Countless times during the entire saga involving Dominick Strauss-Kahn, former head of the IMF, we heard criticisms about "being tried by the media."
And now we can see that despite "being tried in the media," now DSK is being exonerated by that same media -- or at least, the stage is being set for him to plea down his alleged offense, or for the case to completely fall apart.
Over and over again, we heard how awful it was that the media "tried people" and somehow disrupted the principle of "innocent before found guilty."
But now we are watching through this self-same media how the prosecutors are in fact unravelling their own case and admitting where the holes in it are, that have to do with the character of the purported victim, other circumstances that impugn her honesty and so on.
I'm wondering how they could find DNA on her -- the defendant's sperm, we are told -- yet not come up with a sex offense in the end, but perhaps that's explained away by allegations that she is a prostitute -- allegations she is vigorously denying and even filing a libel suit about.
There's other past offenses, and another alleged victim coming forward in France with a tale of rape as well -- yet we're still hearing endlessly from the left, from the socialists, from all kinds of people that this is "a plot" and a conspiracy to prevent a socialist president from being elected in France. Hmm, seems like a great length to go to, to prevent socialism, as the French people already are capable of rejecting the socialist path at the election booth if they chose.
The fact is, if you were to somehow prevent this "trial by media," you would do grave damage to press freedom. And even the much-maligned "perp walk" being questioned now by leftists as well as by libertarians is something that is essentially a function of press freedom, and the "people's right to know" -- to see that the authorities have a prisoner in their custody.
There is a notion that this "perp walking" is somehow done triumphantly, with some kind of bravado. Maybe sometimes it is. But I think people unfamiliar with the police and the courts in New York City don't realize how most perp walks in Manhattan happen -- on a lonely side street behind a huge building at 100 Centre Street, without any witnesses. Thousands of prisoners come into the Tombs, as it is known, this way, their hands handcuffed behind their backs, and nobody even notices. After all, they have to get from the place of arrest into the police car, and into the police car into Central Bookings somehow. Isn't this better not being a routine that happens in the dark? It's only with the notorious cases or cases of celebrities that the press shows up to watch this mundane exercise -- and then there's a show. Even so, the idea that the public *can* see what the police is up to is better than not knowing what the police is up to.
As for "trial by media," you have to contemplate what it would be like if we had a gag on the media until a trial was set -- as they do in places like Belarus or Kazakhstan. It can be awful then, in those authoritarian conditions, where nobody ever gets to try to investigate a case outside the system -- not private lawyers, not human rights groups, not family members -- no one, under pain of criminal punishment. I've known of a number of cases of Eurasian journalists jailed themselves for discussing court cases critically -- it's called "divulging the secrecy of the investigation." Yet adversarial defense requires media freedom, not just an independent bar and an impartial judiciary. You have to enable both the media and the public at large to be able to discuss cases. Countries that enable libel suits to be launched by public officials and that muzzle journalists aren't countries with fair justice systems.
That the system of enabling media freedom works better is can be seen in this very case of DSK -- the case is being examined and information brought to bear, and from the beginning we heard DSK's side of the story, through his lawyers, although they did not yet say what they knew. That came out later from the prosecutors themselves and several sources.
Has this man's career been needlessly ruined and is he a victim of terrible injustice? Well, let's not forget that he fell into this situation not for the first time, and that his falling into it was in part a function of a justice system that did not want to favour the rich and famous, and could find the ability to bring a suit even by a poor immigrant cleaning lady. Now it turns out she has $100,000 in her bank account -- and the details are not known.
The DSK case may have irreparably harmed the reputation of district attorney Cyrus Vance, although his reversal of his own allegations and willingness not to follow the path of political correctness in fact may testify to his integrity, as Dorothy Rabinowitz writes in the The Wall Street Journal. US relations with France, or at least New York City's relationship with France are heavily damaged, and socialists will go on making hay with this scandal forever.
But what shouldn't be damaged by this case is press freedom -- press freedom was needed to find the facts all along the way, making the allegations, and then retracting them.
There is a lot of hype about "trial by media," and yet, it's hard to find cases really fitting that category. In this case, another Wall Street Journal editor wrote honestly that the media bit into this red meat too hard -- it was too delicious, the "champagne socialist," the international civil servant living in $3,000-a-day hotel suites, and so on. Journalists don't always apologize when they are wrong; the WSJ did.
Interesting, just as the DSK case has been breaking, another case surprisingly led to an aquittal that seemed to have long ago been tried and found guilty by the media -- the case of Casey Anthony, charged with murdering her two-year-old daughter. She was acquitted because of the rigorous laws of "trial truth" -- she was not proved guilty "beyond a reasonable doubt" because they could not find her DNA on duct tape on the child's mouth, and other evidence didn't materialize. The case fell apart too, unexpectedly, at the end, and the jury did not take more than a day to acquit her. When there isn't evidence linking a suspect, well, there isn't evidence. As with OJ Simpson. All the trials-by-media then don't matter because in a jury trial, the jury generally really does look at the facts as presented, to decide whether the state has made its case. After all, it's not as if Casey Anthony was dragged through the mud needlessly by the media -- she was found guilty of the misdemeanors of lying to prosecutors about various alibis she made in the course of the case.
Ultimately, when you become indignant about "trial by media," you have to ask yourself what would be involved in the complex matter of stopping such trials and even stopping such perp walks. The thorough-going suppressing of media and society involved in preventing what is viewed as an undermining of innocence and justice would itself soon begin to corrode that justice.
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