Pulling the plug leaves many questions
The only surprising thing about the Kevin Spacey case going south is that the prosecutor pulled the plug rather than the judge.
Judge Thomas Barrett made his doubts about the case clear at a July 8 hearing about whether the case could proceed at all after the victim asserted his Fifth Amendment right to remain silent. It was a curious comment considering that criminal charges cannot be dropped, and a victim’s testimony cannot be stricken, if a victim refuses to testify about matters collateral to the underlying crime, and the victim did not take the Fifth about the crime itself.
But the DA doesn’t need to cite a reason. He can just drop charges because he feels like it.
Michael O’Keefe did try to come up with an excuse, of sorts. He said he dismissed the case because the victim took the Fifth, but he forgot to mention that the defense could just raise the issue during trial and let the jury think what it wants about the answer. In other words, the victim can still testify about the crime – everything else bears on credibility, but does not justify tanking the whole case.
O’Keefe said he couldn’t give the victim immunity, and force him to testify about whatever was supposedly protected by the Fifth Amendment, because immunity is only available in Superior Court, and although he could have sent the case to Superior Court, he declined.
Give O’Keefe credit for not blaming his decision on nonsense about the “missing” cellphone. It’s obviously a red herring, first reported by the alleged victim’s civil attorney, because the contents of the phone were obtained a long time ago, and nobody is claiming that the phone itself contains some sort of smoking gun.
Mind you, charges probably should never have been brought in this case, but some district attorneys like the publicity that comes with celebrity prosecutions. Others use the high-profile nature of a case to send a message about their commitment to certain types of offenses, and sex crimes have been under-prosecuted for so long, it’s not a bad idea to send strong messages these days.
But this case never really worked as a message-sender. The victim said Spacey had his hand on his genitals, without objection, for three minutes, while he took a video of the assault and sent it to his friend.
Nonconsent would have been hard to prove, but that is exactly why this case should have gone to trial. The public has a right to know whether the district attorney was wrong to file the charges in the first place.
Dismissing the case at this point leaves the public wondering all the worst things: Was this a money grab? Did the victim leverage the criminal justice system to extract extra cash from the civil suit? Did the victim and his family lie about the lost phone?
A good prosecutor would have conducted an investigation into the civil lawsuit before dropping this case. He would have sent subpoenas, and put the lawyers under oath, and he would have said, “I am not dismissing this case until I am satisfied that my office, the public’s money, and the criminal justice system were not used as leverage to jack up the value of a civil lawsuit.”
But O’Keefe simply dropped the case with a lame explanation, so we’re left with no answers about the most important questions. The only remedy is to vote O’Keefe out of office, but even that won’t get us the truth.