Could Strauss-Kahn's NY case include Paris claim?

[July 19, 2011]  NEW YORK (AP) -- If the New York sexual assault case against Dominique Strauss-Kahn ever goes to trial, much will doubtless be made of his accuser's background. But what about his?

Prosecutors have already hinted they might like to peer into the former International Monetary Fund leader's past. At his first court appearance, a prosecutor made a point of noting reports of "similar" conduct abroad -- an apparent reference to the French writer who has now brought a criminal complaint in Paris about an attempted rape she says she suffered at Strauss-Kahn's hands in 2003.

But given New York law, legal experts say it could be knotty, but not impossible, for prosecutors to try to introduce any allegations beyond the actual attempted rape and other charges stemming from Strauss-Kahn's May encounter in May with a Manhattan hotel maid.

For now, it's far from clear that the case will get to that point. But if it does, it could become a high-profile proving ground for a principle enshrined in a more than century-old case that was a sensation in its own right and yielded a landmark ruling.

The principle generally limits mentions of what's sometimes called uncharged misconduct or prior bad acts. But some exceptions could give prosecutors an opening to broach the French novelist's allegation -- especially if Strauss-Kahn were to assert the New York episode was consensual or have witnesses speak to his good character, experts said.

"I would not say that it's a slam-dunk that it would be inadmissible," said Gary Muldoon, a Rochester, N.Y., defense lawyer. But in any case, "it's a hotly contested issue."

The Manhattan District Attorney's office declined to comment, as did Strauss-Kahn's lawyers Benjamin Brafman and William W. Taylor III.

Strauss-Kahn denies the allegations in both New York and Paris, where authorities have launched a preliminary investigation into writer Tristane Banon's complaint, filed earlier this month.

Strauss-Kahn, 62, has long had a reputation for womanizing, and his behavior has raised questions -- but not criminal complaints -- before.

He was briefly investigated in 2008 over whether he had an improper relationship with female subordinate at the IMF; the agency's board concluded the relationship was consensual but he'd made "a serious error of judgment."

The French magazine Le Point, quoting an anonymous friend of Strauss-Kahn's wife, has reported that he told her he had sex with three women the night and morning before the alleged noontime attack in New York. The New York Post, citing anonymous sources, has reported that he and a woman were seen on a surveillance tape taking an elevator up to the floor that housed his hotel room around 1:30 a.m.

But it could be still more difficult for prosecutors to get the OK to mention affairs other than Banon's criminal complaint.

In New York, prosecutors are re-evaluating their case after saying earlier this month that the housekeeper misled them about her background and her actions right after the alleged assault. That undercut her overall credibility, although she hadn't changed her account of the alleged attack itself, they said.

The woman, 32, told authorities Strauss-Kahn chased and trapped her in his suite, grabbed her breasts, made her perform oral sex and tried to yank off her pantyhose before she broke free.

Banon, now also 32, says Strauss-Kahn tried to wrench off her clothes and shoved his fingers in her mouth and underwear as she tried to fight him off on the floor of an empty apartment where she was interviewing him for a book. The Associated Press does not name victims of alleged sex crimes unless they agree to be identified or publicly identify themselves, as Banon has.

On the surface, Banon's accusations might seem like something potential jurors would want to take into account when weighing the New York case against Strauss-Kahn. And that's precisely why New York courts are wary of allowing such additional allegations.

"No matter how notorious a criminal the party on trial may be, neither his general reputation nor other specific offenses can legally be proven against him as evidence of his guilt of the offense charged. That such proof is persuasive and has great influence when introduced, upon courts and juries, cannot be doubted; but ... such proof does not bear upon the issue in the case, and hence it is misleading," the state's highest court, the Court of Appeals, wrote in a 1901 decision in a notorious case against Roland Molineux, a socially well-connected chemist charged with a deadly poisoning.

Molineux was accused of sending a bottle labeled as antacid, but actually full of cyanide, to an athletic club sports director he despised. The club worker innocently gave the concoction in December 1898 to an ailing female relative of his; she died.

At Molineux's trial, prosecutors suggested Molineux was also responsible for an uncharged crime: the November 1898 poisoning death of a club member who was courting a woman Molineux also was pursuing -- and married 19 days after the man's death.

Molineux was convicted of murdering the woman and sentenced to death. But the high court found his trial had been unfairly biased by mention of his romantic rival's death. Molineux was retried and acquitted. He was later committed to a mental hospital and died there in 1917, at age 51.

Besides upending one of the most celebrated New York cases of its day, the ruling formed a template for federal court rules about admitting uncharged misconduct, said Thomas J. Reed, an emeritus professor at Widener Law School in Wilmington, Del.

New York's high court left room for admitting what's now often dubbed "Molineux evidence" in certain circumstances. And prosecutors could try to argue that Banon's claims fit some of those exceptions, experts say.

For example, subsequent court rulings have said evidence of uncharged crimes can be admitted in sex-crime cases in which defendants say an encounter was consensual, according to Muldoon's book.

Prosecutors also might claim Banon's allegations would help establish Strauss-Kahn's criminal intent or modus operandi, two well-established exceptions to the Molineux ruling's strictures. But the latter is generally reserved for highly distinctive, "signature" crimes, noted New York Law School professor Frank A. Bress, who oversees the school's criminal defense clinic.

In any event, prosecutors would have to persuade a judge that the information was valuable enough as proof to outweigh its potential for prejudicing the jury. And they could have to prove Banon's allegations, as yet untested in French courts, by "clear and convincing" evidence, experts said. That might be a complicated prospect for events that allegedly happened in a foreign country nearly a decade ago, with witnesses who live overseas.

But Strauss-Kahn's own strategy also could affect prosecutors' prospects of invoking Banon. Should the French economist and diplomat present character witnesses to paint a good view of him, prosecutors could ask those witnesses whether they were aware of Banon's claims.

"That presents a problem for the defense in this case -- whether they call character witnesses," Bress said.

If Strauss-Kahn considered testifying himself, prosecutors and defense lawyers would likely get a judge to rule in advance on what prosecutors could ask him about any allegations beyond the charges, Bress said.

[Associated Press; By JENNIFER PELTZ]

Jennifer Peltz can be reached at http://twitter.com/jennpeltz.

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