Diary

Agnieszka Kolakowska

Two lessons emerged from my two-week stint of French jury service. The first is that if you want to commit a murder in France, make it as savage as possible: you will have a good chance of getting off more lightly. Keep stabbing until the corpse is in shreds, and a forensic psychiatrist will almost inevitably pronounce the balance of your mind to have been disturbed, and the jury will have to take this into account. The second lesson is that if you are intending to rob someone at gun-point, or using some other instrument of persuasion, do not, under any circumstances, demand anything or try to extract any information. The maximum sentence for extortion with violence is ten years longer than for robbery with violence.

Having crushed his wife’s skull with a dozen blows from a hammer, the defendant in my first trial took up the carpet-scissors, and stabbed her 17 times in the chest. (He was 80 at the time.) The prosecutor remarked that he had rarely come across blood on the ceiling of a murder scene. The pathologist, when asked how, in his view, it got there, said that droplets of blood splattered up from the scissors as they were repeatedly plunged in and out of the body.

The forensic psychiatrist said that although the accused could not be declared clinically ‘irresponsible’ – within, as we used to say, the meaning of the act – the balance of his mind was ‘affected’ at the time he committed the crime. How he came to form this opinion was a mystery; he gave no grounds for it other than the savagery of the act itself, and the fact that the defendant afterwards claimed (as one would) that he ‘didn’t know what he was doing’. The meaning of ‘affected’, too, remained obscure. Yet the jury was bound to acknowledge this temporary mental imbalance (conveniently coextensive with the act itself) as a possible mitigating factor when the time came to decide on the length of the sentence.

Thus a brutal murder entails its own mitigating circumstance: if you smashed someone’s skull in with sufficient force, the balance of your mind was by definition disturbed at the time. A similarly circular logic is perhaps applied in English courts, although in England (in part because of the adversarial system) the pronouncements of expert witnesses may not always be accorded the same unquestioning faith, if only because there tend to be expert witnesses representing both sides. I wonder if in the French case there is a connection with the reasoning behind the leniency with which the courts used to (and to some extent still do) treat the notorious crime passionel. At any rate, no one seemed to think there might be any justification for doubt on the testimony of an expert witness.

That a curiously harsh penalty is imposed for extortion emerged during my second trial. Two men had raped a girl at knife-point and, finding credit cards in her purse, forced her to reveal her PIN in order to get cash from a machine. The severity of the penalty, which the judge explained by the degree of humiliation involved, appears to be a peculiarity of the French criminal code. Interestingly, it accords with our intuitions: it is somehow worse, if only marginally, to be coerced into handing something over than simply to have it taken away from you. But worse by ten years’ worth of penal servitude? And is the law really there to express our intuitions? Something else is odd, too, about this explanation: rape would seem to rank high on the scale of possible humiliations, yet the maximum sentence in France for rape is only 20 years – the same as for robbery with violence. For extortion with violence it is 30 years. The disproportion is bizarre, and shocking.

French trials by jury take place only in the most serious criminal cases: murder, rape, armed robbery, paedophilia. Terrorist trials also used to be by jury, but attempts to intimidate prospective jurors were apparently so successful that the required numbers could not be found. French courts tend to be accommodating in this respect; most reasonable pleas to be excused are accepted. On my first day only one was rejected. A woman who had lived in France for about twenty years and was (like me) French by marriage, declared that she was not ‘really’ French, because she came from a different society and could not understand French ways. Where, we all wondered, did she come from? Holland. Both the judge and the prosecutor behaved with admirable restraint, observing mildly that there weren’t two categories of French citizen, ‘real’ and ‘not real’, and expressing their confidence that her view of things would greatly enrich and contribute to etc.

About forty of us were left after the selection process, from whom a jury of nine (12 in appeal cases) would be constituted at the start of each of the four trials scheduled for the two-week session. There is – perhaps largely because the system is not adversarial – no further weeding out: no endless hanging around waiting for questions to be put, family histories probed and possible biases exposed. Each jury is drawn by lot once the court is assembled; prosecutor and defending counsel are allowed respectively four and five summary challenges, based only on the meagre clues supplied in the list of jurors – name, age, occupation – and whatever can be surmised from the juror’s appearance as he rises and approaches the judge’s bench.

And there, if he is not turned back during his progress across the courtroom, he takes his seat: alongside the judge. This is perhaps the most immediately striking difference between French and Anglo-Saxon courts: the judge is also a juror, on an equal footing. He knows the dossier, directs the trial and, later, can enlighten the jury on points of law, but he deliberates and votes with them; he has one vote like everyone else, on both the verdict and the sentence. Or one might put it the other way round and say that the jury members are also judges. In the inquisitorial system, the trial – given that the investigation is complete and all the facts are known – is mostly for the jury’s benefit: an occasion to present the facts to us rather than to establish them. If at any point during the trial we want to question the defendant, or a witness, or an expert witness, we pass the judge a note and he will allow us to do so, or (more commonly) ask the question for us; notes flew back and forth during both my trials.

During the deliberations (the content of which I am sworn by oath not to reveal, but I imagine I can say this much about their structure) the judge will disentangle legal points and organise the discussion; once the sentencing stage is reached, he will once again go over the rules and explain the possibilities. He will express his opinion briefly and only after everyone else has spoken. Two magistrates, who in court sit beside the presiding judge, bring the total number of jurors up from nine to 12 and in appeal cases from 12 to 15; they also have one vote each. One of them is there to sum up the legal issues and to make sure that the judge doesn’t attempt to persuade us of anything outrageous. I have no idea what the other one is there for.

On the whole the system seems to work remarkably well. My judge was extraordinary: dedicated, patient, humane and immensely helpful. On the first day he spent more than three hours explaining (with remarkable enthusiasm, given that it must have been the thousandth time he was doing so) the rudiments of the rules of evidence, sentencing and procedure. The jurors were a serious, literate and articulate group. After the depressing stories I had heard from friends who had served on juries in England and America – about jurors who couldn’t follow the proceedings or couldn’t be bothered to, or who took against a defendant because they didn’t like the look of him – I was impressed by the level of discussion. And although everyone was exhausted after two weeks of 12-hour days in court and deliberations which sometimes went on well past midnight, no one was cynical or apathetic or bored.

A French court is generous towards the accused, who is allowed to plead all manner of often contradictory things: insanity, diminished responsibility, irresistible urges, legitimate defence, provocation, and anything else he and his counsel can dream up. The jury must consider all these possibilities and return a verdict on each. And, of course, on the question of premeditation. The defendant may avail himself of his right to be obstructive and contrary. My wife-murderer decided at one point that he was unable to hear any of the questions put by the prosecutor, who in the end threw up his hands and asked the judge to repeat each one. The exchange that followed resembled a children’s game. It went more or less like this: ‘Did you, in fact, do such-and-such?’ ‘Who, me?’ ‘Yes, you. Who else?’ ‘No, it wasn’t me.’ ‘So why did you say a minute ago that you did?’ ‘What?’ ‘Monsieur le juge, would you kindly repeat the question?’ ‘Answer the question.’ ‘Who, me?’

If the defendant rambles, the judge must be very careful about attempting to cut him short: the defence may seize on the opportunity to claim that his client’s rights have been violated and demand that the judge declare a mistrial. At times, especially in appeals when the case for the defence seems hopeless, counsel will try his best to make this happen, for example by trying to smuggle in inadmissible evidence. As a result, the court can turn into a circus: at one point proceedings were suspended as everyone began roaring at everyone else and the prosecutor, purple with rage, stormed off in a huff. The defence will also seize on any opportunity that may be provided by the behaviour of the jury, so we were instructed not only to refrain from displays of incredulity, astonishment, hilarity etc, but also never to speak to the prosecutor, not even to ask him the way to the loo if we bumped into him in the corridor.

The relative flexibility with which proceedings are conducted is perhaps another consequence of the inquisitorial system – a sort of balancing mechanism after the investigation that came before. At any rate, it seems rather better than the adversarial system at establishing the facts, while still protecting the defendant’s rights. Swarms of lawyers don’t buzz around menacingly during the pre-trial investigation; witnesses – to whom there is supposed to be no access – are not coached until they no longer know what they are saying; juries don’t flounder in a morass of legal issues they don’t understand. And the process is swift: the investigation may take months or even years, but a murder trial can be concluded in three days. In the end, with or without a jury, my impression from those two trials (as well as two others I observed) is that a better result is achieved: justice seems to have a greater chance of being done.

The accused of course also benefits from the concept of conviction intime (the ‘inner conviction’ that the accused is guilty). The judge in his initial explanations mentioned the idea of reasonable doubt as well, although he did not make any attempt to explain it. Conviction intime is arguably a slightly less fuzzy concept, in that it manages to avoid the problematic notion of reasonableness: no one seemed baffled by it. But despite the different approach – positive rather than negative – and even granted that we are a bit clearer about what it means to be convinced than what it means to be ‘reasonable’, it is still an appeal to the common sense of the jurors, and seems in the end to come down to much the same thing.

There are maximum sentences but (so far as I could see) no minimum ones. And sentencing seems lenient: the prosecutor in both my trials asked for more or less half the maximum sentence, and in both that is more or less what he got. On the other hand, not only are previous convictions admissible in court, but all court appearances, even if they resulted in an acquittal, can be brought up. Thus we were told that our wife-murderer had dispatched his son in a very similar way (by stabbing him repeatedly in the back with a large knife) ten years before he decided to attack his wife: he was acquitted, on grounds of legitimate self-defence. Perhaps this happy outcome encouraged him in the belief that his luck would hold. If so, he was mistaken; we gave him 12 years.