Wednesday, August 10, 2011

If DSK Were Tried in Paris ...

Now that Ms. Diallo's has filed her civil suit in the Bronx, Le Figaro has an interesting comparison of French and US justice. In France, the civil and criminal cases would be inseparable. Assuming conviction on the criminal charges by a majority of at least 8 votes among the 9 jurors and 3 judges hearing the case, civil damages would then be decided by the three judges alone. In France, damages in a rape case would be unlikely to exceed 15,000 euros, whereas in the US the plaintiff might expect $20 million or more.


MCG said...

Excellent piece. Juries in the Bronx, incidentally, are known to make the highest awards of money damages in the five boroughs of New York City.

FrédéricLN said...

" In France, the civil and criminal cases would be inseparable" : yes, our media often find very difficult to explain how, in America, one person mays be declared innocent by criminal justice and innocent in the civil case, or the opposite. Well, I didn't understand why it's so. It deeply hurts our sense that the truth is one… even if there are wrongful convictions!

BTW, the Iranian movie "Nader and Simin, A Separation", that met great success in France, may be educative under this regard.

Cincinna said...

@ FrédéricLN 
  The difficulty of understanding is because it is a question of two completely different systems of jurisprudence based on fundamentally different principles. The French system based on the Napoleonic code, and the American based on English Common Law. 
  In a criminal trial in the US, one is tried in open court and judged by a jury of one's peers, (Thank God for the VI Amendment) and is found "guilty" or "not guilty" - NOT INNOCENT,  by a unanimous verdict,  with the standard being "guilt beyond a reasonable doubt"
Amendment VI
[Civil rights in trials for crimes enumerated.]

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense"

 In Civil cases, it is not a question of guilt or innocence, or "truth" but a question of liability, which means "Is it more likely than not that the defendant was responsible" by the standard of "preponderance of the evidence" 
  It is not the role of the jury in Civil or Criminal cases to determine  "truth", but to  determine, by the standard, if the defendant is guilty or not guilty.  
  The plaintiff in the Criminal case is the State, the remedy if defendant is found guilty is punishment-  imprisonment, fines, or death, depending on the nature and severity of the crime and the laws of the individual State. 
  The plaintiff in a Civil case is an individual or group of individuals seeking redress of grievances, usually in the form of monetary compensation for physical and/or emotional damages suffered. 
  The protection of the rights of the accused guaranteed  by Amendment VI- the right to a "speedy and public trial, by an impartial jury" are IMO what sets the American system if jurisprudence above all others. Of course there can be errors, as we are all fallible human beings, but the chances are far less likely. 

Cincinna said...

You are right about the Bronx as it pertains to Civil Rights cases.
Brooklyn is also known fir high damage awards- the judges are much more plaintiff friendly than the Bronx.
Ms Diallo is a resident of the Bronx, so she can bring her case to court in that county.
Interestingly, some of the highest awards ever in non civil rights cases, product liability, class action suits etc are in NY County (Manhattan).
My guess is that DSK will try and the Civil case out of the Bronx into Federal Court, claiming he is not a resident if NY, but of DC. Diallo's lawyers have anticipated that by stating that DSK is a resident if NY.
There can be no change of venue for any reason. The
CPLR does not provide for it in Civil matters.

FrédéricLN said...

@ Cincinna : "Brooklyn is also known fir high damage awards- the judges are much more plaintiff friendly than the Bronx."

You express perfectly well how far your system is "completely different" and "based on fundamentally different principles". I wonder how the French society could accept such a situation, which we would consider as fundamentally unfair (even if such situations do exist in France! But they are denounced and deemed scandalous). If we keep and appreciate one of Napoleon legacies, it's clearly the legislation.

Not that I, as a person, would be so affirmative or so proud of our French system. I just highlight that, under French usual standards, the justice is in the US is, among all aspects of the American way, the one we appreciate least.

Even valuable ideas, such as class actions, cannot find their way in France, because opponents (possibly sponsored by big companies) just have to say "you mean, class actions as exist in the United States?" and every support vanishes.

MCG said...

Cincinna writes: "There can be no change of venue for any reason. The CPLR does not provide for it in Civil matters."

That is incorrect. I refer the reader to the Civil Practice Law and Rules (CPLR) sections 510 and 511. Section 510 is titled "Grounds for change of place of trial, and Section 511 is titled "Change of place of trial."

Mitch Guthman said...

Just to clarify: It's been a lot of years since I took federal jurisdiction but I believe this case is unquestionably removable to federal court on the basis of diversity jurisdiction under 28 U.S.C.§1332. (The actual rules for removal are in 28 U.S.C. §1441, et seq). There might be a technical question about how DSK would be treated for diversity purposes since there are obviously certain peculiarities about the immigration status of employee’s of quasi-governmental organizations. Nevertheless, complete diversity of citizenship exists because a foreign national who has been granted permanent resident status is treated as a citizen of the state where he is domiciled (28 U.S.C. §1441). Nafissatou Diallo is unquestionably domiciled in New York. Depending on his immigration status, DSK is either a French national or a domiciliary of Washington, D.C. In any event, it doesn’t matter because DSK isn't a New Yorker and so there is complete diversity of citizenship for jurisdictional purposes whether he is considered an alien or a resident of the District of Columbia. You don't have to be Arthur Miller to figure out that this case is removable.

Federal law also tells us roughly when we will know whether DSK is going flee the Bronx for the relative safety of federal court. If memory serves, he has only 30 days from receiving the complaint to file for removal under 28 U.S.C. §1446(b).

In my view, that also sets something of a deadline for settlement negotiations because while a state court judge might (with Vance’s blessings) allow the defendant in a criminal case to pay money to the complaining witness in return for an implicit promise that the case against him will be dropped, most federal judges would be highly unlikely to involve themselves in such an unseemly business.

Bottom line: DSK can move the civil suit to federal court if he wants.

Cincinna said...

@ FrédéricLN
Chaqu'un à son goût!
What is important is that Americans approve of our judicial system and believe it is the fairest, most equitable and open system that exists. We don't give a rip if the French or Europeans approve. Our Consritution is tried and true over 240 years.
I would take my chances with a speedy trial with due process, in front of a jury picked out of the phone book at random, in open court, with all the protections guaranteed by the US Constitution, than be detained without due
process for an indefinite period of time and have my fate decided in the hands of "experts" who are operate in secret and are not even lawyers.
The adversarial system suits us, and we will keep it.
BTW most French, anecdotally and in polls know that the case against DSK, were it to occur in France, would be buried and never see the light of day. He would get off Scot-free and never have to answer the charges against
That is not equal justice under the law.

Cincinna said...

I agree that DSK's lawyers will try to have the Civil case transferred to Federal Court under the provision under ARTICLE III of the US Constition regarding disputes between citizens of different States.
It is unclear as to whether DSK is a resident of DC, which is not even a State. Diallo's lawyers claim that DSK is domiciled in NY (he and Sinclair own an apartment in NY)
There will also be the question of availability of witnesses for trial ... they are all in NY.
Pass the popcorn!

Cincinna said...

@ FrédéricLN
     Our system of justice is designed to give maximum opportunity for the accused to defend himself and much leeway & all rights are accorded  to the accused in a Criminal case or the plaintiff in a Civil case. 
     Since it is the sole responsibility of the prosecution to prove guilt or liability, the defendant or plaintiff is accorded full rights to defend himself under the Constitution.
     Since most major trials are televised, an extension of the guarantee of a public trial , watch some trials for yourself. Also watch the original Law and Order with Jerry Orbach and Sam Waterston. The earlier episodes with Michael Moriarty as ADA Ben Stone are the best. It is a very accurate depiction of how the criminal justice system works in NY from the NYPD investigative stage to the jury trial and appeal. 
   If you are interested in movies about the legal/ jury system, there are many.
  Full disclosure: I have worked as a legal consultant on Law and Order and many legal movies.  
Here is the ABA list of top legal films:
ABA (American Bar Association) LIST BEST LEGAL MOVIES:

To Kill A Mockingbird (1962)

12 Angry Men (1957)

My Cousin Vinny (1992)

Anatomy of a Murder (1959)

Inherit the Wind (1960)

Witness for the Prosecution (1957

Philadelphia (1993)

The Verdict (1982)

Presumed Innocent (1990)

Judgement at Nuremberg (1961)

A Man for All Seasons (1966)

A Few Good Men (1992)

Kramer vs. Kramer (1979)

The Paper Chase (1973)

Reversal of Fortune (1990)

Compulsion (1959)

And Justice for All (1979)

Young Mr. Lincoln (1939

Amistad (1997)

Miracle on 34th Street (1947)


Cincinna said...

It is absurd to propose that DSK could not get an impartial trial in Bronx County. The Bronx is not what is portrayed on TV and foreign media.
The Bronx is racially and ethnically diverse, which BTW, is only relevant in a Civil Rights action, not a tort action.
This would go nowhere in front of a judge. White people are sued by people if color every day in the Bronx. Sometimes they win, sometimes they lose.
IIRC, CPLR 510 also takes into consideration availability of witnesses, which would benefit Ms Diallo's case in NY , not DSK's request for removal from NY.

MCG said...

I am puzzled by why Cincinna's last post is "@MCG," since it is unrelated to anything I ever said or would say. I never said the things it is suggested that I said. This is unacceptable.

Cincinna said...

Hey MCG Unnaceptable? Lighten up!
There have been a few posts using CPLR 510 to justify a change of venue in the DSK case. If I got them mixed up, I apologize for the error.
CPLR 510 is not IMHO relevant to this case as you stated it is. DSK is domiciled in NY according to the Civil complaint, and DC is not a State.
I think it would help other readers and posters if we stuck to the substance, and not get lost in the arcane legalese of the case.

MCG said...

@ Cincinna. CPLR section 510 is a New York code section governing change of venue in New York courts. The CPLR is not relevant to federal jurisdiction, which is what you are talking about.

Cincinna said...

I am fully aware of the NY CPLR. I just don't follow as to how this relates to the DSK case.
I'm sure that DSK's lawyers will try to get the Civil case out of the Bronx claiming Ms Diallo and DSK are not citizens of the same State. Even if they succeed, the trial would still be in NY- Eastern District Federal Court. True, Judges are much stricter, and discovery more extensive, but the Jury pool would still be NYers. And NYers have a soft spot for the underdog. As strange as it may seem to many French & other Europeans, NYers consider Ms Diallo to be the American victim of the foreigner, DSK. not American, and not a NYer.
What do you think will actually happen? I guess we'll know more after the August 23 hearing in the Criminal case.
In the meantime, we're out on our ranch in Texas for a few weeks, where almost nobody has ever heard of DSK. The main topic of conversation down here is the heat (107 this week) Governor Rick Perry running for President (mixed reviews, positive for Texas high growth rate , mostly negative for Perry as POTUS material, and of course, Sarah Palin (mostly positive), and lots if noise as usual from the Ron Paul supporters.
Are they following all this in France?