In Sunday’s New York Times, novelist and lawyer Scott Turow does what all too few commentators on public affairs are willing or--perhaps more accurately and sadly--able to do these days. He looks at a story in the news and seeks to articulate what, if any, important principles are at play beyond the matter’s perceived effect on the immediate fortunes of an individual or a corporate entity.
The issue in question was Manhattan District Attorney Cyrus Vance Jr.’s recent decision to drop all charges in the case of sexual assault involving former IMF head and one-time leading candidate for the presidency of France, Dominique Strauss-Kahn. In the article, Turow applauds the prosecutor for deciding to brave the inevitable political fallout and to cede to the doctrine of “reasonable doubt” in regard to the testimony provided by Strauss-Kahn’s accuser.
Like Turow, I applaud Vance’s decision. I do so not because I believe Strauss-Kahn is a great guy, nor because I am blind to the very real problems of sexual coercion and violence.
Indeed, there is enough information out there to suggest to me that DSK is, at best, a narcissistic cad who believes his high political standing bestows on him the “right” to demand sexual favors from most any woman who crosses his path, and at worst, a serial abuser. And as someone who, among many things, hears a good deal about what happens on and around college campuses after dark, I’d have to be a fool not to take problem of sexual exploitation seriously.
No, I support Vance’s decision because it affirms a very simple and essential premise of our social compact, one that many of our fellow citizens seem to have forgotten in recent years: that the burden of proof in our legal system lies heavily with the person or entity generating the charges against the other party.
The reason for this asymmetrical weighting of the legal equation is clear and compelling. The founders of our system, like the Roman and British jurists on whose doctrines they so often relied for guidance, understood the enormous power inherent in the act of accusing another person of a crime or serious malfeasance in public.
They knew that if this prerogative were to be used flippantly, which is to say, in a way where the accuser’s “facts” were not subject the very highest level of empirical scrutiny, it could very easily turn into the cudgel of cynical and self-interested parties. They were especially concerned that the government would come to use its prosecutory power not to rid the society of clear and present dangers, but rather to enforce, through the real or implied the threat of legal action, one element or another of orthodox thinking or orthodox behavior.
Scott Turow’s interest in the concept of reasonable doubt, and from there, the need to insure that prosecutions be generated only when the preponderance of available evidence has been gathered through rigorously legal methods, is quite long-standing.
Unfortunately, I cannot say the same for the newspaper that published his essay on Sunday, a media outlet that, rightly or wrongly, still plays an enormous role in determining which stories and ideas newsgatherers further down the food chain take seriously.
Few and far between are the “news analyses” and Op-Eds in the New York Times during the past decade that have gone beyond the methodology--which the paper’s writers and editors seem to think is inherently beyond reproach--of presenting two differing interpretations of a given legal question without granting evident favor to either. And even the generally admirable Turow seems to reserve large-circulation comments on this important issue of defendant’s rights for cases involving celebrities such as Kahn and O.J Simpson.
As a result, readers of the Grey Lady have, it seems, come to internalize some pretty strange ideas about our legal system.
One is the is the notion that “reasonable doubt” and its companion doctrine concerning a defendant’s right to the “presumption of innocence” are essentially matters of personal opinion and/or context, that is, issues about which people of good will can, depending on their ideological outlook, either accept or reject under our system of laws. Another is that these so-called “legal technicalities” only warrant serious public discussion when people of a high public profile are fingered for the commission of a crime.
How do I know this?
Because while these core principles of our legal system have been regularly and cavalierly violated during the last decade, the mainstream “liberal” press, led by the NYT and the network websites that align themselves closely with its vision of society, have not raised their voices beyond the level of a wimper. And then, usually only in belated response to ruckuses provoked on the periphery of the information system by bloggers like Glenn Greenwald.
Sure, there are occasional articles in these establishment outlets about the government’s “troubling tendency” to circumvent certain long settled matters of due process. But in almost every case, the exposure of these patently unconstitutional realities is followed by a “thoughtful” and “nuanced” discussion concerning the “clear need” to adapt old constitutional guarantees to both “political reality” and the “unprecedented” new challenges posed by the “War on Terror”.
If you think I am exaggerating, consider the deafening mainstream “liberal” silence on:
--The summary and wholly extra-legal execution of Osama Bin Laden.
--The government’s publicly stated aim to summarily execute the American citizen Anwar Al-Awlaki.
--The government’s brutal and clearly unconstitutional (at least in regard to US ratified international torture conventions) pre-trial detention of Bradley Manning.
--The government’s harassment of persons or entities known to have even a tangential link to Wikileaks and Julian Assange. Particularly troubling is the government’s willingness to pressure private companies such as Visa and Paypal to acts as agents on their behalf in this endeavor designed, above all, to keep evidence of government criminality, immorality and general skullduggery out of widespread public discussion.
--The government’s brutal drive to destroy the life of NSA whistleblower Thomas Drake.
--The gross abuses—calculatingly implemented with the aim of silencing dissident political thought --of the Material Support for Terrorism provision of the Patriot Act. There are many examples to choose from. But perhaps the most egregious of them is the series of FBI home invasions inflicted upon activist Mick Kelly and several of his peace community associates last year in Chicago and Minnesota.
--The refusal of numerous prosecutors and judges around the country to vacate convictions even after an imprisoned person has presented fairly unequivocal exonerating evidence (DNA tests or the voluntary confession of another person) to the courts. If the Federal government wanted to do so, it could exert strong pressure on these local officials to do the right thing. But the people in Washington have obviously concluded that insuring that members of the Brotherhood of Prosecutors not appear in public with egg on their face is more important than insuring that justice be done.
--The decision in April by the Department of Education's Office for Civil Rights (OCR) to enforce rules which effectively prohibit people accused of sexual harassment on college campuses from questioning the allegations of their accuser in campus disciplinary proceedings. “OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing. Allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment.”
--The effective presumption of wrong doing that is applied to American citizens when they return from trips abroad. I travel quite a bit for my job, often to countries where the US acted, not so long ago, as the great enabler and supporter of regimes that terrorized the local citizenry. In these places, I am invariably waved into the country with a smile and a wish for happy travels. It is only when I return to my own country that I am treated with suspicion and invasive questions about my personal life.
No matter what the think-tank sophists say, there is nothing “unprecedented” about the foreign threats faced by this country in the wake of September 11th. The US has faced down far more fierce and powerful opponents in the past.
But even if the terrorist “threat” were as big as the hyperventilating courtiers pretend it is, it still would not justify the suspension or modification of precepts as central to the maintenance of our social contract as “reasonable doubt” and the “presumption of innocence”.
Unlike so many of today’s supposedly left-leaning journalists and policy “experts”, the founders understood just how essential these doctrines were to the maintenance of a democratic system. This being the case, they would have never have meekly consented to seeing them abridged or modified in the name of passing political exigencies or the real or imagined presence of external enemies.
So I guess I should probably thank the New York Times and Scott Turow for bringing us yesterday’s reminder about the function “reasonable doubt” in our legal system. I would feel a lot better, however, if the paper, and the many people who look to it for political guidance, would get exercised about this key issue in a much more sustained—and much less class-restricted--fashion.