Swiss court follows easy narrative, eschews difficult facts
“Switzerland, it is said, suffers less from corruption. Does it really? Or does it suffer less from the revelation of evidence of corruption?”
“The defendant had no choice but to defend himself without defense evidence having been submitted to the court and without legal advice from his lawyer.”
(This essay condenses some of the general principles of legal system dysfunction described in the book Lawyers Broken Bad (www.lawyersbrokenbad.com), which exposes how psychology trumps law in legal cases and in courtrooms, both in Switzerland and the USA.
Facts exhibit a tenuous nature in relation to the perception of reality. They can even be irrelevant. Consider such movements as denial of vaccine efficacy and climate change. Recently, USA elections have put this issue in stark relief in a manner never witnessed before, far on the way to astonishment … that facts can mean so little to human judgment.
But if facts don’t matter, what does?
Neuroscience is helping explain what many of us have discovered through experience– a phenomenon mankind has confronted, even if subliminally, since the dawn of societies: when the king has no clothes, woe to those who acknowledge that fact. Essayist Elizabeth Kolbert explains this irrationality in her New Yorker article “Why Facts Don’t Change Our Minds. New discoveries about the human mind show the limitations of reason.” (http://www.newyorker.com/magazine/2017/02/27/why-facts-dont-change-our-minds)
My latest book, Lawyers Broken Bad (www.lawyersbrokenbad.com) explores the phenomenon of the disjuncture between facts and truth-as-defined in relation to the USA and Swiss legal systems. The gap between evidence and the perception of truth-has been destructively apparent in the USA legal system for years, but it also exists in Switzerland.
What then defines truth to the human mind if not facts? Too often, it is simple narration, at least at the first go-around. Narratives in one form or another comprise our lives. We attribute veracity to stories that comfort us, or “make sense.” Narratives can “make no sense” when they cause emotional discomfort. Facts, of course, can cause emotional discomfort, ergo facts can make no sense.
On the map of the human mind, as explained by author and Nobel Prize winner Daniel Kahneman in his smashingly explanatory bestseller “Thinking Fast and Slow,” the high road is not the first road taken by the human mind; the first road taken is the easy road in terms of mental comfort. How many of us take the easy road? Well, do you take the elevator or do you walk stairs?
There are professionals who earn a living by imposing easy but false narratives. In the legal system, too often these people are called lawyers and prosecutors. They do significant damage to individuals and communities by supplanting facts that lead to a false conclusion, with contrived but simple narratives. If you look below the surface, these individuals fit into the definition of “cowardice,” but in the careful guise of service to tribe or “protecting the institution” as it were.
Take this Story #1: A man sexually harasses a woman at a Swiss university, necessitating removal from his position with utmost haste.
Now, Story #2: In violation of university guidelines, three German professors level a false accusation of sexual harassment against a scientist at a Swiss university, removing the man with utmost haste. The local district attorney later conceals the false accusation, protecting the university and the three German professors.
The first story satisfies in summary, implicating only one person (a bad man); the second leads to a “shit-storm” of troublesome questions for important people, including scientists and professors.
What can separate the two stories in terms of “truth?” The answer is obvious: the presentation of facts. However, facts can cause mental anguish. The manipulation of evidence is far easier. Therefore, a prime goal of corrupt lawyers and district attorneys has become concealing evidence; these professionals succeed in presenting a comforting narrative that belies truth remarkably frequently.
What is the evidence that speaks in favor of Story #2 above and against Story #1?
The scientist in question had recently raised challenges on the quality in research in science publications; he also came across information detrimental to his supervisors, including the illegal transfer of university assets to a foreign laboratory and ethical violations by administration involving a politically motivated threat to the completion of a doctorate. A reporter for NZZ media group was investigating.
But if the man could be removed under suspicion of sexual harassment …
An accusation of sexual harassment against one scientist does not necessitate the termination of a major scientific project, but the danger that scientific claims might be demonstrated to be false by outside researchers who would try to apply that claimed science … certainly could.
There is plenty of evidence: wholesale violation of published university guidelines permitted no defense to the accusation of sexual harassment; the female accuser, who had made a vague claim substantiated by false evidence promulgated by the professors, simply vanished from the scene. She was not permitted to undergo scrutiny or questioning. When no evidence of sexual harassment was (or could be) put forth, the local district attorney then misled the public by claiming that the incident never occurred; i.e. no one had been accused of sexual harassment. Yet note the effect: the employee had been removed and silenced.
There is more: scientific editing/teaching contracts were concealed or violated; a complete communications blackout (immediate suspension of email account, phone) was imposed directly following the dismissal, under threat to employees and students; ongoing science papers and projects were terminated, including with the University of California, without notification to the external researchers;
In court, a scientist involved in the improper transfer of assets to a foreign lab and the cover-up blatantly lied (she knew she was not telling the truth), in direct contravention of documentation stating otherwise. (From where does such confidence arise?)
The defense lawyer refused to present documentary- and witness evidence of career-ruining, institution-questioning conduct. (He threatened his own client!) A law professor misled the court, claiming there were no employment contracts. (How would someone teach at a Swiss university without a contract?). In fact, one contract was deliberately concealed, the other just ignored.
The accused scientist was hauled into a Swiss court, for sending self-defense emails to associates that revealed the deceptive narrative of sexual harassment promulgated by the three German professors. He was accused of libel. But a funny thing happened at the trial: no accusers showed up! and no prosecutor! It was all left to the judge and a law professor representing the non-existent plaintiffs. The judge had allowed the defense lawyer to quit the case just before trial, thereby concealing evidence detrimental to the university.
And indeed, it gets worse. The judge then took it upon herself to accuse the man of sexual harassment, despite the fact that the district attorney stated officially that there had been no accusation of sexual harassment. The charge to be adjudicated in court was libel. Yet the defendant had no opportunity to justify his writings due to absent evidence and… the absence of a defense lawyer.
The original lawyer quit the case unethically when his client stood up to his threat of “punishment” and insisted he do his job professionally. The new defense lawyer was not granted a request for preparation time, and therefor declined to attend the trial.
The defendant had no choice but to defend himself without defense evidence having been submitted to the court and without legal advice from his lawyer.
It was Wounded-Knee all over again in that Swiss courtroom, courtesy of an ethically oblivious judge and a law professor who obviously required his own refresher course. (What, pray tell, had he been teaching his Swiss law students?)
Story #2, as clearly evident now, is not suited to “fast thinking,” as Kahneman described in his book. That attribute is precisely why Story #1 was expected to succeed. The tool of sexual harassment is favored in such cases because it creates shame instantly.
In USA, the prosecutorial mantra has become: That witness must never testify; that evidence must never see the light of day in court. And where are the defense lawyers? Hiding; career is a lifetime, a client comes along like a metro bus.
How is it possible for such massive dysfunction to arise in a legal system supposedly governed by rules? The false narrative was introduced, and no one had the courage to tell the king he had no clothes.
If this case is more than anecdotal (there are strong arguments to show that it is), then the Swiss legal system has simply torn a page from the USA playbook.
Switzerland, it is said, suffers less from corruption. Does it really? Or does it suffer less from the revelation of evidence of corruption?
For more on this, please see www.lawyersbrokenbad.com or facebook.com/mark.inglin