The case of Dominique Strauss-Kahn raises several important ethical questions. As I’ve blogged before, the perp walk and alerting the press were violations not only of Strauss-Kahn’s right to privacy but also created a prejudicial atmosphere.
While this was a kind of trial before the trial, as the media frenzy soon after his arrested attested, many countries have strict policies around revealing the identity of the accused. After this debacle, press discretion has its appeal. But while secret trials have their advantages, they also have their drawbacks. The public is entitled to information that is important to its welfare and, on balance, the accused and victims are better served by open trials than closed ones. Justice, as a rule, works best when it is transparent.
The right balance between openness and privacy won’t be found through rules but ethically. When the police and prosecutor are interested in serving the public and not their own careers and when the media are interested in promoting the public good and not increased revenues, then, a proper balance can be found. The solution comes down to individual integrity, not systemic reform.
The Strauss-Kahn affair shows that integrity in the law is possible, as demonstrated by the later action of NY’s DA. What seemed like a solid case against Strauss-Kahn began to seriously weaken when the credibility of his accuser began to unravel. This information was revealed by the DA’s office to the defense and public, thereby undermining its own case. It was an embarrassment that issued from doing the right thing.
“As prosecutors, our duty is to do whatever is right, in every case, without fear or favor, wherever that leads,” District Attorney Cyrus R. Vance Jr. said. “The disclosures we made that led to today’s proceeding reflect that principle.”
Vance’s remarks run contrary to the popular notion of criminal proceedings in an adversary system, in which each side is obligated to mount a vigorous argument. Here is an instance where the prosecutor as much as folded not in front of defense arguments but as a result of further investigation that undermined his own case.
If defense lawyers did the same, they could be sued for malpractice. But the duty entails something more than winning: it is serving justice. The concept was articulated by the Supreme Court in 1935. “The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as is its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.” http://supreme.justia.com/us/295/78/case.html
What a contrast to the fate of John Thompson whose $14 million civil lawsuit against a DA’s office in Louisiana was overturned 5-4 in a March Supreme Court ruling. Thompson spent 18 years (14 on death row) after being convicted for robbery and murder. http://www.law.cornell.edu/supct/html/09-571.ZS.html
The case was this: A private investigator discovered that Harry F. Connick’s DA office had hidden evidence that exonerated Thompson just one month before the scheduled execution. Upon his release, Thompson sued the Orleans Parish DA’s office on the grounds that its gross indifference to incompetence of the prosecutors for having kept the evidence secret for 15 years, destroying some over the years. Thompson won the case, but the Supreme Court overturned it, with Clarence Thomas writing for the majority that the DA’s office wasn’t liable for failing to train is lawyers about their duty to turn over evidence favorable to the accused.
Unlike Cyrus Vance, who takes his dual duty seriously, Harry Connick seemed focused only on winning. Connick, in fact, boasted that he “stopped reading law books” after he started his job. So what they he suppressed evidence that he was duty bound to reveal, so what that it meant that an innocent person was to be executed? Didn’t his 29 years on the job count for anything?
Good thing some citizens are protected by the integrity of those in office. By its recent decision, more power has been put back into the hands of the prosecutors and police. This may make the case for transparency in the criminal justice system even more important. While the privacy of some will be trampled upon, the rights of others, who may turn out to be innocent, will be enhanced.