The Three Circles of New York Justice

The “case” was too perfect: A white man, powerful, rich and respected allegedly rapes a young black housekeeper. An immigrant, a victim of violence in her home country, and in spite of everything, still trying to raise her child with dignity.

The arm of the law strikes immediately.

“Presumed guilty,” he is arrested and charged, feeding the media and public opinion. The United States demonstrates that in countries of democratic equality, contrary to what was written by Jean de La Fontaine, the powerful are treated as the most modest.

Six weeks later, everything falls apart.

By the admission of the Manhattan district attorney, Cyrus Vance, Jr., in a letter dated June 30 and addressed to the defense team of Dominique Strauss-Kahn, the victim, Nafissatou Diallo, lied, not only during the procedure, but also when she entered the United States.

Comments start fresh, this time to attack the plaintiff, who would be deemed a liar by both justice and the media, whose combined practices succeed in pillorying, as in the Middle Ages, free from facts and the presumption of innocence, and finally from American “morals,” a kind of blind Puritanism that has not changed much since Nathaniel Hawthorne’s The Scarlett Letter.

Beyond the facts and the prejudices, what is revealed in this drama? It shows not only that justice is a human institution, and therefore fallible, but also that its application in the state of New York is being debated at three levels: politics, media and the law.

Cyrus Vance, district attorney of Manhattan, is subject to the constraints of public opinion. This may cause some demagoguery, as the defense of people and goods is no longer just a principle, but also a career goal. An elected prosecutor must be careful, as he can not risk an error of justice. Ruthlessness is counterproductive, especially in a case where there is only one witness, the victim. The specter of a recent case in North Carolina will, without a doubt, haunt the proceeding. In 2006, three young white athletes from Duke University were accused of gang rape by the prosecutor Mike Nifong, who relied on the sole testimony of the victim, a black student named Crystal Mangum. The case turned in favor of the defendants, and it led the prosecutor to be disbarred. This precedent could only encourage Cyrus Vance, a brilliant lawyer and tactician, to employ a measure of restraint.

But can one still speak of restraint after the scene of Dominique Strauss-Kahn’s arrest? As opposed to France, where this type of exhibition is prohibited, the “perp walk” has been a habit of the New York Police Department since the 1980s, partly to show that the accused were being treated fairly in the city’s stations. It became widespread under the leadership of Rudy Giuliani, U.S. Attorney, in an effort to fight against white-collar criminals, who often have the finances and connections to avoid a conviction. The perp walk guarantees at least humiliation in the court of public opinion.

But what about the presumption of innocence? Who would not look guilty being handcuffed, distraught, surrounded by police? Rather than serving as a check against power, the media participates in a collaboration with the prosecution by flattering the worst of popular opinions. This is why the practice itself was challenged in court by former defendants, especially in the late ’90s, claiming a violation of the fourth amendment, which guarantees protection from judicial abuses. There was, however, no practical effect other than to specify the conditions of the application of the perp walk. This transparency is here to stay unless it is proven that its consequences could undermine the fairness of the trial, the due process of law, which federal courts have not recognized.

Finally, the role of the couple, Lies and Truth, is essential in the judicial process. If the trial takes place, the jury is composed of twelve members who must reach a unanimous verdict. Doubt is not allowed. Hence the importance of the credibility of the witnesses and the shock of recent revelations about the victim. One is directly related to the rape charge, but all are consistent with a witness who is not reliable. It is difficult to imagine persuading a jury to agree unanimously on such a basis. The case seems risky for the prosecutor, even though the rape charge remains, given the physical evidence of sexual intercourse. We see that Puritanism has nothing to do with this attitude. It’s just a matter of Common Law, a system where the word of a witness is fundamental, and suspicion can be decisive. The defense lawyer, Kenneth Thompson, emphasized the brutality of the facts, once doubt is instilled. The process is fragile, and the appearance of truth is more important than the truth. In this sense, the pragmatism of procedure led to the definition of innocence as the simple persistence of a reasonable doubt, which works in favor of the accused.

Apparently, New York justice has not grown in the case of Strauss-Kahn. Matters of politics, procedure and media combine to transform a deeply shocking story into a mess, from which nobody seems to emerge unscathed. However, despite its excesses, the American justice system is able to correct its mistakes, even if it is only through the election of local prosecutors and judges, as opposed to a French court, where the opacity and rigidity can have dramatic consequences.