Myself and Alan Dershowitz, at least, have laid out arguments that, given the facts of the case, Dominique Strauss-Kahn could and perhaps should have been taken to trial after a Sofitel maid accused him of sexually assaulting her. Notably these arguments do not amount to a condemnation of DSK, but instead suggest that the prosecution would have had both a viable retort to those who questioned the maid's credibility and a viable prosecution strategy had they taken the case to court. Underlying these arguments is the important recognition that the American justice system is an adversarial system aimed not at getting convictions or securing defenses, but at getting as close as possible to the truth in the process of one side trying to get a conviction and the other trying to secure a defense. Within this system it is the duty of the prosecutor to weigh all prosecution strategies at his or her disposal before deciding whether to prosecute; but in the case of DSK, it seems, the prosecution bowed out, abandoning legally sound prosecution strategies as the media storm 'tried' DSK and the maid in the court of public opinion, miraculously finding the former more credible than the latter.
The case of George Zimmerman, now formally accused of killing Trayvon Martin, has been reminiscent of the DSK case for one reason in particular: the comparable laxity with which the justice system approached a very serious accusation, and the apparent reasons for such laxity.
As an aside, it shouldn't take a dead kid for us to realize that the 'Stand Your Ground' law in Florida is a bad law. The overbreadth of a law that allows someone to use lethal force against someone when there is a reasonable belief of a threat is plainly unacceptable to a reasonable person. It essentially reads like a vigilante measure, which enables just anyone packing a firearm to be capital judge and jury in the heat of even a mild confrontation, the consequences of which are literally life and death. Do we really want a law that extends above and beyond a pre-existing rubric for differentiating between self-defense and murder or manslaughter, and educates citizens to feel justified in using lethal force when they feel threatened? Against people who are wholly unarmed? I submit that the answer is resoundingly no.
The 'Stand Your Ground' law was used by the Sanford police department to justify not even arresting Zimmerman for shooting Trayvon Martin dead; so for the longest time we had the admitted shooting of an unarmed teenage boy handled without even an arrest, let alone a prosecution. The decision to prosecute need not come immediately; but the longer the police go without making an arrest, and the longer the prosecutor goes without making the charge in a case for which the facts justify at least an arrest (given the reasonable suspicion that this shooting was a crime), the more we justifiably begin to wonder what else is going on here.
I don't like counterfactuals of the sort that the seemingly lagging prosecutors in both the DSK and Zimmerman cases have spawned: 'if DSK were a black bus driver and Nafissatou Diallo were a white woman he would have been prosecuted'; 'if Trayvon Martin were white and Zimmerman black, Zimmerman would have been arrested and charged immediately.' It may well be that there is some truth to these counterfactuals; but what interests me more is what actually happened. Both the DSK case and the Zimmerman case are, I think, exceptional in the degree to which prosecutors in both cases appeared extra-circumspect, the prosecutor in the DSK case having (in)famously decided not to go forward with the prosecution at all. Perhaps race/nationality/gender/class were significant factors in the decision not to prosecute DSK, or in the decision not even to arrest Zimmerman and charge him with a crime until yesterday; but in both cases what is bizarre is the extent to which external or prejudicial factors in whatever form were allowed to deter the justice system from using the trial, given enough evidence, as a means of determining what really happened.
