Part 3: Three Swiss Lawyers and Their Role in Something Rather Unusual

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Distorting and sullying a defendant’s true history

“Did such a scientist even exist?”

Inspired by the Chernobyl reenactment drama series, this blog previously illustrated the first of three parallels drawn between the old Soviet legal system and, remarkably, the Swiss legal system; that is, the intentional concealment of evidence to avoid “State” (here institutional) embarrassment and to preserve an aura of institutional perfection.
In this Part 3 of “Three Swiss Lawyers and Their Role in Something Rather Unusual” we examine Point 2 of the functioning of the Soviet, three-point legal system model, as presented earlier in this blog.

1) evidence strictly controlled;
2) defendant history distorted and sullied;
3) the prosecution, not the judge, controls the courtroom

We examine point 2 again vis-à-vis a libel case brought to a Swiss courtroom.

The key to altering reality in the courtroom, and therefore public perception, is the falsification of the true history of a defendant, when that history does not comport with prosecutorial intent and State or other overriding interests.

The story that is most readily believable becomes the story that is seen to reflect reality, whether true or not. That story will be official and entrained in the minds of the public following a court decision. For that reason, the progression of history and events that are most desirable in making any narrative about a defendant believable– let us call that narrative “Z” here– should logically extend from point “W” to point “X” and to point “Y,” followed by “Z.” A leap in the story from “A” to “Z,” for example from good to bad, is not desirable and could lead to doubt.

The maintenance of this reasoning is exemplified in the narrative presented here, involving our scientist at a Swiss university. His true history of rather impressive science-related successes was concealed and revised in order not to have the story leap from “A” to “Z.” The falsification and revision of his history eliminated the need to examine what were some rather devastating administrative and scientific failures. These failures would have caused embarrassment or worse for hierarchical figures at the university.

What was the scientist’s actual, documented history as concealed by three lawyers in the courtroom?

The scientist in question had initiated and organized the first-ever science slam at the respective university. This event, which presented in-house research to the public in an entertaining fashion, was successful beyond all prediction. Local, nation-wide and even German television and print media coverage followed. This slam was then repeated successfully thereafter each year at that university.

A second, first-ever presentation of research more serious in nature than the science slam, followed. It was called “Weltenreise” (implying journeys around various worlds of science research), held for the public at a local theater. Once again, there was success in conception and organization attributable to the scientist.

The scientist then initiated a new audio podcast, “Sciencetime,” in which researchers were interviewed on their area of specialty. Interest on the part of researchers was keen; a number of podcasts were aired and remain online today.

As already mentioned, this scientist had contributed markedly to the editing and publishing of in-house- and external research papers, including his name as proofer/editor. This was, after all, the specific job for which he had been hired. His achievements were such that outsiders eagerly requested his assistance in editing research papers. Regarding his teaching assignments, student evaluations rated his performance in the outstanding range.

All of the above job performances were concealed from the court. Most significantly, contracts for teaching and editing, of particular importance, were also concealed. Indeed, the fact that he even taught and edited at that university was concealed from the court.

The Soviet Union saw to it that critics of the system were turned into “non-persons.” In Switzerland, a university was permitted to do the exact same thing.  By denying all legitimate roles and contracts, by terminating communications with students and colleagues, well…. was there even such a scientist? And if there were no such scientist, then obviously he could not have been witness to wrongdoing, scientific or administrative.

Perhaps of greatest relevance to this story is a year-long, successful effort by the scientist to rouse interest in in-house research on the part of a renown researcher at the University of California. The research could have been put to good use in a project to develop the first portable dialysis unit. That effort at recruitment led to a material transfer agreement (MTA) signed by the researcher on behalf of the University of California, along with an offer to fund a postdoc position in Switzerland to advance the research in the scientist’s department. This highly positive development, however, coincided with the exposure of related, non-reproducible research that emanated from the scientist’s department, but that had been published in a highly-ranked international journal. This caused serious questions to be raised, but questions that went unasked upon the scientist’s abrupt removal.

Oddly, highly unprofessionally and in a “shoot yourself in the foot” manner, communication with the University of California was also stopped abruptly by the department, for reasons inexplicable unless one is adequately cynical. It appears that the scientist and the University of California were simultaneously blacklisted by the Swiss university. The intended collaboration would have been a gold star, both academically and financially, for all concerned parties. On the other hand, it would also have put to practical test the research that suddenly appeared on shaky grounds. That research, however, had fed the publications beast, nutritiously and expediently.

How can a signed material transfer agreement, its preparation and extensive implications, be concealed from a court and a judge? Well, a witness for the university appears in court – and simply provides false testimony, denying any knowledge of said MTA. The defense lawyers had already refused to present the documented evidence to the court. Thus, conditions were in place to have false history replace actual history. One building block had been put in place to destroy defendant credibility. The other building blocks that followed were the concealment of contracts, denial of teaching assignments, indeed denial of any responsible university position whatsoever on the part of the dismissed scientist.

Why would defense lawyers have an interest in concealing exculpatory evidence in a courtroom? It is true in the USA, it was true in the old Soviet Union, and it held true here in Switzerland: hierarchy has its privilege and provides its reward, status quo has its own inertia.

When the scientist complained to his lawyer about the obvious perjury by a university witness in court, the lawyer explained: “Don’t expect the district attorney to investigate this. That isn’t going to happen.”

And there the issue died. Information on perjury and exposing possible science fraud at a local university was as welcome by the authorities and officers of the court as a polecat at a church picnic. Any notion of ideals related to truth or justice came to a screaming, screeching halt at the foot of the altar of practical, local politics.

At this point, with the concealment of evidence and the distortion of the true history explained, a reader may be well thinking: were these results carefully planned, as if part of a conspiracy? How else can one unethical, illegal misstep after another be so closely tuned? A recent opinion column in the New York Times, by Russ Douthat, on the currently fashionable reliance on conspiracy theories as explanation for acts of malfeasance, fits an explanation to this story more aptly than one that reaches for an overall plan:

Sometimes the reality is a conspiracy in full, a secret effort to pursue a shared objective or conceal something important from the public. Sometimes it’s a kind of unconscious connivance, in which institutions and actors behave in seemingly concerted ways because of shared assumptions and self-interest.

 

“… shared assumptions and self-interest” could certainly have led to the outcome described here. Each individual step taken could be explained as the easiest step to be taken by a responsible individual, on the assumption that the scientist had little or no influence or power up against a far more credible and influential hierarchy. Negligence, laziness or fear of repercussions could have been the prime movers here, from the start. Yet this scenario could not have played out without coordination by amoral lawyers who either instinctively knew that burying the truth was best for everyone… or… they phoned each other to make sure that this was understood.

Example: what professor, on his or her own, is going to conceal a signed university contract without being advised to do so higher-up, from e.g. legal sources that assured him or her that this act would pass muster? And what defense lawyer, on his own and without personal motivation, decides it is best to betray a client?

 

Answer: probably none

The failure to present evidence to a court, and thus to the public and the official record, is the single easiest and most significant way in which to skew a legal outcome in favor of the party with the most influence. In this case it was clear: the lone, insignificant scientist who had been dismissed on improper grounds possessed no influence on lawyer lives.

Had defense lawyers actually defended their client in this case, damage would have been done to individuals with the power to make lawyer lives more difficult professionally. For example, had either of two defense lawyers in the case registered a complaint of conflict of interest on the part of the law professor acting in the interests of the university, intra-professional politics could have worked against that lawyer. Professionally, it was a safer bet to betray their own client, even though both defense lawyers recognized the conflict of interest, and realized that their own bodies of professional ethical responsibilities also recognized it.

This conduct is part of what is known as the “lawyer culture of impunity.” In that culture rule number one is “Thou shalt not attack or find fault with fellow members of the profession.”

But regardless of the motivations for the conduct, like the old Soviet legal system, the Swiss legal system has its own way of distorting/concealing evidence. It does so… simply by doing so.

Next blog entry to follow: Part 4. The prosecution rules the courtroom, not the judge.

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