Monday, July 4, 2011

American Justice in French Eyes

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.


Scaramanga said...

There's a general problem with the use of "go-to guys" when it comes to "explaining" one country to another.
Dominique Moïsi is one of these go-to guys (the American correspondent I used to work for made quite an extensive use of him). The man is ubiquitous, he writes columns for the NYT, the Guardian, etc. He may be competent, well-informed, etc. but he obviously can't speak for the French people in general. He belongs to the elite, and is probably biased when it comes to DSK.
The problem with BHL is slightly different: he's an effing clown, someone with zero intellectual credibility but a lot of clout. As a French citizen, I cringe each time I see him speak on behalf of France to a foreign media.

thisnameisinuse said...

I really don't know enough about the two systems to comment, but there are plenty of people outside France who are considering the case to have been ineptly handled, e.g.

And I have doubts that 'the prosecution was interested in justice, not a conviction at all cost, and went about its job "serenely and disinterestedly."'

From the first link above:

'That said, Vance's team went to the extreme of banishing all doubt of Strauss-Kahn's guilt from the get-go.

Remember, here is how Assistant DA John McConnell argued for confining Strauss-Kahn before trial: "The defendant restrained a hotel employee inside of his room. He sexually assaulted her and attempted to forcibly rape her."

No doubt about it.

And: "When he was unsuccessful, he forced her to perform oral sex on him."

No doubt about it.

Finally, McConnell went way over the top in raising the possibility that Strauss-Kahn had committed a similar assault abroad.'

From the second link:

'Gerald Shargel, a fundraiser for his election campaign, told The New York Times: "What's most curious is hearing the prosecutors saying early on that they had a very strong case. Obviously, they hadn't looked very hard. I have enormous respect for Cy as a prosecutor, but this is like a series of bad dreams."'

From the third:

'The profile of the evil sexual aggressor trying to flee the crime scene was constructed thanks to the NYPD and prosecutor's office. They briefed journalists on and off the record about DSK having been a "man in a hurry" who left his mobile phone behind (ie, guilty).'

I don't think I agree with everything in those articles (especially the third) and I'm not mentioning them as some sort of authority but I think they show that many people feel that there is a case against the prosecution and suggest that there's good reason for this.

Back in a minute.

Kirk said...

Excellent post.

Regarding the "adversarial" system in the US, if anything, that's what made things happen the way they did. Prosecutors know how much the defense will come up with, so they have to find the same information.

As for the French and mediatization of trials, they do it to an even greater extent at times. Remember de Villepin harranguing Sarkozy from in front of the courtroom door? He was even allowed to make a statement inside a courthouse, something that I think is not legal in the US. You are constantly seeing attorneys in press conferences on the news here in France when there are big trials.

Finally, if there were marks of violence and semen on the victim, then my money is on a plea-bargain, which lets him avoid jail time, but still convicts him of something. Even in the victim is not fully above board, there's a chance that the evidence alone is enough to convict for something, rather than dropping the charges entirely.

thisnameisinuse said...

My previous post has disappeared for the time being, but I'll continue briefly.

'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.'

My first reaction to this came after reading several internet comments elsewhere along the lines of 'he had sex with her; he deserves all he gets' which I find appalling. I flinched a little but I think I'm reading more into it than is there. But too many people seem to be using the same sort of logic which says 'she went to his room; she deserves all she gets'. Granted, there are things you can do to protect yourself which you shouldn't have to do, but unfortunately people move from 'X was a little reckless' to 'X was asking for it'. The idea that having sex with a stranger justly leaves you open to accusations of rape is, or should be, horrifying.

Sorry, I'm going off at a bit of a tangent but I find this whole case, whatever happened, most disturbing.

Arthur Goldhammer said...

I'm sorry, but it is a fact of life that prostitution is often linked to crime. What is more, DSK reportedly (see Le Monde yesterday) believed that people, perhaps the Russians, were after him and that he was vulnerable to a sex scandal because of his reputation. He was so worried that he asked visitors to remove the batteries from their cell phones. A man this concerned about being targeted or set up should not be having sex in hotels with unknown women. The "honey trap" is a notorious tool of black bag artistry. Surely DSK was aware of this.

thisnameisinuse said...

Ah, I probably agree with you on all of that.

thisnameisinuse said...

I think my views are a little more along the lines of those of Alan Dershowitz. In this case.

p.s. could you look for my first comment? It was stimulating and provocative.

Alex Price said...

It’s perfectly valid in an article on attitudes not to investigate or try to evaluate whether those attitudes are reasonable.

The last paragraph of Erlanger’s NYT article strikes me as dead wrong:

Mr. Moïsi thinks that Mr. Strauss-Kahn, whose next hearing is set for July 18, may end up politically ahead. The Socialist Party wants to win at all costs, he said, and they may decide that Mr. Strauss-Kahn has a new cachet. “If D.S.K. returns triumphantly as a victim of American justice that may change everything,” he said.

“A new cachet”?? This statement’s prominent location at the end of the article – the last word, literally – makes it seem that the French are so virulently anti-American that they will embrace DSK just because he has supposedly been victimized by the Americans. This is nonsense. Moïsi surely knows that his opinion is contrary to the consensus opinion in France, which is that DSK emerges weakened, probably fatally, from this affair, even if the charges against him are dropped, but Erlanger doesn’t provide this context and leaves the reader with the opposite impression.

Dershowitz’s judgment that “the prosecutor messed up in speaking to the press, publically vouching for the truth of the woman’s account and for her character” strikes me as indisputable. For that reason and others, I don’t buy Art’s argument 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.” As thisnameinuse pointed out, this argument simply amounts to blaming the victim.

François said...

Yes I'm inclined to be impressed by the integrity of Cyrus Vance's office in this case. Compare for instance his behavior with that of Harry Conick of New Orleans.

On the other hand: do you think that they would have turned over this info with such alacrity if the accused were poor with no resources in a similarly high-profile case? That would have been the true test of integrity.

Alex Price said...

@ François:

Exactly. The DA had no choice but to investigate the victim, because he knew the extremely well-heeled defense would. It’s absurd to imagine that this case is in some sense representative or that money had nothing to do with the prosecution’s discovery and rendering of exculpatory evidence. It had everything to do with it.