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July 20, 2013

"A Perfect Prosecution: The People of the State of New York v. Dominique Strauss-Kahn"

The title of this post is the title of this interesting new article about a non-prosecution by JaneAnne Murray now available via SSRN.  Here is the abstract:

The presumption of innocence may be the foundational principle of the American criminal justice system, but the presumption of guilt is its operational force. The U.S. Supreme Court acknowledged this reality in two notable criminal law decisions in 2012, Lafler v. Cooper and Missouri v. Frye, when it described the criminal process as “a system of pleas, not a system of trials”.

People v. Strauss-Kahn is an ideal lens through which to examine this process. It is both an excellent example of a transparent and objective invocation of the criminal sanction, and a sharp counterpoint to the vast majority of cases where law enforcement conclusions are trusted and rarely second-guessed. Stage by stage, the Strauss-Kahn case illustrates how to counterbalance the presumption of guilt and give expression to the presumption of innocence in the pretrial period through vigilantly-invoked and enforced due process protections.

Drawing from this examination, the paper will then explore how to approach this model process in the more standard cases, which typically see a fraction of the judicial, law enforcement, and defense resources afforded Dominique Strauss-Kahn. The Strauss-Kahn prosecution offers several insights, three of which will be sketched at the paper’s conclusion: a requirement that prosecutorial decision-making be subject to a reasonable doubt standard; early enforcement of the prosecutor’s obligation to disclose information that is favorable to the accused; and finally, a requirement that a prosecutor explain in writing any decision to dismiss the felony charges in indicted felony cases, so that the factual, legal and policy bases of these decisions (numbering almost one quarter of New York’s superior court felony cases annually) can be aggregated, analyzed and publicized.

July 20, 2013 at 12:51 PM | Permalink


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I have not read the article, but I read the abstract, and this statement stood out: "...the vast majority of cases where law enforcement conclusions are trusted and rarely second-guessed."

Anyone who has read the entries and comments on this or other legal blogs (e.g., the Volokh Conspiracy) would recognize as a bald-faced lie the assertion the law enforcement conclusions "are rarely second-guessed" -- unless, that is, the word "rarely" has been re-defined to mean "hundreds of times every month."

This is not to mention law review (and, while we're at it, SSRN) articles, which, to the extent they concern criminal law, and essentially NOTHING BUT second-guessing law enforcement.

Posted by: Bill Otis | Jul 20, 2013 1:04:25 PM


I took the article to be referring to prosecutors and judges (those being the legal system players with whom police have the most interaction, and the legal system beign where 'cases' matter) not the general public or even the general population of lawyers. And in that context I do indeed believe that there is a tremendous habit to trust police assertions even when they are objectively not credible.

Posted by: Soronel Haetir | Jul 20, 2013 2:52:46 PM

Soronel --

The excerpt put up by Doug does not state a frame of reference, and I did not take a guess at what it would be. The entry was put up on this blog, and quotes an SSRN piece. The audience for both of those things is not, so far as I have any reason to believe, exclusively or even largely prosecutors and judges. It's the people you and I see here every day. As to that (pretty large, diversified and hardly unknown) audience, the claim that "law enforcement conclusions are trusted and rarely second-guessed" is preposterous. This and any number of widely read law blogs hardly do anything BUT second-guess them.

Posted by: Bill Otis | Jul 20, 2013 3:30:38 PM

I remember one of my first comments on this blog was vehemently disagreeing with the "perp-walk" that DSK was forced to endure while hand-cuffed and under the media cameras. I remember a MikeinCT seeing no problem with this as he wanted to know "who the potential bad guys" were and a rather weak freedom of the press argument.

Also, LE enforcement itself loves these opportunities to preen in front of the camera and embrace every minute of it, whether it is justifiable or not.

When LE speaks to the media, we DO NOT HAVE any presumption of innocence. The mere-fact that someone is treated as such MUST mean that they are guilty of "something".

On "To Catch a Predator", the thrill of the show was to see the "perpetrator" leave the house and "get taken down, the more physically abusing, the better" by law enforcement waiting outside, all on the word of a rather sick organization called "Perverted Justice". We are not that far removed from the days of the Roman Coliseum.

Posted by: albeed | Jul 21, 2013 3:28:16 PM

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