Roethlisberger case could conceivably be distinguished because the woman involved may not even have been of legal drinking age. According to the facts made public, Roethlisberger paid for shots of alcohol for the young woman and her sorority sisters. And that alcohol could in turn have undermined her ability to give full consent to whatever acts occurred in the bathroom with Roethlisberger.

Though the DA chose not to bring charges, Roethlisberger has not escaped consequences entirely. NFL Commissioner Roger Goodell, ever vigilant in protecting the league's image, quickly met wtih Roethlisberger and is considering a possible suspension or mandated counseling. Goodell takes his disciplinary role seriously, as he showed last season in insisting on a proper show of remorse from Michael Vick before reinstating him after Vick served a federal prison term for involvement in an egregious dog-fighting operation.

And then there's the court of public opinion. Roethlisberger may not be in for a public shaming by the Steelers' owners, as Tiger Woods was at the hands of Augusta National Chairman Billy Burke. But he would do well to consider the message his alcohol-fueled actions are sending to the thousands of boys who follow football so faithfully.

Precious

Imagine growing up in a living hell of abuse and victimization. Raped repeatedly by your father, resulting in two incestuous children. Verbally abused and physically assaulted by your mother, practically 24/7.

You live in poverty, an African American on welfare in Harlem in the 1980s. Because of the violence and neglect in your home, you are practically illiterate, and are also morbidly obese. When you find out you’re pregnant for a second time by your father, there are times you wish you were dead.

But somehow, deep within you, there is a deep capacity for survival and perseverance. You find a caring mentor, who helps you begin to build a new life, beyond abuse and degradation.

This is the story told in “Precious,” a film based on the novel “Push.”



I saw the film yesterday and was very much moved.

DNA and Eyewitness Evidence

Synchronicity is a fancy Jungian term for meaningful coincidence. Tens of thousands of us were introduced to it a quarter century ago by the rock musician Sting and his band, The Police.

I’m no Sting, but in the last two days, with Father’s Day weekend approaching, I’ve had occasion to follow some of the latest legal developments involving DNA evidence. Of course, the end of the Supreme Court term typically falls around Father’s Day, so a major ruling coming down this time of year is hardly a surprise. But Jungian concepts are flexible, and the Court's ruling is indeed meaningful — especially if you’re a criminal defendant in Alaska, Oklahoma or Massachusetts, the three states lacking laws providing access to post-conviction DNA testing.

In the Osborne case, the Supreme Court ruled that Alaska authorities did not violate the constitutional rights of a man convicted of rape when they refused to allow him to test the DNA evidence that might have overturned his conviction. The Innocence Project has used this type of evidence to successfully reverse over 240 convictions around the country in recent years — a major shock to a justice system whose claims to legitimacy depend on its ability to punish the guilty and spare the innocent.

DNA testing technology has become more sophisticated since 1993, when the sexual assault that Alaska prosecutors charged Osborne with occurred. Though a preliminary test showed a match between Osborne's DNA and DNA taken from a condom that had belonged to the victim, it was an imprecise test and approximately 15-16 percent of African-American men would also have been a match. When the case came to trial, Osborne’s attorney chose not to seek an independent, more precise test. The defense attorney feared (or at least claimed) that it might provide stronger evidence of Osborne’s guilt.

That strategy didn’t work. And yesterday, by a 5-4 vote, the Supreme Court said that William Osborne has no constitutional right to have DNA testing done after his conviction.

Attorney General Holder responded to the Court’s decision quickly. He pointed out that the Obama administration supports defendants’ access to DNA evidence “in a range of circumstances" and that federal law has guaranteed access to it in federal cases since 2004. As Peter Neufeld of the Innocence Project noted, however, the decision will severely impact people in the three states that do not have laws allowing defendants to obtain DNA testing.

Today, a day after the Supreme Court’s DNA ruling, I attended a CLE on eyewitness identification. The presenter, Jeanne Schleh, a former assistant county attorney in Ramsey County, Minn., noted in one of her first Powerpoint slides that virtually all of the DNA exonerations of wrongfully convicted defendants were in cases with faulty eyewitness evidence.

Issues involving eyewitness evidence have been on my professional radar since I was a third year law student. In 1986, I edited a lead article for the Valparaiso University Law Review entitled “Trial by Jury: Reflections on Witness Credibility, Expert Testimony and Recantation,” by Elaine D. Ingullli.

Ms. Ingulli began the article by examining a case in Cook County, Illinois in which a man named Gary Dotson sought a new trial after the alleged witness recanted, saying she had perjured herself at trial. Ingulli rightly raised broad issues about the justice system's (arguably excessive) dependence on the evaluation of live witness testimony by juries to get at the truth.

When cases like Gary Dotson's occur today, DNA tests can play a key role. But even today, eyewitness evidence remains fundamental to the work of law enforcement agencies. Testing has become easier, but the United States is not one big DNA lab, and gathering evidence from human witnesses is still a basic building block of police work.

The CLE I attended outlined how Ramsey County (MN) has changed its identification procedures. The presenter began by showing this video, produced by Gary Wells, a psychology professor, to illustrate how tricky it can be trying to make a positive ID based on a fleeting view of someone for perhaps only a matter of seconds.

The “60 Minutes” program on the CBS television network also explored the accuracy of visual memory recently, focusing on a rape case in North Carolina in which a black man was wrongfully imprisoned for eleven years before a white woman’s accusations were disproved by DNA evidence.

Following a national trend, Ramsey County has moved away from traditional “lineups,” which typically required enlisting jail inmates and maybe a few stray volunteers. Instead, best practices are now to use “blind” (and possibly computer-based) photo displays where the administrator doesn’t even know who the suspect is.

“If we share this nightmare, we can dream,” sang Sting in “Synchronicity I.” Being imprisoned when DNA evidence might exonerate you would be a nightmare. The dream remains, however, of a criminal justice system adaptable enough to include state-of-the art science when that is in the interest of justice.