I just returned from a legal conference held in Milan, Italy, over the weekend. Not surprisingly, dinner conversation turned to Dominique Strauss-Kahn (“DSK”). “What do you think Steve?” Before I could say a word, thank goodness, my European friends bubbled over, needing to share their views with an American. They could not be more different.
First, we had the apologist conspiracy theorists. “Of course, if he is guilty, he should be punished, but doesn’t something seem fishy? If he needed sex, he would not stoop to a hotel maid. This is a man of wealth and power. He could call some ‘service’ for that kind of thing. And what was she doing in his room anyway? (Um, cleaning?) And don’t these hotels train the maids to avoid such things, and isn’t there security around dignitaries and VIPs? This sure looks like a setup.”
Second, we had the “of course he is guilty” folks. “This is shameful conduct, truly shameful. And we are paying this guy, DSK. What an abuse of authority and position. Did you know he makes more money than your President? How dare he take advantage of a poor woman merely trying to do her job.”
Despite these diametrically opposed views on the question of DSK’s ultimate guilt or innocence, both groups were critical of the American justice system. “Your country claims to believe in the presumption of innocence, indeed it is in your Constitution, correct? How can it be that this innocent man is paraded in hand cuffs on television, and not only is his identity disclosed but every aspect of the crime seems to be leaked to the press and its insatiable appetite for breaking news. In our country the identity of the accused is strictly protected.”
The best I could say in my jet-lagged state was, “Well, we protect the identity of the victim.”
Although my personal views are in line with the “this is shameful conduct and of course he is guilty” folks, I am troubled by the failure of the courts and press to protect the “presumption of innocence.” We pay lip service to it, but nothing more. DSK and most criminal defendants are portrayed as guilty and I’m not sure I’m aware of any systemic protections – at least any that would be consistent with and rise to the level of protecting a Constitutional right. Why don’t the police and the court system protect the identity of the accused? Maybe we should have court rules that make it a crime to disclose the identity of the accused.
Under Federal Rule 6(e), we protect the secrecy of evidence presented to a grand jury, but once “probable cause” is established, there is no such mandate. It seems freedom of the press outweighs freedom of the accused.
A democracy must have an open justice system. The answer is not Stalinistic secret trials, but my friends in Europe make a valid point. The accused – although seemingly guilty of disgusting and shameful behavior – are entitled to the presumption of innocence until a jury finds otherwise.