“Every man being presumed innocent”

We spend a morning at the Charlie Hebdo trial; Michelle reads Didier Fassin on a day of criminal court in Paris; and Albert reads E.P. Thompson and lets the sources talk.

Our colleague Sharon Weill, an expert in international law, has been closely following terrorism trials in France for the past couple of years. Since September, she’s taken her students to watch the proceedings of the Charlie Hebdo trial, and at her invitation we joined them on Wednesday morning. 

Some background: in January 2015, Chérif and Saïd Kouachi stormed the offices of the satirical weekly magazine Charlie Hebdo and killed twelve people before escaping. A massive manhunt ensued; the brothers were killed two days later. Their close friend Amedy Coulibaly shot and killed a police officer and later took hostages in a Kosher supermarket, killing four people before he died himself. The attackers, radicalized by Al-Qaeda and the Islamic State, purportedly wanted to punish Charlie Hebdo for publishing caricatures of the Prophet Mohammed. In the wake of the attacks, millions of people in Paris and around the world marched in the streets, holding JE SUIS CHARLIE signs.

Sharon pointed out to us several things that she found peculiar about this trial. For one, all of the figures who had been directly involved in the attack had either died or disappeared. Of the fourteen people on trial, all of whom have fairly flimsy ties to the Kouachi brothers, the harshest charge is being lobbed at Coulibaly’s girlfriend, Hayat Boumeddiene. But she is being tried in absentia: she left France for Syria days before the attack occurred, and has since disappeared. Most of the other defendants have admitted to crimes like gun possession and smuggling, but claim to have known nothing about plans to attack Charlie Hebdo

For another, the presiding judge, Regis de Jorna, has inverted the normal procedure of criminal cases, allowing extensive victim testimony before the accused were questioned. The French legal system has long allowed victims to participate in criminal proceedings as civil (private) parties. But in most trials, Sharon told us, victim testimonies come at the end. De Jorna’s decision reflects the increasing centrality that victims and victims associations have come to play in French (and American) courts in the last thirty years. Both in the US and in France, courts see themselves not merely as judicial mechanisms of eliciting truth, but as therapeutic outlets for victims who seek closure. De Jorna also sees the case as part of a broader public pedagogy: for the first time, a terrorism trial is being filmed and broadcast to an audience at court (although footage will not be made available to the broader public for fifty years), which is how we were allowed to be there.

We arrived at 9 a.m. at the Tribunal de Paris, a new Renzo Piano structure that towers over a busy intersection next to Porte de Clichy, at the northwest corner of the city. It’s a far cry from the old Palais de Justice downtown; entering the lobby, where we were greeted by Article IX from the Declaration of the Rights of Man—Every man being presumed innocent until he has been declared guilty, any rigor which is not deemed necessary for the securing of his person must be severely punished by the law—we were surprised by the brightness and airiness of the building. (We’re devotees of the French police procedural Spiral, which takes place in the old Palais de Justice and uses the trope of gritty claustrophobia to great visual effect.) According to Sharon, a judge told her it feels like “working at a Zara store.” 

As in the Centre Pompidou, also designed by Piano, your eyes are drawn immediately to the escalators, which organize your gaze vertically. The Charlie Hebdo trial was held on the building’s upper levels, but we were directed to a half-full auditorium where it was being broadcast—a surprisingly painless process, like filing into a fancy college lecture hall. 

More familiar with American court hearings, we were struck right away by the centrality of the presiding judge, who dominated the proceeding for the two hours we spent watching, his role more like the one prosecutors play in the U.S. He gave off a professorial air, playing the part of the sharp but affable inquisitor, interspersing jokes among his comments. Sometimes the audience around us in the auditorium, whose attention never seemed to flag, laughed along. 

Another peculiarity of this trial: there is no jury. French criminal cases with sentences over ten years are heard by a judge and jury, but a 1986 law created a “specially composed” Assize Court (Cour d'Assises spécialement composée) to prosecute terrorism cases. These are tried in front of a panel of four judges. Sharon has written about how in France, as in the United States, the ever-expanding definition of “terrorism” has made the powers of the court increasingly arbitrary and exceptional. Courts have adopted a new paradigm of “prevention,” often relying on psychologists to determine the“potential dangerousness” of the accused. Even when there is no material evidence, people accused of “potential dangerousness” can be detained, often for years, waiting in solitary confinement for their trials. As Sharon points out, these procedures directly contradict the principle of the “presumption of innocence.”      

As for the accused in this case, were they actually engaged in “terrorism”? The questioning we saw danced around this point. The defendant Mohamed-Amine Fares, who is thirty-one, has been dealing drugs since he was sixteen and had become a major player in the drug trade in Lille. Acting on an anonymous tip in 2018, the police found several threads connecting him to the Charlie Hebdo attacks. Most damningly, traces of his sister-in-law’s DNA appeared on one of the pistols Coulibaly had used. During the portion of the trial we witnessed, Fares maintained that his business was limited to drugs, that he didn’t mess with guns because they came with a heftier sentence. 

The presiding judge zeroed in on a lie Fares had told when he was held in custody and interrogated—for over ninety-six hours—later the same year: he claimed he had facilitated the transfer of the assault rifle that ended up in Coulibaly’s hands. However, further investigation revealed that this was not true: his sister-in-law’s DNA was on Coulibaly’s pistol, not his AK-47. Fares later admitted that he had made up the story after seeing on TV that Coulibaly had used the latter weapon.

“So why did you lie to the police?” the judge asked. “I incriminated myself,” Fares said, because he wanted to protect his brother-in-law, Souliman, who had been arrested on suspicion of giving Coulibaly the gun. “I loved him like a younger brother,” he continued. They used to do everything together, from working to skiing. He wanted to take the rap for his brother-in-law. 

We missed the next part of the trial because we had to get our baby vaccinated, but as Yannick Haenel and François Boucq report in their daily dispatches for Charlie Hebdo, the image of Fares as a sympathetic family man soon fell apart. He had been married and beaten his wife; later in the day, his defense lawyer intimated that the anonymous tipster who had led to his arrest was most likely Fares’s ex-wife, seeking vengeance for years of abuse.

The French media has portrayed Fares quite negatively. Haenel writes that Fares “traffics in lies”; Sophie Parmentier of France Inter has described him as l’accusé à l’œil rieur, or the accused with a gleam in his eye. This felt especially ridiculous to us: from what we saw, Fares spoke plainly and directly, and his eyes seemed neither merry nor shifty. Nor did he seem like an ideologue, or even someone who minced words. When the presiding judge asked him if he owned any guns, Fares—looking slightly bewildered by the question—replied: “Guns and drugs go together. This is the reality of the streets.” People around us murmured in agreement. He seemed to us like a person caught up in events larger than himself, one for whom radical Jihadism stood only to interfere with his underground livelihood.   

We wrote that account of the Charlie Hebdo trial on Thursday. Yesterday, we read the horrific news of a high school history teacher who was murdered in a town not far from Paris because he had shown Charlie Hebdo cartoons to his students in a class on freedom of speech. He had given students the option to look away if offended. Haenel wrote a moving response to the killing. This is the second terrorist attack since the trials began. Three weeks ago, two men outside of the Charlie Hebdo office were stabbed. A major demonstration is happening today not far from where we live.

We are still trying to make sense of all of this. In the American context, with which we are more familiar, the question of how trials mediate and reflect public passions remains a deeply divisive question. Our instinct now is that the trial exposes the fractures in French society more than it heals them. We hope that we’re wrong.

What we’re teaching this week:

Michelle on teaching Didier Fassin’s work on prisons, police, and the courts:

Last week we mentioned how some of our incarcerated students managed to see humanity in Tolstoy’s Ivan Ilyich, in spite of their bad experiences with judges. This week I thought I’d share a story of a judge in a Paris criminal court. 

In two of my classes, Prison Education Workshop and Punishment, Race, and the Law, we’ve been reading excerpts from Prison Worlds and The Will to Punish by the French anthropologist Didier Fassin, who embedded himself in a police squad in Paris and later a French prison. His investigations were inspired in part by the 2005 uprisings in the Parisian banlieues

The starting point of my research was that from Watts in Los Angeles in 1965 to Tottenham and London in 2011, almost all major urban disturbances during the past half-century resulted from a violent interaction between law enforcement officers and inhabitants of disadvantaged neighborhoods, usually leading to the death of young people belonging to racial or ethnic minorities.

The discrepancy in harassment and arrests is especially stark for marijuana, for which the number of arrests in France had increased to 12,500 cases per year. “I noted that the police were irresistibly drawn toward certain neighborhoods, and adopted an inflexibly harsh attitude toward certain groups,” Fassin writes. Meanwhile, they appeared “systematically to avoid other neighborhoods.” White or upper-class youth seen using marijuana get verbal warnings, but don’t get arrested. Here he quotes a warden observing the racial disparity:  

“During my training, I spent some time with an anticrime squad in the Paris region. I expressed surprise to team members that all the people I saw them check [for marijuana] were blacks or Arabs,” remembered one of the prison wardens.

“‘But it’s because they’re the criminals,’ they told me.”  

Fassin concludes that “what differentiates neighborhoods is not the frequency of marijuana use, but its visibility.” And he takes seriously the idea that actors who punish—police officers, prison guards, judges—occupy a “moral world,” even as some of them do despicable acts. He wants to know how people who punish rationalize their work. A police squad in Paris, he observes, have pictures around their office of The Shield, an American television show that glorifies LAPD officers who bend rules and torture suspects. (No, they haven’t heard of The Wire.) 

Fassin’s comparison of prison guards to police officers is also surprising. At first glance, they seem similar: one group arrests, the other cages the arrested. Both enforce the law. But their jobs couldn’t be more different, Fassin stresses: policework is dull and tedious, with very little justified contact with people on the streets, and perhaps one reason cops harass immigrant youth is simply boredom. (A related reason is disappointment, many having come to the profession imagining they’d become action heroes.) During a rare moment of excitement, he reports, the squad is called to track down a robber all the way across town. When they inevitably arrive too late, an officer blows off steam by stopping an immigrant youth, searching him (unsuccessfully) for drugs, and shoving him around anyway. 

By contrast, Fassin writes, the prison guard has sustained interactions with inmates, and thus access to a broader spectrum of morality. One guard sadistically punishes prisoners who disobey him, but another breaks a rule to allow a visiting wife to see her husband. Fassin also notes that guards and police don’t necessarily see the same hierarchies: for instance, while the Roma are hated on the streets and frequently swept up by cops, they’re the most trusted by the guards in the prison where Fassin embedded himself, and given relatively more freedom. 

In one case recounted in Prison Worlds, a French man of Malian origin in his early thirties is arrested on drug charges. The police stop him while he’s driving (it’s not clear why); he abandons his car in a parking lot, then drops a plastic bag of marijuana on the ground. He starts running, but the police catch him. At the time of his arrest, he has 335 euros on him.

In court, the judge asks: “Haven’t you got an address? Are you homeless?”

The man explains that he’s been living on the street since breaking up with his girlfriend. The judge cuts him off, still frustrated that he doesn’t have an address in his file. She reads out his charges: use, possession, and transport of marijuana; “refusal to comply with an order to stop”; and “violent resistance to persons holding public authority.” Then she says—switching to third person, as if he isn’t there—“So what does he do to pay for his gas? He deals a bit, is that it?”

The lawyers talk. The police officers testify. Even though they’re not injured, they now want to be compensated to the tune of 500€ each—“to hit his pocket, because that’s what’ll hurt him most,” says their lawyer. The man’s defense attorney says he just wanted to avoid being handcuffed, and that the police officers’ own reports don’t show any violence.

The prosecutor points to the defendant’s previous convictions—describing driving with a suspended license as a “vehicular crime”—and asks for a mandatory minimum of twelve months in prison. The defense lawyer asks that the man not be imprisoned now, but rather obliged to appear before a judge again later. She asks that the court return his money and “above all the car, because it is his only home.” The car will help him find work, she explains. And it is winter. 

The judge asks the man if he has anything to add. He hesitates and then, speaking softly, says he knows he’s done wrong but begs to not be sent to prison:

If I go back to prison I’ll backslide. Lately I’ve been trying to get back on my feet. For the sake of my child, and for my commitment to getting myself out of where I am, I ask you to do something to help me. The last time I got out of prison I went back to see my girlfriend, but she refused to let me see my son. She blocked all my attempts—

At this point the judge interrupts. She adjourns the session and says she’ll soon issue a verdict. Mere moments later, she announces he is guilty of all charges. He is sentenced to ten months in prison and ordered to pay 400€ to each of the plaintiffs. He will not get his money or car back.

The defendant pleads again for his car, the only thing he owns. The judge tells him impatiently that if he really wants it he can write the court to ask for it.

Desperate, the man jumps over the lawyer’s bench and scrambles for the door. A dozen police officers go after him. Sirens are heard in the street. The man is caught again and gets twelve months in prison added to his original ten.

An article published the same day makes this incident sound like a sensational, dangerous escape.

But this case is rather quite emblematic. As Fassin notes, three charges—violation of drug laws, road traffic–related offenses, and failure to respect public authority—account for one-third of cases ending in incarceration in France.

There’s so much more to say, but I’ll end with one slightly less depressing tidbit: Fassin was invited to give a talk to a group of magistrates and police commissioners at the National School of Law in Paris, but they didn’t like his proposed title: 

I chose a title which I meant to be as neutral and harmless as possible: “Ethnography of an Anticrime Squad.” When he received it, the organizer of the lecture immediately called and requested that I change it: “They will think you consider them savages,” he explained.

Albert on teaching historical methods and E.P. Thompson:

Almost every fall, I teach a class on historical methods. I try, and fail, to recreate a class I took in college: The Historian’s Craft, taught by Elizabeth Blackmar, a legendary mentor to many historians both at the undergraduate and graduate levels. (Almost all of my classes are stolen from—ahem, faithful homages to—classes I took with my favorite professors; I’m still perfecting my imitation of my graduate advisor Peggy Anderson’s History 5 and History 167B lectures.)  

Betsy made me want to become a historian. She took us to the Columbia University archives to look at documents from the 1960s, and I remember the horrified look on the archivist’s face as Betsy rifled excitedly through the papers, almost ripping a fragile document. (I think she also offended her when she suggested that archivists get in the way. “The archival rat’s dream,” she said, “is to come across a box of unprocessed, unorganized historical materials.”) Betsy infected me with her love for the raw matter of history, the thrill of coming into contact with old documents.

Betsy’s class was old-school: no handholding, no “active learning” techniques. Her method was to give us challenging texts and let us figure out what to do with them. She treated us like graduate students, sometimes assigning us two monographs a week. For one class she assigned E. P. Thompson’s Making of the English Working Class, which clocks in at 848 pages. (She singled me out, knowing my personal interests: “Albert, focus on how he treats religion here.”) Thompson’s account of Joanna Southcott’s cult and the other religious revivals that emerged in that moment—he situates them in relation to the political defeats of radical revolutionaries in the late eighteenth century—shaped how I think about how religious devotion, in particular how it has often served as a substitute for political aspirations.

This semester, instead of selections from Making of the English Working Class (or, heaven forbid, the whole thing), I decided to assign Thompson’s classic article “The Moral Economy of the English Crowd in the Eighteenth Century.” I had skimmed it for a class in grad school, but hadn’t revisited it since. When I did, I was reminded how arresting a writer Thompson can be, in brilliant lines like this one: “Riot was a calamity. The ‘order’ which might follow after riot could be an even greater calamity.” 

That article, written in 1971, speaks to our present moment. Thompson takes issue with the way historians and sociologists use the term riots, which tends to portray them as base reactions to material deprivation. Instead, he employs a dense cultural-anthropological method to recover the “moral economy” of the rural crowds: in the food riots, for instance, he reads calls for justice and fairness, a protest against the tides of market deregulation impinging on traditional means of exchange. He even sees a prehistory of the socialist thought that would emerge less than a century later. 

As subtle and inspired as his interpretations are, Thompson also reminds us that sometimes the best thing the historian can do is get out of the way and let the sources talk. Here’s a piece of rhyming doggerel he cites from 1766, even though it could just as well have been written today:

... there is a small Army of us upwards of three thousand all ready to fight 

& I'll be dam'd if we don't make the King's Army to shite 

If so be the King & Parliment don't order better 

we will turn England into a Litter 

& if so be as things don't get cheaper

I'll be damd if we don't burn down the Parliament House & make all better … 

What we’re listening to this week:

Rowan Williams: Let’s ask what it would be to present to the culture the kind of patient, comprehensive, time-taking, compassionate, emotionally intelligent picture of human selves that Marilynne’s writing so exemplifies.

 Some shout-outs:

  • Rick Tulka, an amazing cartoonist, captures our feelings about Emily in Paris in this caricature. (Some choice quotes from his caption: “This show is like a car crash, you want to turn away but keep looking.” Also: “And how stupid is this Emily?”)  

  • For parents raising teenagers in a global setting, check out this book that was just released, Raising Global Teens, by pediatrician Anisha Abraham.

  • Medical student Jesper Ke writes in “Trust and Tracing” about how Trump’s federal immigration policies are destroying immigrants’ trust in our public health system.

  • Our dear friend Alvin Henry has a book, Black Queer Flesh: Rejecting Subjectivity in the African-American Novel, coming out in January, and we just pre-ordered. We can’t wait to read it.