Guilty Until Proven Guilty
Let us imagine a simple, simplified even, hypothesis-- not original by any means, in fact, something anyone who's ever watched TV shows or films involving legal trials can recognize immediately.
A stereotypical & serial rapist is finally caught by the police. The officers in charge of the investigation, however, succumb to the temptation of taking a rather gluttonous bite out of the fruit of the poisoned tree (oh the apple, that most vilified fleshy product), resulting in failure to properly keep to the legality with which evidence is supposed to be acquired. Nevertheless, this fact only becomes known during the trial, by which time the defendant's guilt has been amply established beyond reasonable doubt. A mistrial ensues, to the horror of all, and the serial rapist has to be let go, according to the rule of law.
He is not less guilty because of this, he is only not guilty in the eyes of the law.
Let us imagine another hypothesis.
This same serial rapist is charged with a rape, but one he didn't commit. This time, however, the police manages to get evidence "by the book" that he is a rapist, but not specifically about the rape for which he is on trial, so that most of the evidence presented concerning said rape is circumstantial. He is found guilty and sent to jail.
He is not less guilty because of this, he is only not guilty of this rape in particular.
The second hypothesis is, according to me, representative of the case involving Dominique Strauss-Kahn, (now) ex-president of the IMF. While it's true he took office only two years ago and can therefore not be said to be directly responsible for the actions this anti-democratic institution has carried out worldwide in the past 30 or so years, he is still guilty of rape.
Not, of course, of raping the chambermaid in that hotel in NYC, though he might turn out to be guilty of that as well.
No. He is a serial rapist, and the aggravating factor is his conscious effort to overcome his knowledge and political persuasion (DSK has been and still is a card-carrying member of the Socialist Party in France, which tells us how much that term means anymore) in favour of his true class affiliation. Because how can a person who calls himself a leftist want to be at the head of an institution such as the IMF?
I have heard the argument according to which he took the position many Catholics take: change the institution from the inside, without leaving it. But if one isn't in agreement with what forms the institution's very core, its raison d'être, how can one choose to join it? He wasn't born into the IMF. He chose to be a candidate for this position after its guilt had been amply demonstrated beyond reasonable doubt throughout the world, and even by those who claim to be partisans of the political and economic ideology this most loathsome of institutions imposes in a cruel and dogmatic way on peoples.
But all this fills me with hope. He is probably going to be found guilty: I can't imagine the NYPD would arrest DSK without significant direct evidence, especially forensic. This still does not mean he is guilty of raping this woman-- we know even forensic evidence can be manufactured or gotten in less than transparent ways. It can also be interpreted as nothing but evidence they had consensual sex.
His probable innocence on this particular charge notwithstanding, I can't honestly say I'll be terribly scandalized if he's found guilty and ends up spending the next 60yrs rotting in a privatized USican jail.
I can't even say I'd be shocked if this chambermaid from Guinea has been paid to falsely accuse him. Appalling though this would be, it'd also be the summit of poetic justice. Third world woman destroys life of IMF president would be the headline I'd write in that case.
The IMF, the institution which has pillaged and raped, indirectly, millions of pockets, children, women, fathers, old people who have worked all their lives only to see their pensions reduced when they needed it, so a couple dozen useless parasites could see their bloodstained numbered bank accounts in Switzerland grow as fat as their waistband, fed on artisan chocolates washed down with Cristal as they are, while Haitians pay to eat mud cookies. PAY. Thirty cents of whatever MickeyMouse unit of their valueless money for a mud cookie. Thank you, IMF. Thank you DSKum. Maybe not a common, literal rapist, but a mass rapist.
I never thought one day I would say "if this man is innocent of this crime, I still want to see him go to jail." It just isn't how I think and it isn't right, it isn't acceptable. I'm glad I'm not going to be a member of the jury which will decide whether he's guilty or not; I'd throw ethics out the window.
*****
Still on this topic generally speaking but on another register: I am properly scandalized by what I heard on French TV this week. I heard a journalist praise the American judiciary for giving the plaintiff's claim the same weight as it would any other plaintiff, independent of the status of the defendant. I agree with her on this one, it is indeed one of the reasons I admire the US (plea-bargain aside, naturally--).
Then, this same journalist, much to my unilateral, impotent, and childish stupefaction, abhorred the fact her compatriot ended up having to spend nights in a common cell, where everyone else has to spend time if they're accused and not bailed out. And I sat in front of the screen, thinking "how dare you evoke the Republican (as opposed to monarchical) slogan Liberté Égalité Fraternité then make this asinine, passé, and faux-aristocratic comment?" I thought I was in Brazil. None of the people in the discussion pointed out her brown incoherence or her contempt for equality before the law. Sometimes I can understand why some ppl take drugs.
12 comments:
Fact Pattern #1: In American jurisprudence, you would only lose the evidence so tainted by the doctrine of 'fruit of the poisonous tree'. If by clear and convincing evidence, independent of the taint and the act that precipitated it, and that evidence proves guilt beyond a reasonable doubt, then in theory, the jury would return a guilty verdict. Simply because some piece of evidence was obtained in an inappropriate manner doesn't doom the entire case. Having said that, to support the outcome of the 1st fact pattern, what typically transpires is, the clear and convincing evidence is obtained and hence excluded by the 'fruit' doctrine. Absent a preponderance of other evidence, there is no longer probable cause to support the charge with which the defendant finds himself accused, the court has little choice.
Fact pattern #2: Even evidence obtained by the rules of criminal procedure and rules of evidence can sometimes be misinterpreted. I can't imagine a case where circumstantial evidence would be so overwhelming as to prove beyond a reasonable doubt that a particular person committed a particular offense, with no direct or eyewitness evidence, absent confession.
American jurisprudence is structured in the manner it is because of the excesses of English common law and it's application in the early founding of this country. People have a hard time it seems grasping this most elemental concept of the US. That it is a common premise in our system that it is better to allow a guilty person to go free than an innocent person to be convicted. Hence the rights and safeguards have purpose. Imperfect as it is, it still isn't a bad system. A presumption of innocence at the start simply means that the State must prove, beyond a reasonable doubt, not all doubt, that a particular person committed a particular offense. That presumption is certainly rebuttable. But it also compels Government to act by the rules, fairly apply the rules, and insure those rules are applicable to all who fall under their jurisdiction.
In the instance of the arrest of Kahn, probable cause is all that is necessary to effect the arrest of someone who is believed to have committed, is committing, or is about to commit a criminal offense in this country. On a scale of 1-10, probable cause comes in somewhere around the 3-4 mark. Probable Cause defined: "facts and/or circumstances that would cause a reasonable person to believe that a particular person committed a particular offense." In this instance, the police had a report of a violent crime (rape is a violent crime in the US) and taken at face value, since crimes reported are presumed truthful unless it's obvious they are not at onset. Thus cause to arrest. Typically it takes more, but the circumstances surrounding the case, international figure, trying to exit the country and the jurisdiction of the US no doubt accelerated his arrest. Since it's not a common practice to arrest under such circumstances without substantial initial investigation, simply due to the severity of the offense and you don't want to overlook details. As far as guilt or innocence, I have no opinion. There aren't enough facts present to form an valid opinion or for me to comment lucidly. So in that regard, the jury is still out.
I can't speak about the existence of jails or cells in the Michelin guide. I certainly know of none, at least, in this country, unless it's a Federal facility. If he is convicted and Attica is still open in the State of New York, I'm thinking he will find it far below his usual accomodations. All should be equal under law, but even in the US at some levels, you can get all the justice you can afford.
Fact Pattern #1: Doctrine of Poisonous Tree only taints that evidence so obtained as a result of whatever act that so deemed the evidence tainted and inadmissible. If there exists additional evidence that is clear and convincing that could cause a jury to render a verdict beyond a reasonable doubt, then in theory, that would generate a final outcome. However what usually happens is that the evidence tainted is typically so crucial to the case that the rebuttable presumption of innocence cannot be overcome without that evidentiary item (s), further investigation, or confession. Even then, that might not be enough. Judges have erroneously excluded evidence not related to the taint, but having come afterwards, unassociated with the taint, have been automatically excluded. This has been found to be overly burdensome and not in keeping with the doctrine of fruit of the poisonous tree itself.
Fact Pattern #2: Innocence is a presumption in American jurisprudence. It is a rebuttable presumption. Rights and procedures exist for the protection of those accused as a safeguard to prevent the innocent from being wrongly convicted and punished. Those safeguards flow from the excesses of British Colonial practices and how they exercised carte blanche the dicta of the King on the Colonials. The theory is, it is better to allow a guilty person to go free than to send an innocent person to prison. It is, as with any other, an imperfect system. Mistakes are made as with anything that involves human interaction. I can’t fathom a case in which circumstantial evidence alone would be so overwhelming to convict. Circumstances other than those facts from the particular offense, in my mind, are not indicia of guilt or innocence for the case at bar. To do otherwise would be so vile that I can’t comprehend it even occurring. In public opinion, anything is open to speculation. The only thing that will enter into the record for Kahn is prior criminal convictions during the sentencing phase of his trial, should it ever get to that point. I can’t imagine the judge allowing testimony from other ‘victims’ that has no direct connection to the case presently in the forefront.
His arrest. It takes probable cause to deprive one of liberty. Probable Cause defined: “Facts and /or circumstances that would cause a reasonable person to believe that a particular person committed a particular offense.” On a scale from 1-10, cause exists around 3-4. But then, we aren’t talking conviction. A report of a rape, coupled with a foreign national trying to leave the country…equates to rapid arrest. A violent felony, and rape is a violent felony in this country means things are taken a bit more seriously. That means that victims reporting crimes are taken at their word unless the facts deem otherwise at inception. Investigation may disprove the assertion at a later time, but at the time of the initial report, it is taken at face value; it occurred. Often, there is a preliminary investigation to substantiate the facts alleged, but time in this matter dictated rapid action before he left US soil. Otherwise, I’d say the chances would be slim having him extradited back. Manufactured case? I don’t see how. There are too many people with their fingers in the pie to make this a viable cover-up or persecution of. I’m not disavowing the potential, only that it would take a lot of people being quiet and people aren’t prone to being so, not when they have juicy details the National Enquirer would pay nicely for. Insofar as the victim fabricating the story, DNA analysis via semen is the link in this chain. I think we can all agree how semen is produced and that it isn’t a generally available piece of evidence. Her story, under interrogation, can be either confirmed or disputed. Details missing or varied are warnings that should be expounded upon.
So I find myself defending something I believe in, the criminal justice system. As much as I revile it through its travesties at times, I still believe in it. However, it is my belief that social injustice should not be a matter before the court. If indeed that is the sole premise, then that needs to be addressed in a venue of competent jurisdiction, not in a criminal court of the US on a charge of Rape. In that regard, he should not be held accountable for the transgressions of the organization he heads, unless he, himself, initiated those acts by either commission or omission. If the later is true, then he should be held accountable, however the venue and the charge currently at bar are wrong for those facts.
Wow! lots of info. Thanks! Yes, I know all that I wrote isn't entirely accurate, but I merely presented it as a foundation of an argument which I freely admit is unethical. I agree this isn't the venue/etc to judge social injustice.
Indeed, I mention I'm glad I won't be part of a jury judging him.
The reason why I decided to take this specific position in this entry is because I see this whole affair as a very strange thing to have happened to DSK now.
Also, I confess I'm less interested in making a sound argument based on American jurisprudence than I am in seeing this from a personal, almost intimate, perspective. I have talked to ppl offline about this, presenting my take, and everyone was shocked at what i said, because it sounds callous, not to mention misguided vis-à-vis the finer legal details, as you pointed out quite rightly.
But here's the crucial aspect for me: were I a part of that jury, despite being given all the instructions regarding my duty by the judge, and despite my opinions on the US legal system (I think it is a v good one), I do not think I would be able to make an abstraction of my personal opinions of what goes on in the world, and it is important for me to say this in polite society/company.
Generally speaking, I'd be able to coldly observe the evidence in a rape case -or other types of crime for that matter- without letting my political persuasions interfere. But not here. Is this a flaw of mine? Certainly.
Lastly --- the literary potential is simply too enormous for me to let it pass hahaha this is a huge theme! Guilt & innocence seen from an "epic" perspective if you will, can provide us with so many clues about the world, humanity, and society. It is beautiful, this case, because even if none of it is true, even if he did rape her, and even if he is found not guilty, the theme presents itself to us. It is like a puzzle whose image we can't see until there are only 2 or 3 pieces missing.
I'm interested in how one can extract art from this ugly reality. I think it's possible.
Thanks for comments, as usual
x
Beware you are now entering an irony free zone
Okay, in seriousness I take your point. In short you are saying that is we can't try DSK for the symbolic rape of, say, Zambia, then trying him for the attempted rape of Diallo is a good substitute, and conviction for one counts as conviction for the other.
I disagree. I would be more than happy if we took, say 600 bankers at random from Wall Street and another 500 from the City and executed them publicly- hostility to the death penalty notwithstanding. Their public deaths probably would have a deterrent effect on capitalist rape of workers everywhere.
But they should be taken at random from the ranks of all the employees and the representatives of Goldman Sachs should not be forgotten. Otherwise the bankers will merely drop DSK as they previously dropped Madoff- 'Nothing to do with us, is it gov, they was criminals....'
It's wrong to condemn a named individual (DSK) for an attack on another named individual. The point of scapegoat like my bankers above is that they are anonymous- like the Roman legionaries who were decimated as punishment- not hostages.
We want to try George Bush, say, for crimes against humanity. It's tempting to waterboard Jenna while we're at it, and there are good biblical precedents for punishing children for the sins of their parents but while this has a deterrent effect on the Bush family (we hope) it doesn't on the Goppers who would just say it serves the Bushes right for not being tough enough in their social and economic policy.
For a scapegoat punishment to work the target group must believe the axe could fall on their neck too.
Carl: yes, that is what I am saying, with one nuance: that *I*, personally, would. Not that we as a society ought to change the rules or find it acceptable or make it legal or anything of the sort. You, as a barrister, know, though, that justice isn't always present in a court of law.
Further, I ask, why is it worse for one man to be treated unjustly (having had, in turn, treated so many in the same way) than for countless anonymous ppl to be treated unjustly? (I know this is a larger, more difficult Q, but still, it is one worth considering.)
On the important point you make: you're entirely right. When can we start rounding those ppl up? Ah, we can't. We'll never be able to, and who'd call for it to be allowed? No one. It'd take a revolution for that to happen.
So, dealing with what is actually happening in the present, instead of a possibility which is extremely remote and utopian, what would you do, sitting in that jury?
Seeing as we cannot try Bush or any of his cohorts, and seeing as we have DSK in a prison cell (my God, the enormity of it!!!! if only it were Greenspan!), we forget about his collusion in crimes against human dignity?
Would you say the same if Cheney had been in DSK's place, charged with attempted rape involving Diallo?
er, sitting on that jury, with plenty of prepositional considerations below your lap.
I really thought someone would take issue with the British Colonial crack; shucks. I know my views run the line of strict adherence to law and procedure and I didn’t look far outside that scope. I likewise think that if you were impaneled as a juror, despite feelings and convictions otherwise, you would do what was right. To do otherwise would mean a lessening of the system and with that sense of right and wrong that you have, I have little doubt right would triumph. Right in rendering a decision based on the evidence presented, not on personal opinion or bias. I think the realization would strike you that do otherwise would reduce you to the level of the one who stands accused. And while that decision may be to acquit, there will eventually be a reckoning, in this world or the next. And what he/she has done will eventually catch up.
I think too that injustice often feeds political fervor. When you use the system in order to seek redress and that system is closed or corrupt, then a change of the controlling aspects of the system generally comes in response to. Typically it starts out well intentioned, but as often as not, it ends up being just as bad, or worse, as the system it replaces. But it is change. But typically what changes are the faces at the top. If you are in the middle or the bottom of the social hierarchy, the views stay pretty much the same.
What Carl had to say plays into this. I’m not sure that 500 bankers from Wall Street doing penance for ills are good. Where I differ is, I think if you are found guilty of insider trading or manipulating the market, or running a scheme, or laundering money for drug cartels then, you are punished the instant you are found guilty. Your head is locked into a stock and a high-pressure air cannon shoots nickels at your skull until you die. And the people you scammed or caused harm to get to run the actuator to shoot the nickels!! You market it on Pay Per View and get someone with a highly recognized logo feces to pay sponsorship. The distance starts at 100 meters and moves in every 15 minutes in 10 meter increments, just to build the suspense and facilitate the commercial aspect.
I don’t like the idea of scapegoats or being punished for acts that are not yours. If you do it then you stand to answer for your actions. But we must ensure that punishment is swift, certain, and severe. As far as the death penalty goes, it doesn’t bother me. Ruining a life is just as bad as taking a life in my opinion. Does it deter crime or the other acts referenced? No, but it does insure you don’t perpetrate a like offense again. So maybe it can deter in a sense. If not, well, somebody is going to get a lot of advertising exposure.
Yah-- I'm not into scapegoating either, and yah, if one breaks the law one should ideally face the consequences. Of course. But does it happen with traders? Does it happen to the powerful? It seems to me these mechanisms are in place only to protect the rich&powerful from those they exploit. Did DSK or Greenspan or Cheney or Blair think about the law when they acted (they changed the law(s) to suit their purpose even), or those who'd be at the receiving end of their decisions? Who is going to put these ppl on trial for what they did? No one. That's who. They have acted with impunity. Is this right? Am I wrong?
Sadly, there’s the way things are and the way things aught to be. Was the law a consideration? I think in one respect for some it was. Remember when there was a question put to general counsel about the potential legal consequences of waterboarding? Primarily, the legal premise is what can we do and how far can we go. In the US (and I realize I make quite a few references to this nation and jurisprudence) if it isn’t specifically prohibited or required by law, then it’s neither illegal or prohibited. That leaves quite a bit of wiggle room to "get stuff done." And if they were to be brought to trial, where would it be and what would it be for? Crimes against humanity? Persistent warmongering? Inflating banks with cash and making the rich richer world-wide in a global ponzi scheme? Who would have jurisdiction? And to be utterly cynical and pessimistic, name one world leader or mover and shaker that hasn’t engaged in some activity that hasn’t been tantamount to a crime at some point? In the final analysis, it’s to the victor that goes the spoils. As long as they can keep on winning nothing will happen to them. So it doesn’t make it right and it doesn’t make you wrong. It’s just the way things are.
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