Op-Ed: American justice is too open

Posted Jul 25, 2011 by Alexander Baron
The Strauss-Kahn affair is living proof that politicians and legislators need to drastically rethink America’s approach to criminal trials to ensure fairness to both alleged perpetrators and alleged victims.
U.S. Supreme Court
Washington: This is the Supreme Court of the United States where the ultimate decisions are made
dbking (CC BY 2.0)
On Christmas Day last year, the body of a missing woman was found in Bristol, after which her elderly landlord was arrested on suspicion of her murder and grilled for three days. A tragedy for a family became a great story for the tabloids, and Chris Jefferies was made for the part, after all, look at the guy’s haircut, nudge, nudge, wink, wink. Actually, the coverage was a bit more lurid than that; you can read what the British legal authorities thought about it here.
Subsequently, another man was arrested; he is now awaiting trial having admitted killing Joanna Yeates though denying her murder. Even so, two tabloid newspapers have found themselves in the dock.
Contrast the British approach to criminal (and civil) law with the recent case of Casey Anthony, and the ongoing case of Dominique Strauss-Kahn. It appears that anything goes in America. The case against Casey Anthony was so absolutely overwhelming that even a news reporter who commented on it objectively sounded like he was making a prosecutor’s opening speech. Some, most notably Nancy Grace, didn’t even try to sound objective. “Tot Mom” has now been acquitted of all major charges against both the weight of the evidence and public opinion, but, and here is a truly horrible thought, what if she really had been innocent and the jury had convicted her? She would undoubtedly have appealed, but almost certainly her conviction would have been upheld.
The authorities did take some measures to ensure that the defendant who is now the most hated woman in America was not unduly prejudiced; they selected a jury from out of town. In addition to that, some evidence that would have been highly prejudicial was excluded by Judge Strickland, and Judge Perry who tried the case likewise bent over backwards to be fair to the defense. If he over-ruled so many of the objections raised by the defense and sustained most of those made by the State, Jose Baez must be blamed, not him.
The case against Dominique Strauss-Kahn is serious, but it falls well short of capital murder. If his name had been Joe Sixpack, it would probably not even have been reported, but because he was such a prominent figure on the world stage, even an allegation of shoplifting would have made the international press.
The case against him was reported initially to be very strong; the alleged victim is considerably younger than him, and most unlikely for many reasons to have consensual sex with any stranger under any circumstances, and there is said to be some sort of physical evidence of intimate contact.
Then, suddenly, the alleged victim is said to be unreliable – that is the most diplomatic word that can be used. Some of the allegations made against her by uncredited sources (which may not exist) are beneath contempt. Now, even worse, she has gone public and spoken about her encounter with the accused, albeit in an extremely guarded way.
How would this have run in Britain? For some reason, any alleged offence involving an allegation of sexual impropriety is taboo, virtually nothing can be reported including the identity of the accuser/alleged victim in many cases. Let’s take sex out of the equation though, if Dominique Strauss-Kahn had been accused of punching a hotel porter, what would have been reported, or rather, what would not have been reported? Any allegations against him would have been taboo, including any previous convictions. If his accuser had gone public revealing details of the incident, there would have been a strong case for staying the proceedings, but by the same token, although his lawyers and the man himself would have been permitted to protest his innocence, they would have gone further than that at their peril.
The case against Dominic Strauss-Kahn has now been seriously compromised, which is clearly what someone wants. Date rape cases are almost always a he said/she said affair; allegations of “mere” sexual assault are often worse because there is seldom evidence of any sexual contact. In this case there is though, and as this is not a date rape case, it should come to trial. Even if Nafissatou Diallo did lie on her asylum application, or if she had a dubious sexual history as has been suggested by anonymous (of course) sources close to the investigation, this case should still go to trial. Crimes are sometimes committed in prison. Sometimes? Mostly, such offences are dealt with internally, but a crime of sufficient seriousness will result in the police being called in, and a criminal trial.
In August 2002, Roy Whiting had his face slashed by a fellow inmate at Wakefield Prison. Whiting is serving a life sentence for the murder of eight year old Sarah Payne. Ricky Tregaskis is also serving life, but he wanted to make a name for himself by wounding one of the most high profile and hated child killers in Britain’s prisons. He was charged, and convicted at Leeds Crown Court.
The fact that Whiting would ordinarily be considered an unreliable witness was beside the point; a serious offence had clearly been committed, and a prosecution should have been brought. The evidence in the Strauss-Kahn case is not that clear, but where a serious allegation has been made and appears to be supported by credible evidence, it won’t wash simply to dismiss the case because the alleged victim or the principal witness is unreliable. Most witnesses can be dismissed as unreliable by some criteria.
It is difficult to make any sort of prediction with this particular case but there are two broad possibilities; either the proceedings will be stayed - which would clearly be unfair to Nafissatou Diallo; or the resulting trial will see either or both parties subjected to torrents of abuse. Clearly this cannot be in the interests of justice. So what should the American legal authorities do in future?
There should be some basic contempt of court act that restricts comments to fair and accurate reporting, certainly in high profile, controversial or extremely serious cases. The most obvious measure here would be to exclude cameras from the courtroom prior to jury selection. Also, the American police disclose far too much evidence; there is no reason this can’t be made public at a later date, but prior to trial there is no reason it should not be limited to the parties concerned. The quantity of evidence released prior to and during the Casey Anthony trial was astounding, or would be to British courts. Photographs of crime scenes, bloodstained exhibits and human remains which are apparently routinely disclosed during the course of American legal proceedings are a strict no-no here, and are locked away for 30, 75 or even 100 years. Even though it was pixilated, there was absolutely no reason for the skull of Caylee Anthony to be displayed to the world during her mother’s murder trial; in addition to causing distress to the families of victims, this sort of thing can only be extremely prejudicial to the accused, including after the conclusion of the trial.
This is not an issue of freedom of the press. When somebody’s freedom or in Casey Anthony’s case somebody’s life, is on the line, the court must have the power to ensure the proceedings are not jeopardised; where the interests of justice dictate there should be a trial, and that trial must be fair and must be seen to be fair, to all concerned.