June 20, 2011http://counterpunch.com/martens06202011.htmlConcerns Grow on Legal Trajectory of DSK CaseDershowitz Promotes Settlement for Strauss-Kahn as Hotel Housekeeper Lawyers Up
By PAM MARTENS
To women working in the shadows around the world, she embodies the spirits of Anita Hill, Norma Rae and Rosa Parks. She has done for hotel room attendants what the Triangle Shirtwaist Factory fire of 1911 did to expose sweatshop conditions for garment workers. In summoning the courage to charge Dominique Strauss-Kahn, the powerful then-chief of the International Monetary Fund (IMF) and lead aspirant to the Elysée Palace as the next President of France, with sexually assaulting her in his $3,000 a night suite at the midtown Manhattan Sofitel Hotel, the widowed 32-year old hotel housekeeper born in a mud hut in Guinea, is igniting critical global dialogues. The topics are as diverse as French trivialization of violent sexual assault, needed legislation to provide panic alerts for hotel room attendants in danger, and the structural austerity imposed on struggling nations by the IMF as a thinly disguised economic rape.
This young woman who came to the U.S. just seven years ago has done all this without uttering a word in public. By testifying repeatedly to law enforcement on the alleged sexual crimes committed against her by this powerful and politically connected man and agreeing to testify in a criminal trial in open court, she has put on international display her confidence that America will vindicate her belief that it cares about justice for every human being, regardless of ethnicity or station in life.
But in recent days concerns have grown about the sudden upheaval in the housekeeper’s legal team. The growing fear is that the next global topic for debate will be the monetization of rape in America.
The woman about whom so much has been written in the press is ironically someone who has essentially been stripped of an identity: she has no first or last name to most of the American people; her whereabouts is unknown; she can’t resume her normal work life. There is no evidence that her colleagues at the New York Hotel and Motel Trades Council union are able to stay in touch with her and provide her a support network. According to the New York Times, her brothers in Guinea have been unable to reach her on her cell phone.
Her original lawyer, Jeffrey Shapiro, and renowned civil rights lawyer, Norman Siegel, are off her case and neither will say why. Siegel, a stalwart defender of the First Amendment, was uncharacteristically sparse in his explanation by phone: “I can only say I am not representing her.” Shapiro did not return a phone call and email request for an explanation.
More troubling, Harvard Law professor Alan Dershowitz has embarked on a media road show to habituate the public to the idea that our Rosa Parks with a cleaning cart and an international workers’ platform is about to opt for “a big payday.” If that were true, given her sequestered status, it is impossible for the public to know if she voluntarily reached that decision or if some unseen hand made it for her.
Dershowitz told Newsweek in an interview published on June 12 that he thinks the woman’s lawyer is already “working together” with the Strauss-Kahn attorneys. The exact quote from Dershowitz follows:
“And my sense is that the victim would like a big payday. Why does she want to make a deal now? Why not wait until the conviction, and then sue? [Because] the defendant doesn’t have much money. All the money is his wife’s money. And if you win a suit—let’s assume she wins a $10 million judgment against him. She’s not going to collect it. He’ll go bankrupt. Whereas if she settles the case, the wife pays up. So the difference is between getting, say, a million right now from the wife, or $10 million from the husband which the lawyer has to spend the rest of his life chasing. It’s in DSK’s [Dominique Strauss-Kahn] best interest to settle this case. It’s only not in Vance’s [Cyrus Vance, the New York County District Attorney prosecuting the case] interest to settle the case. You saw in the paper that the lawyer for the victim is ‘working together’ with the prosecution. Nonsense. He’s probably working together with the defense. They have a joint interest.”
Dershowitz has now appeared on Bloomberg television twice on this topic; in the pages of Newsweek and in the French publication, Le Figaro. In each instance, he is talking up a no-trial settlement and even volunteering advice on how it can be done without landing oneself in the slammer. When asked by the Le Figaro reporter “how to seal such an agreement without obstructing justice,” the advice from Dershowitz is audacious:
“This is possible through a parent who does not fall under the jurisdiction of New York. The family members of DSK in Paris, for example, do not. If they try to reach an agreement directly with the New York lawyer, they can be charged with obstruction. But they can negotiate directly with the family of the complainant outside the State of New York or Guinea. It is an extremely delicate dance to lead…[the prosecutor] cannot prevent the family from making an agreement. All he can do is threaten to open an investigation for obstruction of justice. He can say: ‘If ever I hear of an explicit agreement or implicit exchange of money in order to buy the silence of the victim, you will go to jail.’ Then each risk up to five years in prison. But it is still difficult for the prosecutor to stop the agreement…[the woman’s lawyer] may want to see justice done, but ultimately, money is more important. When he said he was cooperating with the prosecutor, it was just a message to the defense that said he expected an offer.”
What does it say about a society when one of its preeminent criminal law professors is casually on the stump extolling the dumping of a sexual assault case before the case has even begun in court because “money is more important.” Cyrus Vance, by the way, does not represent himself in this matter. As New York County District Attorney, he represents the public interest. If Vance has strong enough evidence to get a conviction, if he has evidence of serial sexual assaults on women, he has a legal and moral duty to take this predator off the streets; money and meddling by a Harvard Law professor notwithstanding. (An email to Professor Dershowitz at his Harvard email account asking if he were a paid consultant to the Strauss-Kahn team has thus far gone unanswered.)
Who is the new law firm that has emerged on the scene and refuses to say how it came to represent this union worker?
Thompson Wigdor is a New York law firm that represents the management of large multinational companies against their employees while simultaneously representing the lone employee fighting for justice against, uh, large multinational companies -- a David v. Goliath firm or Goliath v. David firm, depending on the particular day’s press release. The split personality of the firm is even evident on the law firm’s web site. There’s a link for all the good things they’ve done for the corporate employer; another link for championing the little guy. It’s a migraine-producing exercise just to lightly contemplate how all those conflicts of interest might be kept at bay. Nonetheless, there is no disputing that these are aggressive, well-credentialed lawyers who have scored big wins.
All three founding partners of the firm, Kenneth P. Thompson, Douglas H. Wigdor, and Scott Browning Gilly, cut their training teeth at Morgan, Lewis & Bockius, the law firm for Wall Street’s biggest players. To Wall Street veterans, the name Morgan Lewis evokes the firm that battled successfully in courts around the country to allow an entire industry to force workers’ claims away from the transparency of the nation’s public courts and into an industry-run private justice system called mandatory arbitration. It is noteworthy that only one industry, Wall Street, had that level of non transparency and only one industry, Wall Street, imploded; taking the U.S. and global economy with it.
Gilly’s name has now been dropped from the firm. He resigned recently after U.S. District Court Judge William Pauley fined the firm $15,000 for deception in a deposition. According to the transcript of the hearing, the client and her attorney knew she was starting a new job in two days but intentionally withheld that information in her deposition to ostensibly enhance the amount of her damages in settlement talks.
Guy Cohen of Davis and Gilbert had this to say to Judge Pauley in asking for sanctions against Thompson Wigdor:
“I don’t mean to get up on a soapbox here, your Honor, but the functioning of our judicial system counts on honesty. It relies on honesty in depositions, honesty in document production, honesty in expert disclosures. It relies on fundamental fairness between parties in their interactions, particularly when it regards settlement…you have a plaintiff and their lawyers who all know, who very clearly have worked together in a multifaceted bad faith attempt to provide misleading information in order to improve their settlement position…”
Gilly’s absence on the roster of attorneys at Thompson Wigdor avoids another prickly issue: he and Thompson Wigdor represented a large drug store chain as it fought a New York union in Federal District Court in New York four years ago.
The hotel housekeeper charging Strauss-Kahn with sexual assault is part of a very feisty and strong union, Hotel and Motel Trades Council, which has become the face of this battle outside the courtroom. Photos and videos of uniformed housekeepers from this union, raising their hands in defiance outside the arraignment of Strauss-Kahn on June 6, are linked at 2,180,000 mainstream and alternative media web sites according to the Google search engine. The housekeepers, shouting “shame on you,” were from the Pierre, Essex House, Helmsley and other rarefied digs in Manhattan.
In 2007, Gilly, while a named partner at Thompson Wigdor, was the lead attorney for drugstore chain Rite Aid when another union, Service Employees International, (SEIU 1199) charged it in court papers with engaging in a union avoidance campaign for the drug stores it acquired from Brooks and Eckerd.
This month, the housekeeper’s new lawyer and spokesperson, Kenneth Thompson of Thompson Wigdor, appeared on French television asking for women in France and Africa who may have been sexually assaulted by Strauss-Kahn to call his firm; the firm wanted to help them. The Telegraph of the United Kingdom quoted Mr. Thompson as follows: "My law firm champions the rights of people who are taken advantage of all over the world. And so we take this case because we feel that no woman should be sexually assaulted anywhere."
Compare that characterization with how Thompson opened his case on behalf of a Hollywood Video store manager in March 2004. The man had been indicted on April 25, 2003 by the Bronx District Attorney’s office, following the impaneling of a grand jury, on one count of rape in the first degree, one count of rape in the third degree, one count of attempted rape in the first degree and thirteen counts of sexual abuse in the first degree against five different women who were his subordinates in his store. Three of the women were 17; one was eighteen; one 21 and one 29.
Thompson told the lone male judge, Steven Barrett, who was hearing the case without a jury: "This is a case about a man who has been falsely accused of rape and sexual assault…This case is part of a scheme for these women to get paid. They want to line their pockets with money, even if an innocent man goes to jail. The evidence will show these women lied to the police and the grand jury. We will expose these lies because we have the video surveillance tape and telephone records, which will prove who is lying.”
The defendant was originally represented by a Legal Aid attorney. How did a video store manager end up with a high powered attorney like Kenneth Thompson? Thompson will not answer that simple question.
Representing the company, Hollywood Video, in the matter was Michael Carlinsky, a top New York litigator whose client roster reads like the who’s who of Wall Street. Carlinsky is currently with Quinn Emanuel but had previously spent nine years with Orrick, Herrington & Sutcliffe LLP, one of the most powerful management-side Wall Street law firms in sexual abuse or discrimination cases as well as many other areas. Like Morgan Lewis, the Orrick firm also championed the establishment of a private justice system to hear Wall Street workers’ cases. The system that materialized did not require arbitrators to follow case precedents or statutory law as required in a court setting; discovery was limited; and it was next to impossible to appeal to a court because reasoned decisions were not issued. Egregious abuses occurred, like humiliating women in depositions by grilling them on their gynecological records and menstrual cycles. In one case, a lawyer for a Wall Street firm openly argued to the arbitrators that they should not follow the law because it was wrong.
One possible explanation for Carlinsky’s lofty representation of Hollywood Video is the fact that two major Wall Street firms, UBS Warburg and the now defunct Bear Stearns, had underwritten hundreds of millions of dollars of bonds for the video store’s parent, Hollywood Entertainment Corporation. A sensationalized jury trial that played out for weeks could have impacted the company’s fortunes and customer base. (The company’s fortunes turned out rather badly anyway. The successor firm, Movie Gallery, Inc., liquidated after acknowledging $500 million to $1 billion in debt and a miniscule $10 million to $50 million in assets.)
Carlinsky responded promptly and fully to my questions in an email: “I was retained by the general counsel of Hollywood Video because of my trial skills and experience handling crisis-type cases. The GC [General Counsel] knew my firm, and had used my firm in prior matters. I did not sit at the defense table during the criminal trial, but was involved in the defense strategy and in the selection of counsel for the defendant.”
The store manager was acquitted. We will never know what happened because all the records of the criminal trial are sealed, as is typical in an acquittal. According to Thompson, “the City of New York ended up paying the store manager $500,000 to settle his malicious prosecution case that he filed against the City” following his acquittal.
But then something very odd happened. Bragging rights were posted as follows on the Thompson Wigdor law firm’s web site in the section showing what the firm had accomplished for its corporate clients:
“Investigated and defended claims of sexual harassment and retaliation by 11 former employees of a major movie-rental chain against the company and one of its former store managers. After Thompson Wigdor LLP successfully obtained a full acquittal of the individual supervisor in a related criminal sexual assault trial, the matter was resolved for a fraction of plaintiff's previous settlement demands.”
This paragraph relates to the fact that a civil suit by 11 former female employees against the very same store manager followed the criminal suit. The women were asking for $50 million. The complaint included serious charges that the women had repeatedly sought relief from the corporate management but instead the corporation allowed the store manager to harass and retaliate against them because this man ran a profitable store.
I asked Thompson in an email why even a “fraction” of $50 million would have been paid to the plaintiffs if, indeed, the store manager was an innocent man. Thompson responded as follows:
“[The store manager] was certainly an innocent man who was falsely accused of the criminal charges brought against him. And I proved that at his criminal trial. With respect to your question regarding the settlement of the civil case brought against Hollywood Video and [the store manager], you must speak with the lawyers for Hollywood Video about that.”
Thompson presumably knows full well that a stringent confidentiality order is in place on the settlement with the 11 women and the attorneys are barred from speaking about the matter.
The Judge who handed down the store manager’s acquittal, Steven Barrett, came under fire in another case. A 31-year old Columbus High School Special Ed teacher was convicted of raping a 15-year old female student and was sentenced by Judge Steven Barrett to six months in jail -- to be served on weekends.
If there is to be a ubiquitous search for the soul of a nation on matters of equal justice, let it not be isolated to France.Pam Martens worked on Wall Street for 21 years, retiring in 2006. She has been writing on public interest issues for CounterPunch since that time. She has no security position, long or short, in any company mentioned in this article. She can be reached at firstname.lastname@example.org http://counterpunch.com/martens06202011.html