Opinion

Guilty, beyond a reasonable doubt?

Jema Khan

Datuk Jema Khan is a former Sabah Umno Youth leader. He is now a businessman pushing the Agenda Liberal Melayu in Facebook .

AUG 29 — The arrest of IMF chief Dominique Strauss-Kahn (DSK) for the attempted rape of a maid in New York a few months ago made headlines around the world. The maid, who we now know as Nafissatou Diallo, worked at the Sofitel hotel in New York where she claimed that DSK had tried to rape her in his own room. The prosecution at DSK’s arraignment claimed that they had irrefutable forensic evidence that would likely convict DSK and as such the prosecution wanted the court to consider DSK a flight risk and thus not grant him bail. When DSK did eventually get bail (US$1 million (RM3 million) in cash put up by his wife), he was forced to wear an ankle monitoring device to ensure he did not abscond. After DSK’s New York arrest a French writer also claimed that DSK had sexually assaulted her in 2002.

Diallo initially drew a lot of public sympathy especially from “the maids in Manhattan” who assembled outside the courthouse to support her. However subsequent events called into question the reliability of Diallo’s testimony. She had lied before about being gang-raped in her native Guinea in her asylum application in the US. She also had associations with known criminals in New York. The alleged incident took place within nine minutes. DSK is 62 years old and 5ft 7in tall whereas she is 32 years old and 5ft 10in tall. She should have been physically able to fight off any unwanted sexual encounter or at least scream for help if it was not consensual.

The prosecution has now dropped its case in New York against DSK because they don’t think a jury will believe Diallo’s account of what happened to her. Obviously, the so-called irrefutable forensic evidence that no outsider has seen would thus not be able to confirm, on its own, that the incident was non-consensual. Though DSK may be a free man, his reputation is in tatters. It has been a great fall for a man who could easily have been President of France. If it was a political fix, his opponents who dreamt it up have done a great job. The allegations and innuendos will follow him for a long time to come. Though DSK is not guilty of this particular assault, politically he is already seriously damaged goods.

Compare this to the sodomy case of Datuk Seri Anwar Ibrahim (DSAI). I would seriously doubt that the prosecution would ever drop its case even if there was little evidence against him. DSAI will not likely be allowed the same “burden of proof threshold” against him as DSK. The prosecution appears to want to win at all costs. It appears the burden of proof has shifted to DSAI to the extent that he may be found guilty unless he is able to prove his “innocence beyond any doubt”.

If “reasonable doubt” were to come into play in DSAI’s case then the DNA expert witnesses called by the defence certainly have called into question the DNA evidence proffered by the prosecution. The samples taken from Saiful (the person DSAI allegedly sodomised) could not be in such pristine condition if they had been sitting for 56 hours in his rear end. In fact, according to the defence’s expert witnesses, they would normally have seriously degraded after 36 hours in anyone’s rear end, to the extent that it would make the sample of little value.

Of course, the prosecution’s contention is that a usable sample of semen DNA had been obtained once from someone’s rear in the 1980s under laboratory conditions, after having been there for 65 hours. The defence’s expert witnesses have never had this happen to them in their long experience nor have they read of any similar outcome other than that one case proffered by the prosecution. Thus the assertion by the defence is that it can happen, but it is rare and that most of the time, the sample is useless after sitting more than 36 hours in someone’s rear end.

The defence expert witnesses also called into question the laboratory practices and the way that samples were handled in the case. They questioned the chain of custody of the samples as well as the mislabelling of the samples with incorrect dates. Of course, the prosecution will soon try to discredit the defence’s expert witnesses and it remains to be seen if they are successful.

However my inquisitive nature got the better of me and I asked my “not-so-expert” children if they could try to explain all this to me in simple terms. My son just graduated in human genetics from UCL and my second daughter graduated from Imperial College last year in biomedical sciences. Though they did try to explain the science to me, I must say that they lost me after explaining the difference between a haploid cell (sperm and ovum) and diploid cell (all the other cells such as skin and hair). Thus I took another route to try to understand by asking certain specific questions.

How come you can get DNA from sperm stains on clothes which may be months old but not from someone’s rear end after a few days? The answer is basically that the environments are different and the sample in someone’s rear end will likely degrade much faster than if left out in the open, to the extent that to get a usable DNA sample is not likely.

Is it possible that a sperm sample that has been in someone’s rear end for 56 hours to be “pristine” condition? This is highly unlikely as the sample will likely have been degraded after that time. That is not to say that you can’t get usable DNA from a degraded sample because it is possible to get DNA even from “denatured” sample (a sample that has changed its molecular structure). It is just that the sample will not likely be “pristine”.

Thus I would say from a layman’s point of view that the defence’s experts have certainly created “reasonable doubt” as to the veracity of the prosecution’s DNA evidence thus far. The trial still has some way to go and there would be other issues cropping up to determine guilt or innocence.

However, because of the perceived political nature of the prosecution, at the end of the day when it comes to DSAI, in the court of public opinion, if he is to be found guilty, it almost has to be beyond any doubt at all. That standard is of course too high and would be an almost impossible feat for the prosecution to achieve.

What I would expect though is that the burden of proof still lies with the prosecution. To discharge that burden they really have to bring a case with sufficient evidence, where any reasonable man would find DSAI guilty beyond a reasonable doubt, if a guilty verdict has any chance to be accepted by the public. If they can’t, they should drop the case in the spirit of Hari Raya and all sides should seek and give forgiveness and move on in life.

* The views expressed here are the personal opinion of the columnist.

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