Friday, November 03, 2006

An atom of meaning: the Lurçat trial (Part II)

That's the most important piece of evidence we've heard yet, said the King, rubbing his hands; so now let the jury--

If any one of them can explain it, said Alice, (she had grown so large in the last few minutes that she wasn't a bit afraid of interrupting him,) I'll give him sixpence. I don't believe there's an atom of meaning in it.

The jury all wrote down on their slates, She doesn't believe there's an atom of meaning in it, but none of them attempted to explain the paper.

If there's no meaning in it, said the King, that saves a world of trouble, you know, as we needn't try to find any.

[Part I can be found here. More background information here.]

(So far in the trial the identity of the defendant has been established, and two witnesses for the defense who have seen the videotapes in the possession of France 2 have testified that their content clearly indicates France 2 and Enderlin both lied, establishing truth as a defense to the charges against Lurçat. The witnesses were neither cross-examined nor challenged.)

Now it was time for the attorney for the plaintiffs--a blond women of some elegance-- to speak. The main thrust of her argument was twofold: it started with a short bit to state that Lurçat was indeed responsible for the content on his website, and then came a fairly lengthy hymn of praise to the great and powerful Charles Enderlin.

Most of her speech was ad hominem; it had to do with who Enderlin is, not with refuting anything that had been said in court against him. Her stance: how can they say these horrible things about a man so great? One must make a serious investigation before saying something against such a renowned journalist!

As I wrote here, in France one of the elements a defendant must prove in a successful defense against a claim of defamation of a famous person is that the defendant launched a "thorough investigation" before making the allegedly defamatory statements. So his attorney's emphasis on Enderlin's fame was an important part of establishing the case; Enderlin's highfalutin status required that any accusations against him be more tightly researched than a Harvard doctoral thesis.

The attorney went on to say that proof that Enderlin and France 2 lied was weak, and it's bad to say this against such important people without very strong proof. But it's hard to know what would have constituted proof strong enough to have convinced this court. True, there were only two witnesses, but both gave very strong testimony that went unchallenged. And, of course, there's the mystery (still unsolved, despite my questioning various people about it) of why the tapes themselves had not been viewed by the court.

The entire trial had been downplayed, it's true, despite the overwhelming importance of the issues therein (and despite--or perhaps because of--the great prestige of the great Enderlin), Keeping the videotapes under tight wraps went along with that tendency. Or perhaps it's just part of the general downplaying of courtroom evidence in the French system.

Then again, perhaps it wouldn't have mattered even if there'd been a plan to show the tapes. You may recall from Part I that this courtroom wasn't equipped with a functioning video player.

For me, there were certain moments that crystallized the absurdity of the case. One was when the attorney for the plaintiff discussed Richard Landes's testimony. Landes, a medieval history professor at Boston University and author of the website Second Draft devoted to the al-Durah case, and the blog Augean Stables focusing on related issues, gave what appeared to be cogent, clear, and compelling testimony that certainly riveted the judge (and, once again, I must issue a disclaimer: I'm an acquaintance and friend of Landes's).

What appeared to be the sum total that the attorney for the plaintiffs had to say about Landes's testimony? "If you can understand Landes's explanation--well, I can't."

Okay then, moving right along. The attorney criticized the Israeli investigation of the site that later showed that the gunfire could not have come from the Israeli position, as Enderlin had originally claimed. The experts involved were not "real experts." Even the Israeli paper, Haaretz, had criticized them!

The latter argument was of a type that apparently featured heavily in the first trial. It goes as follows: Israeli sources are considered biased by definition, unless they are criticizing Israel in some way, in which case they are the best authorities. Of course, this indicates a failure (perhaps understandable from the French point of view, coming as it does from a country where the press is under the thumb of the state and quite monolithic) to comprehend the free-for-all of argument in the Israeli media, with Haaretz being a newspaper that is so far to the left that it's sometimes accused of being a Palestinian mouthpiece.

As for the lack of blood in the videotapes--well, plaintiff's attorney indicated, sometimes people get shot without there being any blood. Okay, lady, if you say so. Forget having to introduce expert witnesses on the subject, forget evidence--forget the fact that this was allegedly a stomach wound, which are known to bleed freely and copiously.

The attorney went on to throw in the fact that Lurçat's organization had been banned in Israel as being too extreme (at which point my interpreter, a young Frenchwoman who has lived in Israel, went quietly ballistic, whispering furiously to me in English, "But that's a lie! That's not true at all!" But alas, she hadn't been called as a witness.)

(This tendency of plaintiff's attorney to slip in allegations that hadn't come up in the trial was a puzzlement to me, and remains a puzzlement. Experts on French law, please come forward and explain; I'd love to understand.)

The procurer is a special figure in the French legal system who is supposed to represent the interest of the people. At the first France 2 trial she apparently spoke out eloquently for the importance of freedom of speech, and recommended a ruling on behalf of the defendant, although her suggestion was mysteriously ignored (well, perhaps not so mysteriously--after all, France 2 is a state-run organization). This time the procurer--a different person than before--spoke briefly on matters concerning Lurçat's identity (he is who he is) and the definition of defamation (the words in question fit the bill). And then she reiterated what seems to be the main point here, that charges such as "disinformation" and "lies" are a big thing against a journalist especially, and we have to be very careful how we talk about these images.

Then the lawyer for the defense spoke. His first argument was that Lurçat didn't actually write the supposedly defamatory words on the website. His second argument actually mentioned liberty, however (remember that sign on the facade of the courthouse? Liberte? Ah, yes, liberty!) He mentioned that the right to criticize and to demonstrate (the words on the website had called for a demonstration against France 2) is a very important liberty. In a democracy, you have a right to criticize a journalist.

At this point the body language of all three judges seemed to tell the tale. They all looked down, and they held their arms in a tight and closed position. The procurer was leaning back a bit in her seat with her eyes closed; she appeared to be snoozing, although maybe she was just deep in thought.

Lurçat's attorney went on to say that the video had none of the scenes Enderlin had said it contained, and on that point it was clear that he had lied. (But of course, since the court had never looked at the videotape, this became a case of "he said she said," another unprovable assertion against the great man).

It may be true that every country gets the system of justice it deserves. Legal systems are not arbitrary; they reflect the values of the cultures from which they emerge, rather than being imposed on that culture; then, in turn, they further influence that culture. The French have a legal system that, like most civil law systems (vs. our common law system), emphasize[s] social stability, while common law countries focus on the rights of an individual.” The same could certainly be said of France itself.

As for the wording of the decision, to be issued about a month hence, we can expect something rather perfunctory (I'm still awaiting a translation of the ruling in the first trial, which I should receive soon). After all:

...common law opinions are much longer and contain elaborate reasoning, whereas legal opinions in civil law countries are usually very short and formal in nature. This is in principle true in France, where judges cite only legislation, but not prior case law.

As for the verdict itself, I will go out on a limb--and I think it's a thick, heavy, extremely sturdy limb--and predict that the ruling will go in favor of plaintiffs France 2 and Charles Enderlin. With French law's presumption of guilt on the part of the defendant, even if the trial had been lengthy and much evidence had been amassed, it would have been an enormous undertaking to try to legally prove that the defendants were absolutely correct in their assertions that France 2 and Enderlin were lying.

Of course, in the somewhat similar David Irving trial in England, where defendent Lipstadt was sued for defamation by "historian" Irving for having called him a liar and holocaust denier, defendant Lipstadt won her case against great odds. As I previously wrote:

British libel laws are notoriously skewed in favor of the plaintiff, and Irving fully expected to win or to force Lipstadt to settle for a tidy sum. But Lipstadt's publisher Penguin, to its everlasting credit, decided to spare no expense to defend her, and itself.

Historian Richard J. Evans was hired by Penguin as a consultant, and became the star witness for the defense, which was ultimately victorious. They mounted the risky strategy of asserting that everything Lipstadt said about Irving was in fact true, which meant that the burden of proof was on them to prove it to be so. And yet they succeeded, and a verdict was rendered that stated unequivocally that Irving was indeed everything Lipstadt had alleged, and more (or, one might say, less).

What's the difference between the Irving-Lipstadt trial and this one? After all, the British defamation law under which the Irving trial was held shares with French law the (in my opinion abominable) presumption of guilt in the defendant. The difference between the two is the gravity with which the British court approached the case, and the built-in relative fairness of the British laws of discovery.

Of course, it didn't hurt that Lipstadt's defense had access to contributions of money in addition to the funds Penguin was willing to spend--fighting Holocaust denial apparently being a more popular cause than fighting modern-day blood libels--and there were famous lawyers on their side. But part of the credit for the positive outcome of the trial is due to the British court system's emphasis on evidence and discovery--for example, Irving was forced to enter his private papers into evidence, and they became a pivotal part of the defendant's case.

But back to Lurçat; the irony abounds. I couldn't help but think this was truly a topsy-turvy Alice in Wonderland world. It's a world in which the famous journalist is forgiven his errors, for making statments--such as the one about the IDF doing the killing, or saying he had videotape of the boy's death throes when no such tape exists--that are either markedly negligent (the first) or outright lies (the second). And the consequences have not just been on the order of hurt pride and reputation (the supposed results of Lurçat's defamation of Enderlin)--oh no!--but death and mayhem of innocent people, and the turning of public opinion even further against Israel.

No thorough investigation is demanded from Enderlin. No, it's Lurçat who needs to launch the thorough investigation--against Enderlin, before calling him a liar.

I've been accused of stirring a tempest in a teapot by writing about this. After all, why all this verbiage about an insignificant trial in a place like France, where everyone knows justice is compromised and the status quo is protected by the legal system? I'll tackle the answer in Part III.

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