‘Beyond a reasonable doubt” burden often too difficult to overcome

As an ex-prosecutor, I can sympathize with the prosecutors in the DSK (Dominique Strauss-Kahn) indictment and the Casey Anthony criminal trial. Honest prosecutors have to work with the hand they are dealt, or in other words, with the facts they can prove from the evidence at hand.

The only one with full knowledge of the facts of the crime, if one has been committed, is the defendant, and in some cases, confederates or conspirators. I used the term “honest prosecutors” because there are some in law enforcement — not many — that are not above manufacturing evidence of guilt or hiding evidence of exoneration to bolster their cases. The temptations for the lawyers on both sides to hide, fail to produce, or destroy inconvenient evidence are great.

I’ve worked with such documents on both sides of the aisle and while I sometimes thought, wouldn’t it be great to get rid of a “bad” piece of evidence, that’s all it remained — as a thought, because I had more concern for my reputation and respect for our system of justice to act dishonestly.

The prosecutor’s job is to actively pursue those who, based on the facts uncovered, appear to have committed the crime. In most instances, a grand jury must agree with the prosecutor to return an indictment (admittedly, most grand juries are but a rubber stamp for the prosecutor). But at this point in time, the prosecutor does not know, in most instances, the exact nature of the defense and the facts the defense counsel may produce, dredge up — or create. But the prosecutor’s duty, if he has reasonable cause to believe the accused committed the crime, is to prosecute and let the jury decide — not to give the putative criminal a pass simply because the case is a tough one.

With this in mind, let’s first look at the DSK case. The defendant, Mr. Strauss-Kahn, a prominent figure on the continent (headed the IMF) and in French politics, was accused by a chambermaid at the luxury New York hotel where he had been staying, of forcible rape. The prosecutor was accused by some French newspapers of rushing to judgment. Not so. After the prosecutor learned that the accused was boarding a plane for Europe, he had no choice. I would have done the same thing.

Remember Roman Polanski? When the prosecutors sought this well-known movie director, he fled to Europe and now resides comfortably in Switzerland, out of reach of the prosecutors. So in DSK, the prosecutors acted prudently and in time to pull Mr. Strauss-Kahn out of his first-class seat on a plane about to leave for Europe. After all, why should this prominent figure get away simply because he was accused of forcible rape by a “mere” working single-mother African immigrant?

He was a known philandering rogue, with many accusations against him. I would say the prosecutor would have failed in his duty if he let this man get away. Of course, as inevitably happens, the facts or claimed facts start to surface after the indictment, about the character of the chambermaid who lied to get into this country on asylum (many would not blame her, coming from violence-prone Guinea).

Still, Mr. Strauss-Kahn can be comforted by our system of justice, which requires the prosecutors to prove their case “beyond a reasonable doubt.” Indeed, the prosecutor acted in the finest traditions of American justice by turning over newly-found evidence that the accusing chambermaid had a less than stellar background and was a known-liar, which will likely damage beyond repair the case against the accused.

Now we come to the Casey Anthony criminal murder trial. Dealing with cold evidence (the body was not found for months), and based on the he said/she said nature of the evidence elicited at the trial, I was not the least surprised by the “not guilty” verdict on the murder charges. The “beyond a reasonable doubt” burden was just too difficult to overcome.

But I was surprised that the jury acquitted Anthony of child abuse. As for me, at least, there is no reasonable doubt in my mind that she committed that crime and deserves appropriate punishment. But a jury of her peers decided otherwise and double jeopardy will prevent her from ever being charged with those crimes again, regardless of what facts may surface in the future.

I wouldn’t have it any other way.

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Carl Steinhouse had been a federal prosecutor for the United States Department of Justice for 15 years after which he went into private practice specializing in class actions, white-collar crime, and civil and criminal defense trials. Prior to his legal studies, he had served as an intelligence analyst in the Army Counterintelligence Corps. Since his retirement, he has authored six books in his Holocaust Heroes series: “Wallenberg is Here!” “Righteous and Courageous,” “Improbable Heroes,” “Barred”, “Wily Fox” and “We Shall Be Called Israel!” See www.carlsteinhouse.com for details. He can be reached at stein0216@comcast.net.

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