Published August 23, 2011
The credibility of the alleged victim in a sexual assault case is all important. And in the DSK case, the alleged victim had blown that credibility with shifts of blame, withheld information, and, yes, even with lies. The prosecutors themselves could have had legitimate worries about being called to testify against the alleged victim.
By dropping the DSK case before trial, the prosecutors are not saying the allegations of sexual assault are lies. They are saying the allegations cannot be proven beyond a reasonable doubt.
I suspect the prosecutors themselves have doubts as to what happened in that hotel room. And a prosecutor cannot ethically bring a case to trial if he or she doesn't believe in the guilt of the defendant beyond a reasonable doubt. Of all the players in the criminal justice system, that is an ethical burden unique to prosecutors.
Think back a few years to the Duke lacrosse sexual assault case. There the prosecutor lost sight of his ethical duties to consider and disclose inconsistencies and possible fabrications made by the alleged victim. To me, that was a case of a prosecutor who didn't listen to the voices of ethics and duty, seeking instead to win at all costs.
Had that case gone to trial (pushed forward by an ambitious prosecutor), there would have been one thing standing in the way of those young men losing their freedom: reasonable doubt. That standard would have saved them. And had the DSK case gone to trial, that standard would have saved him as well.
Now, did the prosecutors do the right thing in arresting DSK, and taking the evidence to a grand jury? Absolutely. They had a complaining victim with a compelling story, physical evidence of a sexual encounter, and a possible rapist about to board a plane for France. They had to act fast and ask more questions later. And the grand jury found the evidence convincing enough to meet the lower standard of probable cause, and to issue the charges.
But as the story (or stories) unfolded, and as the suspicions about the alleged victim mounted, the prosecutors took the righteous path of alerting the defense and, ultimately, asking that the charges be dropped.
I loved being a prosecutor. I believed I wore the white hat and put the bad guys and gals away. I couldn't have loved doing that if ever had a reasonable doubt about the guilt of the person I was prosecuting.
Lis Wiehl is a Fox News legal analyst, former federal prosecutor and best-selling author.