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I haven’t been following the Casey Anthony case, so I have a good excuse for not having an opinion on whether the case was decided correctly. I do, however, find it strange that America seems to have rushed to condemn the jury, going so far as to say that juries cannot be trusted because citizens are simply too stupid or too easily influenced to come to deliver justice.
I recommend that we think long and hard before discarding the jury system... because, if you follow the anguished cries of outrage to their logical conclusion, you would want to do away with trial by jury.
Given the public sentiment, no one has taken the occasion of the Casey Anthony verdict to quote the immortal words of British jurist William Blackstone: “Better that ten guilty persons escape than that one innocent suffer."
Coming fast upon the Dominique Strauss-Kahn imbroglio, the Casey Anthony case has provided us all a lesson in the workings of the criminal justice system. We have learned, to the dismay of many, that the system is not set up to find out the truth of what happened or even to mete out perfect justice.
We should remind ourselves of the famous dictum of Supreme Court Justice Oliver Wendell Holmes, Jr. to the effect that the court system is really about playing the game according to the rules. And that this is not the same as doing justice.
As we saw in the case of Dominique Strauss-Kahn, it’s not so much about who did what do whom, but about what you can prove “beyond a reasonable doubt” in a court room.
It sometimes happens that the rules of evidence make it impossible to introduce information that would determine culpability. It might also happen that the leading witness be shown to be a liar.
If the complaining witness lacks credibility, and if her story contains inconsistencies, that does not mean that her accusations are false. It does mean that a jury will reasonably entertain doubt about her account of the events in question.
It seems clear that DSK and the hotel maid engaged in a sex act. It seems also to be clear that the act was sufficiently violent to have bruised the victim. Yet, since rape trials hinge on consent, prosecutors hesitate before going to trial with a witness who has no credibility, and who seemed to have wanted to try to profit from her new-found notoriety.
If the victim was sexually assaulted, justice will not be done. That is the way the game is played.
To the criminal justice system the Sofitel hotel maid is not credible. And yet, this morning Yale professor Mike McGovern offered a somewhat different take on the question, one that is worthy of attention. Not so much because it will change anything about the outcome of the case, but because it will allow us to ask some of the questions that very few people have been asking.
McGovern is an authority on living conditions in Guinea, the accuser’s home country. He is well placed to add some empathy to our considerations.
McGovern makes a simple point. Before you judge this woman to be a pathological liar attempting to profit from her own distress, ask yourself what you would do if you were living in abject poverty and were being subjected to severe abuse?
If you were living in those conditions, if you saw an opportunity to get a visa to come to the United States, and if you were told that you could only get a visa if you had been gang raped, what would you do? Would you lie?
It sounds harsh to put it like that, but it also rings true.
Let’s say that this woman was actually the victim of a sexual assault. She is a poor immigrant woman from Guinea. She is not wealthy or well-connected.
Now she would be facing another kind of choice. If she testifies in court her name will be on the front page of every newspaper in the world. She will be stigmatized beyond anything that any of us can imagine. Worse yet, she will be publicly humiliated by the best defense attorneys in New York.
Or else, she can drop the case in return for a financial consideration.
As we know, representatives of DSK flew to Guinea to offer a financial windfall to the hotel maid’s family.
If you were in her shoes, if you were facing that choice, would you choose to testify in open court?
In the larger scheme of things, this means that the threat of criminal prosecution is not the most effective deterrent against sexual violence.
But, as we have seen in the DSK case, and as we are seeing in the Casey Anthony case, the court room is not the only place where justice is meted out. People who are accused of crimes are also judged in the court of public opinion.
In that court they are not subjected to imprisonment or fines, but they are subject to loss of reputation.
Which brings us to “perp walks.” Public shaming, the kind that DSK was subjected to, does stigmatize individuals, regardless of whether they are innocent or guilty.
Thus, many countries forbid them. In America, where shaming is still an important sanction, they are still used.
And yet, perp walks do not protect the innocent from unjust accusations.
This might make us all feel that an injustice is occurring, but, in truth, reputation is quite fragile under normal circumstances. It often happens that someone’s reputation is damaged because of rumor and innuendo.
If the attack on reputation takes the form of slander, libel, or character assassination, a person has legal recourse. Still and all, whether or not you keep or lose your good name rarely depends on the verdict offered by a jury.
It does, however, depend on the way you look to your peers. Surely, we all can influence how other people see us. We can act with dignity and decorum at all times; we can honor the rules of proper conduct. We do not have complete control over the way we look to others, but we do have some control.
As we all know by now, regardless of what happened between DSK and the hotel maid, the former head of the IMF did not have a history of treating women with a great deal of respect.
We understand that the perp walk damaged his reputation, but that damage will be partially undone if and when the DA drops the charges.
Yet, that is not the whole story. The indictment of DSK produced an important reaction, most especially from a woman named Tristane Banon.
Banon is not a poor immigant; she is an accomplished journalist, the daughter of a friend of DSK. After seeing DSK accused of rape in New York, Banon came forth for the first time and accused DSK of having tried to rape her several years ago.
To Tristane Banon the charges against DSK were credible. To her they seemed to be part of a pattern.
Thus, she measured the value of avoiding the humiliation that often befalls those women who dare testify against their rapists against the value of exposing DSK for what she knew him to be.
Should we now join Bernard-Henri Levy in bemoaning DSK’s lost honor, or should we be more concerned that BHL’s great and good friend failed to respect the honor of we-don’t-know-how-many women.
Given the public sentiment, no one has taken the occasion of the Casey Anthony verdict to quote the immortal words of British jurist William Blackstone: “Better that ten guilty persons escape than that one innocent suffer."
Coming fast upon the Dominique Strauss-Kahn imbroglio, the Casey Anthony case has provided us all a lesson in the workings of the criminal justice system. We have learned, to the dismay of many, that the system is not set up to find out the truth of what happened or even to mete out perfect justice.
We should remind ourselves of the famous dictum of Supreme Court Justice Oliver Wendell Holmes, Jr. to the effect that the court system is really about playing the game according to the rules. And that this is not the same as doing justice.
As we saw in the case of Dominique Strauss-Kahn, it’s not so much about who did what do whom, but about what you can prove “beyond a reasonable doubt” in a court room.
It sometimes happens that the rules of evidence make it impossible to introduce information that would determine culpability. It might also happen that the leading witness be shown to be a liar.
If the complaining witness lacks credibility, and if her story contains inconsistencies, that does not mean that her accusations are false. It does mean that a jury will reasonably entertain doubt about her account of the events in question.
It seems clear that DSK and the hotel maid engaged in a sex act. It seems also to be clear that the act was sufficiently violent to have bruised the victim. Yet, since rape trials hinge on consent, prosecutors hesitate before going to trial with a witness who has no credibility, and who seemed to have wanted to try to profit from her new-found notoriety.
If the victim was sexually assaulted, justice will not be done. That is the way the game is played.
To the criminal justice system the Sofitel hotel maid is not credible. And yet, this morning Yale professor Mike McGovern offered a somewhat different take on the question, one that is worthy of attention. Not so much because it will change anything about the outcome of the case, but because it will allow us to ask some of the questions that very few people have been asking.
McGovern is an authority on living conditions in Guinea, the accuser’s home country. He is well placed to add some empathy to our considerations.
McGovern makes a simple point. Before you judge this woman to be a pathological liar attempting to profit from her own distress, ask yourself what you would do if you were living in abject poverty and were being subjected to severe abuse?
If you were living in those conditions, if you saw an opportunity to get a visa to come to the United States, and if you were told that you could only get a visa if you had been gang raped, what would you do? Would you lie?
It sounds harsh to put it like that, but it also rings true.
Let’s say that this woman was actually the victim of a sexual assault. She is a poor immigrant woman from Guinea. She is not wealthy or well-connected.
Now she would be facing another kind of choice. If she testifies in court her name will be on the front page of every newspaper in the world. She will be stigmatized beyond anything that any of us can imagine. Worse yet, she will be publicly humiliated by the best defense attorneys in New York.
Or else, she can drop the case in return for a financial consideration.
As we know, representatives of DSK flew to Guinea to offer a financial windfall to the hotel maid’s family.
If you were in her shoes, if you were facing that choice, would you choose to testify in open court?
In the larger scheme of things, this means that the threat of criminal prosecution is not the most effective deterrent against sexual violence.
But, as we have seen in the DSK case, and as we are seeing in the Casey Anthony case, the court room is not the only place where justice is meted out. People who are accused of crimes are also judged in the court of public opinion.
In that court they are not subjected to imprisonment or fines, but they are subject to loss of reputation.
Which brings us to “perp walks.” Public shaming, the kind that DSK was subjected to, does stigmatize individuals, regardless of whether they are innocent or guilty.
Thus, many countries forbid them. In America, where shaming is still an important sanction, they are still used.
And yet, perp walks do not protect the innocent from unjust accusations.
This might make us all feel that an injustice is occurring, but, in truth, reputation is quite fragile under normal circumstances. It often happens that someone’s reputation is damaged because of rumor and innuendo.
If the attack on reputation takes the form of slander, libel, or character assassination, a person has legal recourse. Still and all, whether or not you keep or lose your good name rarely depends on the verdict offered by a jury.
It does, however, depend on the way you look to your peers. Surely, we all can influence how other people see us. We can act with dignity and decorum at all times; we can honor the rules of proper conduct. We do not have complete control over the way we look to others, but we do have some control.
As we all know by now, regardless of what happened between DSK and the hotel maid, the former head of the IMF did not have a history of treating women with a great deal of respect.
We understand that the perp walk damaged his reputation, but that damage will be partially undone if and when the DA drops the charges.
Yet, that is not the whole story. The indictment of DSK produced an important reaction, most especially from a woman named Tristane Banon.
Banon is not a poor immigant; she is an accomplished journalist, the daughter of a friend of DSK. After seeing DSK accused of rape in New York, Banon came forth for the first time and accused DSK of having tried to rape her several years ago.
To Tristane Banon the charges against DSK were credible. To her they seemed to be part of a pattern.
Thus, she measured the value of avoiding the humiliation that often befalls those women who dare testify against their rapists against the value of exposing DSK for what she knew him to be.
Should we now join Bernard-Henri Levy in bemoaning DSK’s lost honor, or should we be more concerned that BHL’s great and good friend failed to respect the honor of we-don’t-know-how-many women.
1 comment:
It won't truly have effect, I suppose so.
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