Monday, July 04, 2011

Strauss-Kahn for the 4th of July

By Mike Dorf

My readership dips substantially on weekends and holidays, so normally I just take a pass. But I couldn't resist throwing something up here for you diehards who have nothing better to do this holiday weekend. I'll raise two sets of issues.

1) The elimination of the bail conditions (except for the limitation on foreign travel) is a somewhat odd response to the alleged victim's newly-revealed credibility issues. The main point of bail or jail pending trial is to ensure the defendant's appearance in court. The Supreme Court has also allowed that public safety can justify high bail or the denial of bail where the defendant is very dangerous. So, what's going on here? Presumably the logic is that now that we know that the case against Strauss-Kahn is weaker than we thought, he's less likely to flee the jurisdiction, because he has a better shot if he stays and fights the charges at trial. That is logical, I suppose, but weird. I don't think that the strength of the government case is usually a major factor in assessing flight risk. Or perhaps the doubts about the government's case mean that it's less likely that he's dangerous? That too seems odd. Is there some other way in which the victim's credibility issues might explain the lifting of house arrest?

2) I don't know enough about the conversation the alleged victim had with her imprisoned drug-dealer friend to have a view about whether it provides strong evidence that she falsely described a consensual sexual encounter with Monsieur S-K as violent simply to be able to cash in--although the physical evidence still appears to point in the direction of truth-telling. In any event, we might consider whether the criminal justice system faces a broader problem arising out of financial incentives to fabricate.

Suppose V alleges that D committed some violent criminal act against V. That criminal act is also going to be a tort for which V is entitled to damages and, in most jurisdictions, if D is convicted of the offense, then when V sues D for damages, V can raise the criminal conviction to collaterally estop D from mounting a factual defense. That's because a jury's conclusion that D is guilty beyond a reasonable doubt is more than enough to support the conclusion in the civil case that it is more likely than not that D committed the wrong against V.  In addition, if the case is sufficiently notorious, it will provide other opportunities for V to receive money--e.g., V can write a book (or have a book ghost-written for V), sell the movie rights, charge for interviews, get a job as a judge on a reality tv show, etc. So there are incentives for people to falsely claim that they have been the victims of serious crimes at the hands of the rich and famous.

Thus, I don't doubt that an occasional innocent person has served prison time as a result of a false accusation made by the accuser for financial gain. This is, of course, a tragedy when it happens, but I don't think it happens very often.  I would be very surprised if the scale of the problem of financially-motivated deliberately false accusations comes close to the problem of good-faith erroneous eyewitness identifications. So if we're looking for a general problem of unfairness to defendants in our criminal justice system, I don't think going after deliberately false accusations--whether financially motivated or otherwise--is the place to start.

Moreover, the idea that this is a general problem strikes me as reminiscent of old sexist attitudes towards victims of sexual assault. False accusations occasionally happen, but the criminal justice system has means of ferreting them out. In particular, the prospect of financial gain gives rise to a bias that the defense attorney may explore when cross-examining an accuser. There is no reason to think that women alleging sexual crimes are more likely to be making a false accusations than are the alleged victims in any other kind of case.

L'affaire de DSK has been noteworthy thus far in causing the French to rethink the treatment of women in the workplace and beyond. Whatever the truth in this particular case, it would be a shame if in the end it leads people in France or here in the U.S. to fall back upon old stereotypes.

Happy Independence Day!


AF said...

I think in high profile cases, the actual considerations that go into the bail question bear scant resemblance to the legal considerations. It's inconceivable, for example, that the public safety or risk of flight required Bernie Madoff to be jailed after his conviction as opposed to remaining under house arrest until sentencing.

On your second point, I don't doubt that deliberately false accusations are relatively rare, nor do I disagree that it would be a bad thing for people to use this case as an excuse to fall back on old stereotypes.

That said, it seems to me that the salient point of the DSK case is that there has been a travesty of justice that should not be condoned, justified, or minimized. Whatever actually happened in the Sofitel, it is clear that the evidence that DSK committed a crime is brimming with doubt. Pending further investigation, he should not have been arrested, perp-walked, jailed, or placed under house arrest. If those things resulted in a laudatory conversation about sexism in the workplace (a conversation, which, in the form it is presented by the DSK incident, the US has largely moved beyond ), that conversation, unfortunately, took place under grievously false premises and this point should not be minimized.

The injustice done to DSK doesn't necessarily demand outrage. He will land on his feet and is in any event not entirely blameless. If we are going to focus on this event, though, it strikes me that the most important point is that there was a serious injustice.

Paul Scott said...

Bail has always struck me as a very odd system.

On one hand, I understand the need for the State to have some sort of controlled release system, since the courts are overwhelmed and even if they weren't "instant" justice could not possibly be fair justice. But, since the State could probably not afford to hold all those people pending trial, some sort of controlled release system is needed.

That said, the bail system as the solution has always struck me as having several serious problems that I think we should be striving to do without.

The first is the legalized civil bail bondsman and associated bounty hunter. That just does not seem to me to be something a society should desire.

The second is the obviously unfairness of the system in terms of class. The poor are just far less likely to be able to avail themselves of the system than are the not-poor and especially the rich.

I think a better system might simply to only keep detained those involved in violent crimes and even then only after a determination that flight-risk and danger to society have been fulfilled.

Perhaps bail could be replaced by mandatory tracking devices and leave it at that.

I don;t know that it is a good solution, I just feel strongly that there must be a better system than cash-for-release.

Crispian said...

Bien dit. Just as there is a fear of a poor person making false accusations, there is the fear that such a case may be undone by a powerful and wealthy defendant.

To drop the case (despite physical evidence) does not let us sort out the first issue and lends credence to the latter possibility. That should be a concern of our justice system.

If the case does not proceed, the story will be about American prudishness and the barbarity of our judicial system (not withstanding the claims of Tristane Banon).

Ah, let us hope it goes better. Happy 4th of July!

michael a. livingston said...

OMG I agree with Dorf on Law twice in one day something is wrong with somebody here.

michael a. livingston said...

PS One interesting thing about the DSK case is the assumption that French public opinion is outraged at the "barbaric" treatment of DSK by the American judicial system. But if you actually look at Le Monde for a little bit, the comments are sharply divided: not surprisingly, people who liked the defendant for political or other reasons tend to support him, and those who don't, don't. I don't think this is much different from (say) the American commentary on high-profile cases in France or other civil law jurisdictions (e.g., the Amanda Knox case held in Italy), and I don't think it's much reason for Americans to be defensive here.

Crispian said...

Good point, Mr. Livingston.

But the disturbing thing is that some of his most vocal defenders excuse his behavior, even while assuming it is essentially true. They spin it that maybe he was just aggressive, just being a man, etc. That is far afield from defending a political ally on the basis that maybe he didn't do it or shouldn't resign, etc.

Now there certainly may well be a divide between the plebeians who comment at Le Monde and those writing the headlines and commenting on french television. Just as there is a divide between the New York Times and the regular folk. But there is clearly a sinister strain of sexism in France that the opinion makers defend.

Unknown said...

However, the bail system that the solution has always seemed to me to have more serious problems that I think we should try to do without. The first is legalized civil serf bail and bounty hunter related. It does not seem fair for me to be something a company should desire. The second is patently unreasonable for the system in the form of class. The poor are simply much less likely to be able to take advantage of the system than non-poor and especially the rich.
Dropping the case (despite physical evidence) does not let us solve the problem first and give credit to the latter possibility. It should be a question for our legal system. If the case does not occur, the story will be about American prudishness and barbarism of our judicial system (not resist the demands of Tristan Banon).WOW Items WOW Gear eden gold buy eden gold cheap eden gold

Unknown said...

I don't know enough about the discussion the believed sufferer had with her caught drug-dealer buddy to have a perspective about whether it provides powerful information that she incorrectly described a consensual erectile experience with Monsieur S-K as severe simply to be able to money in--although the actual information still usually place towards truth-telling. In any function, we might consider whether the legal legal system people a greater issue developing out of personal offers to fabricate.
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