July 06, 2011
Casey Anthony, DSK, Prosecutorial Discretion and Liars
Posted by Christine Hurt

I'm supposed to be devoting my summer to thinking about things like microfinance and securitization, but the past month I've been thinking at odd moments about two cases that have been capturing a lot of media attention:  the prosecution of Casey Anthony for the murder of her 2 year-old daughter, Caylee, and the almost-prosecution of Dominique Strauss-Kahn for the sexual attack on a housekeeper at a NY hotel.  Anthony was acquitted by a jury yesterday in the face of fairly thin evidence, notwithstanding her many admitted lies and inconsistencies.  DSK seems to be about to avoid prosecution though he was indicted for sexual assault earlier.  These cases are politically and socio-economically fairly far apart:  the defendant in one was an unwed mother at age 19 while the other is a 60-ish Frenchman who headed up the IMF.  But the cases have at least one thing in common:  the person at the center of both is a liar.

Prosecutors have a lot of discretion over whether to bring criminal actions against defendants and to choose the charges.  I have nothing to add to the voluminous legal literature on this.  In the Anthony case, prosecutors no doubt felt pressure to indict someone in a case involving the dead body of a cute toddler.  But, they probably felt more confident than they should have considering the lack of physical evidence based on the fact that Anthony is a liar.  And a horrible one.  She lied to investigators about almost everything but her name.  Conventional wisdom says that juries hate liars.  And all of the U.S. hates Casey Anthony, so why not go ahead and prosecute?  But Anthony won, even though she lied at every turn and could provide no evidence of her defense -- that Caylee accidentally drowned but that Anthony covered up the drowning with the help of Casey's dad, who made her into a pathological liar by sexually abusing her.  The judge even ruled that the alleged sexual abuse couldn't be mentioned in closing because no evidence backed it up.  Many are outraged by the verdict, but one can argue that the rule of law prevailed.  Regardless of what you think in your gut, we try not to sentence defendants to death based on the fact that they are crappy parents, get tattoos, have used cars that smell "like death" or tell lies.

So then what does Anthony's verdict tell us about the DSK case?  Maybe that we can trust juries to understand that just because people lie, that doesn't mean that they should be tossed around by the legal system.  To catch up, DSK's unnamed accuser has told some lies in the past:  on her asylum application (from Guinea) and on her IRS tax returns.  She has also changed her story:  first, she told a supervisor about the attack immediately, now she says she cleaned another hotel room then finished DSK's before contacting a supervisor.  It also may be that her boyfriend is a drug dealer and uses her bank accounts as part of his business dealings.  They may also be trying to make lemonade out of lemons with this case against a wealthy defendant.  But, just as Anthony's lies don't necessarily add up to her murdering Caylee, the accuser's lies here don't necessarily mean than she was not assaulted.

Anthony may tell lies out of mental illness, or she may just tell lies recklessly to avoid punishment either for covering up her child's accidental death or for a larger role in the child's death.  She blamed Caylee's disappearance on two people who don't exist, and at the last minute blamed her father for atrocious acts.  If Caylee was lying about her father, then that has to be one of the worst lies imaginable.  DSK's accuser tells lies not to escape punishment, but to escape a dangerous existence in Guinea.  (Here is a great op-ed about the accuser's motivations to lie.)  You don't have to be Victor Hugo to realize that sometimes good people commit small infractions to save the lives of their family and themselves.  Most of us in the U.S. have absolutely no idea what we would die to escape across the ocean so we and our children won't be raped or killed.  Lying or exaggerating to gain asylum is probably the least morally questionable of the choices we might make.  Surely if the Anthony jury could see past her lies to look at the evidence, a jury in a DSK case could look past the accuser's lies to judge the evidence.  Anyway, just some random thoughts from a crazy month of looking at the CNN website!

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