The Annals of Unsolved Crime

by Edward Jay Epstein

  At 3:29 p.m., evidently still unaware of what was happening at the Sofitel, DSK called the hotel from the taxi, saying, according to the police transcript, “I am Dominique Strauss-Kahn, I was a guest. I left my phone behind.” He then said he was in room “2806.”

  At that time, Diallo had just left the hotel en route to St. Luke’s–Roosevelt Hospital to be examined, but the police were still at the hotel. DSK was asked to give a phone number, so that he could be called back after someone searched for his phone. He furnished it.

  At 3:33 p.m., police and security staff, using a security electronic key, then reentered the presidential suite. The police did not find the phone.

  When DSK was called back thirteen minutes later, he spoke to a hotel employee who was in the presence of police detective John Mongiello. The hotel employee falsely told him that his phone had been found (it has never been found) and asked where it could be delivered. DSK told him that he was at JFK airport and said, “I have a problem because my flight leaves at 4:26 p.m.” He was reassured that someone could bring it to the airport in time.

  “OK, I am at the Air France terminal, gate four, flight twenty-three,” DSK responded. At 4:45 p.m., the police called DSK off the plane and took him into custody. He was then driven back to New York City.

  The police arrived on the scene at the Sofitel at 2:05 p.m. Two uniformed policemen can be seen on the CCTV video. They walked through the main lobby to the security area, where they were greeted by the hotel’s manager, Florian Shotz, who himself arrived only ten minutes earlier on his motor scooter. The police then escorted Diallo to a private room. It is not clear when they began to question her or officially took control of the case. According to the prosecutor’s bill of particulars, members of the hotel security staff had remained in contact with Diallo for at least another twenty-five minutes, since it states that at 2:30 p.m. “a photograph of the defendant was shown to the witness [i.e. Diallo] by hotel security without police involvement.” If so, even after leaving the bench (and video surveillance) and going into a room with the police, she remained available to the Sofitel staff. (I asked both Deputy Commissioner Paul Browne and Deputy Inspector Kim Royster why, according to the bill of particulars, the police were not officially involved at this point, but they declined to comment.) Nor was the presidential suite entered by the police, according to the records, until 2:52 p.m., which was five minutes after Sheehan, the Accor safety director, arrived at the hotel. It was not until 3:28 p.m. that the police took Diallo to the hospital, and that she was finally medically examined and then formally interviewed by police detectives.

  The account she provided was of a brutal and sustained sexual attack. She described how her attacker locked the suite door, dragged her into the bedroom, and then dragged her down the inner corridor to a spot close to the bathroom door—a distance of about forty feet—and, after attempting to assault her both anally and vaginally, also forced her twice to perform fellatio.

  After that, she said she fled the suite and hid in the far end of hallway until he left. She later identified DSK in the lineup as her attacker.

  Based on her description, the police crime-scene unit sealed off two crime scenes—the presidential suite and the far end of hallway—and located five areas of the carpet in the interior hallway leading to the bathroom of the presidential suite that potentially had stains of semen or saliva. The next day, May 15, police detectives brought sections of the carpet from the hallway, as well as the wallpaper, to the police forensic biology lab. A preliminary examination showed that one of the five stains in the carpet, located about six feet from where Diallo had said she was assaulted, contained a mixture of semen and amylase (an enzyme from saliva) that was consistent with the DNA of DSK and Diallo. This was direct evidence that they had engaged in fellatio, as Diallo had claimed. (Three of the other stains also tested positive for semen, as did the wallpaper, and a fourth stain showed a mixture of semen and saliva, but these stains were determined to be from six other individuals, and their sexual activity was assumed to be unrelated to the incident under investigation.)

  The next issue was whether force had been used. To this end, DSK was examined at St. Luke’s–Roosevelt Hospital for any telltale bruises, traces of her DNA under his fingernails, or any other evidence of a struggle. None was found. Then, on Sunday, May 15, DSK was formally arrested.

  The Manhattan district attorney office, under DA Cyrus Vance, Jr., was possibly the best staffed prosecution team in the United States. Its trial division alone had more than fifty assistant district attorneys, as well as dozens of investigative analysts and paralegals. Its sex-crimes unit, which had been assigned the case, had been the subject of a laudatory HBO documentary. Immediately after DSK’s arrest, Lisa Friel, who had headed the sex-crimes unit, began examining the case, as did John “Artie” McConnell, the prosecutor assigned to the case; Ann Prunty, his “second” chair; and Joan Illuzzi-Orbon, the assistant DA who headed the newly created hate crimes unit. The first issue facing this formidable team of prosecutors was bail.

  Bail is not unusual in the case of a first-time offender with no previous criminal background who is employed. DSK was the managing director of the IMF. His lawyers, William W. Taylor, III, and Benjamin Brafman, immediately moved to arrange bail. According to DSK’s lawyers’ understanding of their conversation with the prosecutors, a deal was arranged at 4:00 p.m. on May 15 whereby the prosecution would recommend $250,000 cash bail and DSK would relinquish his passport. But at 8:00 p.m. that Sunday, Lisa Friel told Brafman on the phone that “things had changed and there was no more agreement.” Instead, the DA would recommend that bail not be granted. (Friel herself left the case shortly afterward and resigned from the district attorney’s office.)

  What had reportedly happened in the four-hour interim was that Vance had received information from Paris bearing on the case. Although it had been initially reported that this phone call concerned a Frenchwoman, Tristane Banon, who had charged that DSK had attacked her, that accusation had not even been officially filed on May 15 (and it was subsequently dismissed).

  Instead, an investigation in the French newspaper Libération by Fabrice Rousselot found that the call came from the phone of a senior official in the French government. The official, according to Rousselot’s investigation, said that DSK was implicated in a prostitution case that involved, among other things, transporting prostitutes to Washington, D.C. If it turned out to be true that DSK might be involved in a Washington prostitute ring, releasing him on bail could embarrass the DA’s office, especially if he fled.

  There may have been more than one phone call from Paris. At the bail hearing the next day, according to the court transcript, McConnell requested that Judge Melissa Jackson hold DSK without bail, explaining in an apparent reference to the communications with Paris that “we are obtaining additional information on a daily basis regarding his behavior and background.” He continued, “Some of this information includes reports he has in fact engaged in a conduct similar to the conduct alleged in the complaint.” He added that these reports were as yet unverified, but he did not specify who was supplying his office with these reports “on a daily basis” less than two days after DSK’s arrest. But if the reports concerned DSK’s sexual activities at the W Hotel in Washington earlier that week, where he had attended a sex party on May 13, this raises the question of how the French government, or whoever was supplying the reports, had obtained such up-to-date intelligence on DSK’s private activities in Washington.

  For their part, the prosecutors now strongly deny that this information from France was the decisive factor in their opposing bail. Their principal concern, according to a source in the prosecutor’s office, was that DSK, if released on bail, might use his connections to flee to France. Whatever shaped the decision, Judge Jackson acquiesced and denied DSK bail.

  The prosecutor’s opposing bail had two immediate consequences. First, DSK was imprisoned on Rikers Island for four days (after which another judge
granted bail). Second, it started a relatively brief clock for the prosecutors. New York state law required the prosecution to gather evidence and present it to the grand jury within 144 hours. This rush resulted in a presentation before all the facts could be assembled. For example, within that period, the prosecutors had not yet obtained electronic key-swipe records. When they did the following month, those records cast a very different light on the case.

  The reasons that the prosecutors may have been willing to risk this rush to judgment is, as the district attorney publicly stated, that it was assumed that there was a solid case against DSK. After all, preliminary DNA evidence established that DSK had a sexual encounter with Diallo. The semen stains, moreover, placed it in the presidential suite in the area that she described to the police. Neither DSK nor his lawyers had denied that it had occurred. Instead, they said that it was not forced. So the only legal issue was whether or not it was consensual. That would be up to a jury to decide. And as is common in sex-crime prosecutions, the verdict would depend heavily on the credibility of the prosecution’s only real witness. If the jurors believed Diallo beyond a reasonable doubt that force was used, DSK would be convicted. And, as far as her creditability went, the prosecutors believed that they were on solid ground. The initial police investigation had turned up no “red flags” in Diallo’s background. She had, for example, never been arrested or accused of a crime. Although she had entered the United States under an alias (as do many refugees), she had been granted political asylum by the U.S. Immigration Court. Diallo had worked for the Sofitel for three years without any reported problems and was described by her supervisor as a “model employee.” And while she was the only witness to the attack itself, two other hotel employees—the room-service waiter and the head housekeeper—had given police statements that supported her story (although, as it later turned out, these witnesses had the opportunity to hear Diallo tell her story in the security area before the police were called in).

  When the prosecutors went to court on May 15 and argued against bail, they assumed they had a credible witness.

  Diallo also impressed them subsequently with the vivid account she gave of experiencing a previous rape by soldiers in Guinea. She had been so convincing that she brought tears to the eyes of one of the prosecutors. After hearing the testimony of Diallo, the grand jury indicted DSK on May 18. It charged him with two counts of criminal sexual acts, one count of attempted rape, two counts of sexual abuse, one count of unlawful imprisonment, and one count of forcible touching.

  DSK pleaded not guilty to all the charges. He was then granted bail on conditions tantamount to house arrest. The case was adjourned to July 18, 2011. In the interim, the prosecutors continued to subpoena records, including cell-phone transmissions, credit-card records, and CCTV videos. However, as they gathered this evidence, the case became, as one person in the prosecutor’s office said, “curiouser and curiouser.” On June 7, Diallo’s lawyer, Ken Thompson, who was a former prosecutor himself, delivered an unexpected bombshell. He told the prosecutors that his client had been untruthful in her interviews with the prosecutors in describing her background and circumstances. Specifically, he said that she had fabricated the story she had told them about being raped by soldiers in Guinea. While she had not told this story under oath, and it had no bearing on the DSK case, the revelation stunned the prosecutors. Among other things, it meant that she could provide a convincing description of a sexual encounter that she had invented. But why would she have been untruthful about such an embarrassing event? It was initially suggested that she had told this false account to support a similar account she had used in her immigration application. But when prosecutors then examined her immigration records, they found that she had told no such story. When re-interviewed on June 8, Diallo admitted that the prior rape story was untrue. Then the prosecutors found that she had told a far more damaging untruth, since it was about the DSK case itself. Diallo testified to the grand jury that immediately after she had been assaulted, she had fled the room and gone to the far end of the 28th-floor hallway. This was the story that she had also told to police and prosecutors. When she was asked why she had not used her keycard to go into another room from which she could call for help, she said they all had “Do Not Disturb” signs on their doors. But when the prosecutors obtained the electronic key records from the Sofitel hotel for the rooms on the 28th floor, which was not until late June, they showed that Diallo had entered another room, 2820. If so, she had been untruthful under oath about her whereabouts before her outcry. The prosecutors could not immediately re-interview her because, for more than a week in June, she refused to speak further to them, claiming she was ill. Finally, on June 28, Diallo admitted that she had been untruthful about not going into 2820. She now said that she went directly into 2820 after running out of the presidential suite, and that she then spent considerable time cleaning and vacuuming the room. This version would explain where she had been between 12:13 and 12:30 p.m. (when she met the other maid). The problem here is that the key records show that she did not use her key to enter room 2820 until 12:26 p.m., thirteen minutes after the encounter. When confronted with this discrepancy one month later, she changed her story yet again. On July 27, in what the prosecutors describe as “Version 3,” she says she waited in the hallway for most of that time. Then, when she saw DSK leave the presidential suite, which was at 12:26 p.m., she entered 2820 to pick up her cleaning equipment, which she had left there earlier. And she then went back to the now-empty presidential suite.

  The prosecutors now had to contend with the fact that not only had she been untruthful under oath to the grand jury about this case, but that she had concealed her visit to room 2820 from the police, which had effectively obstructed the investigation. The prosecutors noted that if she had mentioned her visits to 2820, that room would have been declared part of the crime scene and searched for fingerprints and DNA by the police. But she did not do so, and the room was immediately rented out.

  In addition, it also developed that soon after DSK had been arrested, Diallo discussed with her fiancé DSK’s ample financial resources. Since her fiancé was in prison on drug charges at the time, the conversation was recorded. While a victim is entitled to recover financial damages, this conversation might be used by DSK’s lawyers in cross examination to suggest that she had had a financial motive. She was also vulnerable because she had made possible fraudulent statements elsewhere for financial gain. For example, she admitted that she repeatedly excluded her earnings from the Sofitel from her low-cost housing applications so as to be eligible for lower rent. After extensive interviews, the prosecutors noted “In sum, the complainant has been persistently, and at times inexplicably untruthful in describing matters of both great and small significance. In our repeated interviews with her, the complete truth about the charged incident and her background has, for that reason, remained elusive.” Diallo was not a witness whose credibility they could recommend to a jury.

  Nor did the other evidence prove that force had been used. The DNA samples taken from Diallo’s clothing and the carpet of the interior hallway in the presidential suite showed that there had been a sexual encounter between Diallo and DSK, but they in themselves did not show that it was forced. Neither did the medical examinations. Diallo claimed that DSK had dragged her around the suite, but when both parties were examined at the hospital and scrapings were taken from under their fingernails, doctors could find no clear signs that force was used by DSK to overpower Diallo. Five weeks later, Diallo’s lawyers reported that an MRI showed a “SLAP type 2 tear” in her left shoulder, but when the prosecutors’ expert orthopedic surgeon examined the MRI, he concluded that the injury had not been sustained during her encounter with DSK, but well afterward, and in his opinion had been self-induced by “repeated overhead use of the upper extremity.” So the prosecutor could find no medical evidence, other than an injury that its own expert said was caused by Diallo herself after the incident, that proved the encounter wa
s not consensual.

  By the end of July, Diallo had changed her story on this chronology at least three times, leaving it uncertain which, if any, of the versions was true. The prosecutors came to the conclusion that they could not bring the case to trial. In August, the task of preparing a recommendation for dismissal of all the charges was given to Assistant District Attorney Joan Illuzzi-Orbon, a well-regarded prosecutor who by June had become “second chair” to McConnell.

  On August 22, the prosecutors submitted a twenty-five-page recommendation for dismissal of all the charges. It was signed by Illuzzi-Orbon and McConnell, who wrote in the submitted motion, “the nature and number of the complainant’s falsehoods leave us unable to credit her version of events beyond a reasonable doubt.” They said that Diallo “has given irreconcilable accounts of what happened,” and had told untruths not only to the prosecutors but under oath to the grand jury about her whereabouts after the encounter. It was a startling turn of events for prosecutors to discredit their own star witness. The judge had little choice but to approve the motion. DSK had been indicted on the basis of testimony of a witness who had been untruthful under oath. DSK then left the court, an innocent man in the eyes of the law. (Diallo’s later civil suit against DSK was settled in December 2012 for an undisclosed sum.)

  But there may have been another crime committed in the effort to end DSK’s political career. The French spy agency Direction Centrale du Renseignement Intérieur, or, as it is called, the DCRI, reportedly made DSK a target of its surveillance. According to the 2012 book The President’s Spy by Didier Hassoux, Christophe Labbé, and Olivia Recasens, the director of the DCRI, Bernard Squarcini, had set up “a special group” in collaboration with the Élysée Palace (the French equivalent of the White House) to focus on DSK in March 2011—two months before he was arrested in New York. The authors, all investigative journalists with the French weekly Le Point, based their findings heavily on interviews they had with present and former members of the DCRI. They describe in detail the capabilities of the DCRI to intercept emails and to monitor tablets and computers. If this was true, Sarkozy’s staff was likely privy to the intelligence that was being collected by the DCRI at the time DSK arrived at the Sofitel in New York. Such surveillance might also explain why, ninety seconds before his taxi pulled up to the Sofitel hotel at 7:08 p.m. on May 13, its arrival was apparently anticipated by the hotel staff.