France and America can have a serious debate about the pre-trial rights of defendants. The French treat theirs far differently than we treat ours. But if we are going to talk about the perp walk with our pals across the sea, if we are going to use the Strauss-Kahn case to educate them about criminal justice in America, we should be upfront and honest about what it is all about. We should say to the French:
When we talk proudly about the "presumption of innocence" we have in American justice systems we usually define the term quite narrowly. And our legislators and our lawyers and our judges certainly don't go out of their way to broaden that definition unless they absolutely have to.
As for the media, the legal presumption of innocence often means little more than using the word "alleged" or offering a brief disclaimer at the end of a piece or story. Aside from the occasional libel lawsuit, which are much tougher to win over here, the media want to get the story, or even just the image, no matter what other obligations they may have under our justice system. It is their legal right to do so no matter how unfair it may be.
In our country, the government, in all of its various forms, is not a neutral actor in the justice system. Sometimes, it sides with the media against the individual. And sometimes it sides with the individual against the media. And almost always it does this for its own selfish reasons. Surely you folks understand that.
In the case of the perp walk, law enforcement sides with the media to the detriment of the suspect. It does so to gain advantage in the court of public opinion, if not in an actual courtroom itself. And it has repeatedly been allowed to do so by the federal courts, which ultimately render the final judgment of these things. Defense attorneys and others who rightly complain about this tactic simply don't have the legal or political constituency to change it.
That an independent media would be complicit with the government in this fashion is only one of the ways in which our first amendment to the Constitution makes our law and our politics so different from those of the Western European monarchies we left behind in the 18th Century. We are what we are.
For Strauss-Kahn's supporters, French and otherwise, the bad news so far here is that he has, indeed, been humilitated repeatedly since his arrest (the release Thursday of a photo with him in his "suicide-prevention smock" is terribly prejudicial pretrial publicity and I hope some defense attorney or the presiding judge inquires about it). On the other hand, the very same media organizations who have been complicit in harming the defendant's fair trial rights this past week will be equally as aggressive and offensive in harming the alleged victim's rights next week (indeed, they've already started) and in covering all of the weaknesses that may arise in the state's case against the defendant. Pretrial publicity can giveth and it can taketh away, too.