Part 4. Three Swiss Lawyers and Their Role in Something Rather Unusual.

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The prosecutor, not the judge, controls the courtroom

This blog entry examines Point 3 of the three-part model of the legal system in the old Soviet Union as compared to the Swiss system:

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

Points 1 and 2 have been discussed previously.

While common perception considers a judge to be the neutral arbiter of conduct and applicable rules in the courtroom, in the Soviet Union the prosecutor represented the practical extension of the interests of the State. These were paramount. Thus, the judge was expected to fall in line while conducting the proceedings, as per the wishes of the prosecutor.

It can be safely assumed that “consultation” that valued political interests were discussed in private, in judge’s chambers, in the Soviet legal system. The upcoming procedure in court was to be orchestrated to blend in with the veneer of theoretical law, as show for the public. Realistically, even if theoretical rules of law were blatantly violated in the courtroom, who would dare to report this? And to whom, exactly?

In the case at hand, a libel case involving a Swiss university, obviously we cannot know what was discussed or by whom in back rooms. All we know is outcomes.

To begin with, for the sake of neutrality, one might expect a judge to grant a new lawyer a few weeks to prepare for a case that had run for two years, a case that was abandoned several weeks prior to trial by the first defense lawyer. That lawyer refused to provide exculpatory evidence for his client. Beyond that, he had threatened the scientist-client with “punishment” if he insisted on presenting evidence that placed the university in a bad light.

The judge was requested to hold the initial defense lawyer to his professional duty: but the request was denied. The judge was asked by the new lawyer for a few weeks preparation time: but the request was denied.

There is no argument; these actions by the judge favored the prosecution. Independent lawyers not involved in the case found the judge’s actions highly unusual. But those actions did serve the purpose of obfuscating evidence detrimental to the university. The scientist had no choice but to enter the courtroom without legal representation, without the proper presentation of evidence and legal counter argument to any adverse claims raised. The reason? The new lawyer who had been denied preparation time had consequently refused to attend the trial!

But something more sinister emerged at the end of the trial, a surprise of sorts. The initial reason for the scientist’s dismissal from the university and the order to abandon the campus permanently within 48 hours had been … an accusation of sexual harassment. But that accusation had been found meritless, followed by the official pronouncement that there had never been an accusation of such at all (presumably to prevent the accusers, three university professors, from facing charges of false accusation). There had thus been no reason to discuss the sexual harassment from a legal perspective, and the new lawyer explained that sexual harassment could not be on the legal agenda. Yet toward the end of the trial for libel, the judge made reference to the accusation, blamed the scientist, and presumably factored it into her decision.

There had never been a charge of sexual harassment, as had been officially decreed by the district attorney’s office. Yet precisely that charge was used by the judge to inflict… what exactly? What was the point of its mention? Can we speculate? As a source of shame to put the scientist on his heels, and a back-door reason (wink-wink) for why the scientist was “really” thrown off campus?

Surely, accusing a defendant in a libel case of a criminal act already denied officially as even having taken place and never legally charged to begin with… was a sop given straight to the… well, not to the State… but to the prosecutor, who looked out for the welfare of the institution. That is, to be clear, the prosecutor all along was the same law professor who represented all three professors, three professors who had issued the accusation of sexual harassment that emerged later as bogus, an accusation that was then neatly expunged, thereby precluding any legal action against them.

At a legal appeal that followed, this time in the attendance of the second defense lawyer– the lawyer who had assured the scientist that there was no need to prepare for the sexual harassment allegation, and thus no opportunity to set the record straight– the hearing featured a judge making reference again to the fact that the scientist had sexually harassed a woman. The lawyer who provided the false assurance that the issue was dead sat placidly, no objection for inappropriate accusations made on an issue declared as non-existent long previously.

These actions by judges, of course, fit Point 2 of the old Soviet legal model: sully the reputation of the defendant in order to eliminate credibility. But this was done here extra-judicially in terms of the purpose of the hearing: libel. Apparently the judge felt comfortable violating ethical rules, as it favored the prosecution. The prosecution even had the defense lawyer in its pocket. And one must wonder, did the defense lawyer know in advance that the issue of sexual harassment would be revisited?

Who would dare to object to any of this? And anyway, to whom would they object?

What about fairness and neutrality? Not on the agenda. If the judge was not taking orders from elsewhere, then that judge had forgotten that fairness is a critical element to justice.

The prosecution, here a university law professor representing three professors, won the day, twice, in two different courtrooms. He did so in a manner that was intended to be kept quiet or denied. To wit: the scientist had been photographed and finger printed, warned not to write about this case.

And what actual role did this libel case serve? Why so much fuss? A few emails to colleagues had hit a dental nerve. Criticism of a Swiss university? Ouch! Inject the Novacaine. Sleeping dogs apparently could not be left as they were.

Much was done to see that the scientist never worked again (e.g. denial of contracts, role at the university), never received compensation for editing work already completed and, perhaps most importantly, also had no further credibility professionally.

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.

Next blog entry: Investigative interview versus interrogation: a visit with the Swiss police.

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