According to The NY Times, the French are once again upset with American justice. American justice, the argument goes, is flawed because elected prosecutors like to try cases in the media in order to curry favor with voters, and the media, having lost all proportion, fasten on the lurid, amplify every rumor, and preclude the serene and disinterested search for truth that is supposed to characterize the French system, with its juge d'instruction.
Let's reflect on these themes for a moment. Leave aside the fact that the very idea of a national emotion--"the French are upset with the US"--is a manufactured construct. Steven Erlanger's piece is well-informed and well-written. He talks to a handful of public figures, who supply him with usable quotes. He cites some of DSK's more outspoken and far from "serene and disinterested" defenders (Robert Badinter, BHL), whose critiques are then transfered by synecdoche to "France." What he does not do, however, is consider how American justice and the American media actually operate, nor does he compare these to French justice and the French media.
One critique that is often heard, and that is repeated in this story, is that the "adversarial" American system is inferior to the "inquisitorial" French system because the juge d'instruction sifts through the evidence with an open mind, seeking elements of the case that tend to exonerate as well as convict: il instruit à charge et à décharge, comme on dit. Indeed, Robert Badinter explicitly used the DSK case as justification for preserving the French system from Sarkozy's proposed reform (to replace the juge d'instruction by a juge de l'instruction less independent of the prosecution).
Does this criticism make any sense? Look at what happened in the DSK case. It was the prosecution, not the defense, that undermined the credibility of its own central witness by working in precisely the manner that the juge d'instruction is supposed to work. It not only examined the evidence but developed it, actively pursuing exculpatory elements by looking into the accuser's bank accounts, associates, and past. Indeed, DSK had the best lawyers that money can buy--another frequent critique of US justice, sometimes valid--but in this case it didn't matter, because the prosecution was interested in justice, not a conviction at all cost, and went about its job "serenely and disinterestedly."
What about the role of the media? I have already discussed (see my "Thoughts on Mediocracy" post) some of the perversions of the American media. But is it true that the avid press was fed by a prosecutor pandering to potential voters? Not that I can see. The press was pursuing its own investigation, knocking on doors, badgering neighbors, staking out DSK's high-rent jail. And lord knows I watched enough French reporters doing stand-ups in the Bronx, in front of the courthouse, and down in Tribeca to say with confidence that some of the sharks in the feeding frenzy spoke with distinctly French accents. So how can French observers claim with a straight face that the American media have perverted American justice?
American cable news is indeed driven by the sensational and lurid, as are American tabloids. There's nothing new about this, and it was already true in Tocqueville's day, pace BHL's belief that sensational trials are a recent development in America--or France. Some French cases also receive disproportionate coverage: Le Monde has a full-time court reporter who provides play-by-play inside-the-courtroom commentary on cases deemed worthy of public interest, and fait divers reporting is a staple of the French media. In the recent Bettencourt-Woerth affair, the whole prosecution was driven by the media, quite literally, with Médiapart breaking the story in the first place, a TV show pursuing the Bettencourt fortune to exotic climes, undercover investigations of Swiss banks, etc.
Yet for all the sensational coverage and trumpeting of false information by the press, the prosecutor's office under Cy Vance Jr. did its job (although some French media printed stories about Vance's alleged ties to Sarkozy, the CIA, etc.--was this any more justified than some of the Post's stories?). The serenity of justice was not perturbed by all the ruckus, even before the case reached the trial stage. The press can indeed be perverse, yet public scrutiny, warts and all, is essential if the misdeeds, or alleged misdeeds, of the mighty are to be pursued and, if need be, punished. The American prosecutor may (in some places, as in NYC) be elected, but that is not entirely without benefits: it makes him responsible, ultimately, to the people rather than to his hierarchical superiors, as the French procureur is. Yes, the juge d'instruction, le fameux "petit juge," enjoys some independence, but in order for him to get the case in the first place, the parquet must decide on the opportunité des poursuites, which can, in high-profile cases involving public officials, be a political decision.
Indeed, I think the whole comparison of the two systems is a red herring, an opportunity for cognoscenti to display a certain knowledge of formal structure without considering the actual operation of either system in particular cases, which cannot be done in the abstract. And when you look at the concrete particulars of the DSK case, it is hard to say that there was anything wrong with American justice (apart from the egregious "perp walk," a Giuliani innovation that unfortunately Cyrus Vance did not try to avoid). There was every reason to believe that DSK might have committed a crime, and every reason to pursue a vigorous investigation after ensuring his continued presence on American soil. It is still not clear that he didn't commit a crime. All we know at this point is that his accuser is unreliable, but we certainly don't know whether he did or did not attack her. We may never know, but that is not the fault of American justice. It's rather the virtue of a system that (at its best) tries as best its can to protect the rights of both accuser and accused. Just as the French system does when it is not tampered with.
There is no perfect justice on this earth, and I do not know whether DSK will receive the justice he deserves, but I do think that New York state has delivered to him the best justice he can expect to receive given that he was reckless enough, apparently, to engage in a sexual act with a woman he did not know. Had he not done that, we would not be having this discussion. And since he did do it, I think his recklessness raises serious questions about his fitness to be president, even if the charges against him are dismissed. Indeed, his reputation has been tarnished by the incident in New York, but unlike Badinter and BHL, I do not think it unfair to judge a politician by what we come to learn of his character, even if the way in which we come to learn it does not meet the exigent standards of the criminal justice system.
UPDATE: Alan Dershowitz is more critical of the prosecution.