Dominique Strauss-Kahn VS. Nafissatou Diallo: A case of Comparative Law
A media event on the threshold of the American Criminal Procedure
Reality is a hard nut to crack.
Dominique Strauss-Kahn is a major figure who has friends who may be sincere in their affection, no matter how often crossbred with ulterior political motives. Whenever a person is accused of something incredibly serious, his relatives have the natural reflex to refuse to believe that it is just possible.
The first instinct is to protect, to rush to help, sometimes awkwardly, like that wife who thought helping her husband accused of robbery and who found nothing better to say at the bar of the criminal court: « Murderer maybe, but a thief, surely not! »
Clumsy reactions, not to say completely ill-advised have been held. Most of those who did so have retracted or expressed their regrets by realizing the nonsense of their arguments.
It is not herein about demonstrating the guilt or innocence of the IMF’s managing director. No more than trying to prove a hypothetical plot, in one way or another, but to describe and explain the criminal proceedings which he is subject to understand what is happening and what will happen. Note that I do not pretend to be a lawyer practicing in New York and I beg more eminent experts than me to forgive my probable errors and approximations, and I will correct the post if required.
The U.S. procedure, a much more balanced system than the French feedback might suggest.
Let us briefly recall the facts: DSK is charged of having appeared suddenly naked, facing a maid who had entered the room thinking it was cleared out, to put it back in order. After closing and locking the door, DSK would have intended to force her for oral sex, he would have tried to take off her clothes in order to go further, but she managed to escape. The police arrived, reportedly found that he had left the scene, forgetting one of his (seven) mobile phones, and tracked him down in the list of passengers on an Air France flight to Paris.
He was arrested onboard by the Port Authority of New York and New Jersey – the local Border Police – and delivered to the NYPD, the Special Victims Unit to be precise.
In the United States like in England, police have broad powers of inquiry and initiative in investigations. Unlike France, where the prosecutor leads the investigation and gives instructions to the police – which are in fact orders –, the district attorney discovers the records when the police bring them together with the suspect. For some serious cases, police officers may have an advisory role, stating the evidence that the DA needs to go further on prosecution. Both authorities are more separated in the U.S. than in France.
The arrest may take place without an arrest warrant in two cases: the crime takes place in the presence of the police officer or if the officer has sufficient evidence to arrest the person (sufficient grounds). In general, a home arrest requires a judge to issue an arrest warrant.
The first stage is booking and it is held at the police station. Fingerprinting, photo identification, judicial collect of criminal record (in New York it is called NYSID report or rap sheet. The person under suspicion may be questioned but he has the right to remain silent (which will never be retained for the prosecution against him unlike in French law). He may be assisted by a lawyer who has the right to intervene during interrogations (the Paris prosecutor shivers in terror at this perspective). The police officer in charge of the case (usually the first on scene) prepares a report – the criminal complaint— which is the basis for prosecution.
Less serious facts give rise quickly to release from custody with straight summons by the judge (Desk Appearance Ticket, DAT). Here we are facing a felony – on top of the scale of gravity, not DAT, but submission to a judge. This arrest should be as brief as possible. The law provides for a period of 48 hours in case of arrest a weekend away, but this rule does not apply in NYC, where hearings are held 365 days a year (from 9:00 a.m. to 1:00 a.m.). In this matter, DSK agreed that such hearing which could take place on Sunday – as ‘New York city’s justice doesn’t sleep’— might be postponed to allow achieving DNA testing.
Once the booking is completed, the suspect is escorted to the Court Building, the competent court (here, in the case of felonies, the New York City Criminal Court, but only for the preliminary phase). It was there that DSK was featured on May 16: his memorable walking out under the flashes, that most French journalists published by asking if they could do it, and his transfer from police station to Criminal Court.
There, the police officer handling the case – and/or the complainant – is received by a substitute (Deputy District Attorney, DDA) who decides whether to prosecute or not. The DDA does NOT speak to the suspect, since in the United States, they have realized quite a long time ago that he is the opposing party (in France, there is hope it finally occurs all along the XXII century). If DDA considers the record substantial, he should formalize a ‘written complaint’, i.e. the official complaint of public prosecution.
The suspect is then brought before a judge for a hearing called the arraignment. The judge notifies the suspect of charges against him (a copy is delivered to him), of his right to counsel (he must be assisted, if necessary by a court-appointed lawyer at the arraignment), he is entitled to a preliminary hearing (in the case of a felony as it happens to DSK). He will not be asked at this stage whether he pleads guilty or not guilty, only in cases of misdemeanors and minor offenses, the equivalent in France of ‘délit’ and ‘contravention’ (but the suspect is entitled to give it up and, if need be, to plead guilty before the Criminal Court, this option is already ruled out by DSK’s lawyers).
The judge may decide to immediately stop the proceedings if he believes that the offense is not clearly established (case dismissed, French’s ‘affaire classée’)). With regard to alleged felonies against DSK, the indictment is incumbent on the Grand Jury.
The judge will then decide what happens to DSK until the Grand Jury decides. He can be released on his promise of appear spontaneously (Released on his Own Recognizance, ROR), released on bail or exceptionally remanded –i.e. arrested up to 120 hours until the Grand Jury has ruled or a Preliminary Hearing is held if the suspect, who is now the defendant, asks for it; but the prosecution does not bet on it usually).
The essential difference between Preliminary Hearing and Grand Jury is that the former is public and is held in the presence of the defendant while the Grand Jury meets closed-doors in the presence of the sole District Attorney and witnesses brought to testify.
The Grand Jury is composed of 23 people (a quorum of 16 people is required for it to decide). It outlines the evidences gathered and deliberates and it either votes a true bill – 12 jurors at least consider that there is prima facie, and then the case goes to trial (indictment) – or a no bill – i.e. no trial, then the case is dismissed.
In case of indictment by the Grand Jury, a new arraignment hearing is held before the Superior Court competent to try crimes (felonies), here the New York Supreme Court. Thus began the preparatory stage: the parties may negotiate a plea bargaining, ie, a guilty plea, where they have 45 days to submit petitions (motions) to be settled before the trial, eg to exclude illegally obtained evidence, or direct certain actions. Once these motions considered, a trial date is set. The trial shall be public, and judged by a jury who votes only over the conviction. The penalty, under the sole judge’s domain, is ruled at a subsequent hearing.
Finally there are 3 qualifications retained at this point: criminal sexual act, attempted rape, unlawful imprisonment. The penalty system is somewhat complex. Crimes are divided into categories AI, A-II. B. C, D and E. DSK appears to fall into the category B, so a maximum of 25 years imprisonment and a minimum of 1 to 8 years (Criminal Code of New York State. art. 70).