Monday, July 4, 2011

Tristane Banon Tells Her Story

Here. She's got her story down, as well she should, having told it now several times and fictionalized it in a novel, which she says is truer than the public accounts she gave in her own name. Is it true? I don't see how it can be proved. So what does she hope to achieve? Justice? Revenge? An end to DSK's political career? Money? Notoriety? Is it victim-blaming to ask these questions? Probably, but they need to be asked.

New York Magazine Article

New York Magazine asked me to sum up French DSK coverage. Regular blog readers won't learn anything new, but I'm pleased to share the limelight with Frank Rich, who has moved to NY Mag from The Times.

Garapon on American vs. French Justice

Arun Kapil reproduces a text by Antoine Garapon comparing US and French justice. Quite insightful, although I think, as I said in my earlier post on this subject, still a tad formalistic in its analysis. The basic description is right, but particular cases have a way of bending the neat distinctions.

Kapil also reproduces two Le Monde op-eds from a while back. Worth reading. James Whitman, whose work I respect, tends at times to a somewhat reductionist view based on the contrast between two types of democratic leveling, from the bottom up in France, from the top down in the US. In the DSK, this leads him to suspect a systematic humiliation of a powerful and privileged man. Yes and no. I do think that the egalitarian impulse is a powerful and laudable ingredient of American justice, but here this is only part of the story. Rape is a special type of crime, and the way it is dealt with in the US has less to do with general principles of egalitarianism than with particularly sensitivities honed over the past three decades by the women's movement. Alleged victims were not always treated so deferentially, despite egalitarian traditions; quite the contrary. Whitman's culturalist argument has a tendency to become ahistorical. Still, his book contrasting criminal punishment in the US and France is very much worth reading.

Sawicki on the PS

In L'Humanité:

Les trois candidats principaux, Ségolène Royal, François Hollande et Martine Aubry, se distinguent relativement peu par des positions idéologiques tranchées, même s’il existe des sensibilités différentes et si tous ne mettent pas l’accent sur les mêmes thèmes. Ségolène Royal essaye ainsi d’apparaître plus à l’écoute des classes populaires en se rendant dans des entreprises ou en évoquant les difficultés à joindre les deux bouts. Fondamentalement, on ne peut parler de différences idéologiques. Arnaud Montebourg et Manuel Valls se démarquent un peu de cette orientation socialiste traditionnelle qui vise à concilier économie de marché et redistribution sociale. Arnaud Montebourg joue la carte de la démondialisation en insistant sur le protectionnisme européen ; quant à Manuel Valls, il est dans une position droitière affirmée, n’hésitant pas à considérer que l’identité nationale, la sécurité, la lutte contre l’immigration clandestine doivent être portées haut par la gauche. Mais ces deux candidats affichant clairement des lignes politiques opposées ne parviennent pas à décoller. Du reste, la campagne de la primaire sera assez courte, puisque l’essentiel des débats aura lieu en septembre. Par ailleurs, le PS reste obsédé par l’idée d’éviter tout déchirement public. Je ne pense donc pas que la primaire soit l’occasion d’un quelconque affrontement idéologique de grande ampleur. On avait pu observer en 2006, avec les adhérents à 20 euros et la primaire semi-ouverte qui a abouti à la désignation de Ségolène Royal, qu’il s’agissait d’un moment où les sondages, tels que relayés par les médias, jouent un rôle très important et ont tendance à être l’expression d’une politique d’image ou de communication des candidats plutôt que d’une confrontation d’idées très tranchées.
True, alas.

DSK Counters with a Slander Suit against Banon

Here. The alleged facts are "imaginary," say DSK's lawyers. Dénonciation calomnieuse: this was the issue in the European Court of Human Rights decision discussed here.

Ce débat s’inscrit naturellement dans le cadre de l’affaire Strauss-Kahn, et plus encore à la suite de la mise en cause de la crédibilité de la plaignante. On peut également le rapprocher d’un événement bien plus discret, mais néanmoins éclairant : la condamnation de la France par la Cour européenne des droits de l’homme le 30 juin 20111. Il s’agissait d’une jeune femme condamnée pour dénonciation calomnieuse sur le fondement de l’ancien article 226-10 du Code pénal. Elle avait été poursuivie sur ce chef par un individu qu’elle avait accusé de viol, mais qui avait bénéficié d’un non lieu, faute de charges suffisantes.

Banon Will Bring Charges

Tristane Banon will file attempted rape charges against DSK. Now the French will have an opportunity to see how their justice system handles such allegations against a high-profile figure. Good luck at sticking to the facts, not jumping to conclusions, avoiding leaks from attorneys and manipulation by press flacks, and at refraining from publishing damaging but unverified information about the accuser.

Two French Jurists Discuss the Difficulty of Proof in Rape Cases

Here. It's a long but useful debate.

DSK Lawyers Say He Did Not Pay for Sex

Here. They deny yesterday's Post story.

Some French Eyes See Differently

Not all the French think American justice erred: see, for example, Alain Lipietz's quite reasonable analysis of where the case now stands.

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.