Prosecutors -- whether federal or state -- operate under strict rules of disclosure about what they ethically are permitted to discuss publicly about a pending case. And all lawyers, including those in private practice, are bound to constraints in what they can discuss about a case. The American Bar Association's Rule 3.6, for example, admonishes lawyers against making "an extrajudicial statement that the lawyer knows or reasonably should know" will prejudice a legal proceeding. Such rules help to bring an always-needed degree of credibility to the system. Until now.
Enter the world of Ms. Nafissatou Diallo -- until this week the semi-anonymous Sofitel Hotel maid whose allegations that former IMF General Manager Dominique Strauss-Kahn ("DSK") forced her to commit sexual acts against her will on May 14th, led to his arrest. Diallo and her lead lawyer, Kenneth Thompson, have thrown all normal rules of professional conduct to the wind and decided instead to conduct their case in the manner of the famous showman, P.T. Barnum.
When it became obvious several weeks ago that his client had major credibility issues, Thompson decided to play the hottest card of all -- the race card. For this, he enlisted the support of New York City politicians, including State Sen. Bill Perkins and Bronx Assemblyman Eric Stevenson. They appeared with Thompson and other assorted supporters of Diallo at a news conference, to declare loudly for the assembled media, that racism was behind efforts to get Manhattan D.A. Cyrus Vance to drop the charges against DSK.
However, this craven attempt to pressure Vance to continue the case against DSK no matter the state of the evidence or the problematic background of the alleged victim, did not bring the immediate desired result -- a public promise to prosecute by the D.A. So Thompson decided to kick it up a notch. He and his client now have taken the case to the media with a determination that would make publicity hound Kim Kardashian green with envy.
The most intriguing aspect of this is not that Thompson would force his case onto the media stage rather than handle it professionally in the legal arena. What is truly depressing is that a once-respected news magazine, Newsweek, would demean itself so totally and fawn over Diallo's story and persona.
The magazine's current cover story -- with a black and white profile of an unshaven, stern-looking and tie-less DSK, facing a profile of Diallo in soft color -- reads largely like a puff piece by the magazine's fashion editors. The article recounts in detail the maid's selfless journey from Africa to the Sofitel Hotel in New York City; and the many times she claims to have been victimized previously. The reader learns how she sacrifices for everyone but herself because, after all, she never "think[s] about money" (though she does pull down more than $52,000 a year cleaning hotel rooms). The reader can almost see the halo appear over Diallo's head as she claims piously, "we are poor, but we are good."
The other players in this drama -- DA Vance and DSK's lawyers Benjamin Brafman and William Taylor -- have adhered to the normal rules of restraint associated with a case like this. A statement released Sunday by the defense team accurately described Thompson's antics as nothing more than a ploy to make money later in a civil suit.
Unfortunately, as Shakespeare's Hamlet noted four centuries ago, there can be method in madness. Here, the goal of this madness is to pressure an elected district attorney to substitute public sympathy and racial fear for sound judgment and ethics.
Let us hope neither Thompson nor his client succeeds in thus making a public mockery of our judicial system, despite their obvious best efforts to do so.
Bob Barr was a Member of the House of Representatives from Georgia from 1995 to 2003, and the United States Attorney in Atlanta from 1986 to 1990. He now practices law in Atlanta.
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