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Diana's Guard Can't Recall Paris Crash

By Charles Trueheart
Washington Post Foreign Service
Saturday, September 20, 1997; Page A01

PARIS, Sept. 19—French investigators today questioned Trevor Rees Jones, the lone survivor of the Aug. 31 auto crash here that killed Princess Diana, her friend Dodi Fayed and chauffeur Henri Paul, and found that Rees Jones has virtually no memory of the accident.

The seriously injured Fayed bodyguard had been regarded as a potential major witness to the accident. But French and British official sources said after the half-hour hospital interview that Rees Jones has been able to remember almost nothing of any value to the investigation. Amnesia is typical among survivors of such catastrophic events.

With that expected source of dramatic revelations apparently dry, the most closely watched criminal proceeding since the O.J. Simpson murder trial may turn out to be considerably less spectacular than the tragedy that prompted it.

The international spotlight is on the French system of justice as never before, and what the spotlight finds may be unfamiliar to Americans and others looking on: a more secretive and disciplined process than what is common in the United States, and probably a less contentious and theatrical one as well.

In contrast to the adversarial system characteristic of U.S. and British law, French law for some 400 years has been distinctively "inquisitorial": that is, coolly directed from the bench in a quest for truth rather than hotly slugged out at the bar in a contest of persuasion.

Long before any trial is expected to take place, two representatives of the French judiciary are already at work examining the circumstances of the accident. They are Herve Stephan and Marie-Christine Devidal, who were assigned to the case two weeks ago as its investigating magistrates. It was Stephan who interviewed Rees Jones at his bedside today.

Drawing on the work of the French judiciary police, Stephan and Devidal will spend months -- conceivably as long as a year -- sifting through evidence and hearing testimony to establish the probable causes of the accident and to assess the need to put anyone responsible for it on trial. Nine photographers and one motorcycle driver have been placed under investigation for their possible roles in the accident.

Stephan, 43, and Devidal, 44, have extraordinary powers as investigating magistrates. Part detective, part prosecutor, part judge, their role is a peculiarly European judicial institution that has no real analogue in the U.S. legal system.

They are part of an elite corps of 560 men and women trained in magistrates' school and called by France's highest court to serve in cases at times as judges, at times as state prosecutors, and at times as investigating magistrates. They operate under a strict code of secrecy.

Considering their immense powers and formidable assignments, investigating magistrates operate almost alone. Each is entitled to a bare-bones staff of one clerk. Stephan answered his own phone one day recently when a Washington Post reporter called seeking public background information and politely explained that French law requires him to be "very discreet" about his investigations.

Stephan and Devidal, his junior partner in the case, will direct the full investigation, soliciting testimony and dispatching a sophisticated criminal police squad to collect evidence on behalf of all parties to the case: the French government prosecutor, the families of Fayed and Paul, and the 10 people, most of them photographers, under "formal investigation" -- a status short of a U.S.-style indictment.

The 10 are being investigated in connection with their possible roles in two crimes: involuntary homicide, an infraction roughly equivalent to manslaughter, and failure to assist persons in danger, an obligation of any citizen under French law. The maximum penalty for involuntary homicide is five years in prison and a fine of about $83,000; for failure to assist an accident victim, seven years and about $116,000 in fines.

At issue in these two sets of charges is the behavior of the paparazzi just before and just after the accident. The investigating magistrates must conclude whether it is their "personal conviction" that photographers contributed to the accident by hindering or otherwise affecting the trajectory of the car, and whether in the moments after the crash the photographers failed to help the victims.

As evidence continues to mount that Paul's faculties were heavily impaired by alcohol and antidepressants in his bloodstream -- his family's lawyer already has stated he should not have been behind the wheel -- and as it becomes clearer that the photographers were far behind the Mercedes at the time of impact in the tunnel, the charge of involuntary homicide may become more difficult to prove, lawyers and a former investigating magistrate said in interviews. However, the actions of the photographers may remain a contributing factor in the behavior of the driver.

But the charge of non-assistance to injured persons is more serious under French law and remains at issue, reflecting a significant difference between American and French jurisprudence.

In most U.S. states, "good Samaritan" laws encourage people -- doctors in particular -- to come to the aid of injured people by protecting them from negligence lawsuits in case they inadvertently worsen the injuries or cause injured persons to die. French law, by contrast, requires assistance to be rendered by anyone -- even those without medical training -- passing the scene of an accident, and courts have been severe in punishing passersby who fail to do so.

If Stephan and Devidal conclude that either of these laws probably was broken, they can, with the state prosecutor's concurrence, call for a trial. If the photographers are tried, a new panel of three judges will preside. They will decide whether to convict or acquit -- any dissent will remain secret -- and levy jail terms and fines. Except in more serious criminal cases such as murder, there are no citizen jurors. Ninety-five percent of cases sent to trial by French investigating magistrates end in convictions.

Whereas the current investigation probably will be long by American standards, any trial that follows would be markedly shorter. An American analogue is an oral argument before the U.S. Supreme Court: Because the judges rely mostly on written pleadings, and the lawyers and other parties are held to strict time limits in their oral presentations, the public trial phase seldom lasts more than a few days.

In this relatively straightforward case, according to a prominent French lawyer, Daniel Soulez Lariviere, it might last no more than a couple of afternoons. "It's like an opera that's already written, and it plays out quickly," he said. The trial is open to the media and the public, but television is barred from the courtroom.

The three judges then retire -- for as little as a few weeks and as much as a few months, depending on their caseloads -- to ponder a judgment and decide on convictions, jail terms and fines. In another striking contrast to the American system, they then change hats and sit as judges in a civil proceeding at the end of which they can award damages to the civil parties.

"The civil case is piggybacked on the criminal process. It's a very economical way of resolving contentious issues. You only have to go through it once," said a Paris lawyer with experience in U.S. and French criminal cases who asked not to be identified.

In this case, Dodi Fayed's father, Egyptian tycoon Mohamed Fayed, is the major civil party, and thus far he is seeking unspecified damages against the photographers for what his lawyer, Bernard Dartevelle, calls "voluntary violence" against the private life of his client. The other civil party to the case is Paul's family.

The executors of Diana's estate, her mother and sister, have hired lawyers who have dispatched a "special envoy" to observe the proceedings, but they are not -- as yet -- civil parties to the case. Neither is the family of Rees Jones.

Civil parties have major status during the course of the criminal investigation. They have full access to the investigators' files and can propose avenues of inquiry to the investigating magistrate, who must consider them seriously. Unlike the witnesses in a potential trial, neither the defendants nor the civil parties testify under oath.

There are no punitive damages in French civil law. The liability of the Ritz Hotel for the accident and whether it could be forced to pay other damages to families of the victims are matters that would be decided, if at all, after the criminal phase of the trial. The insurance policy that covers the Ritz as Paul's employer would pay civil damages that are unlimited theoretically, but in practice are modest by American standards -- typically around $1 million for the seriously injured, and about half that for relatives of dead persons, said French lawyer Jean Francois Le Forsonney.

Although the crash of the Mercedes was, strictly speaking, a traffic accident and no more, the notoriety of the passengers was such that the elite criminal brigade was brought in immediately to investigate. They are part of the judiciary police force that is now taking direction from the investigating magistrates.

The independence of the investigating magistrate from political pressures is a matter of both opinion and varying circumstances. The detective work, for example, is performed by the judiciary police who work for the French Interior Ministry and are thus more directly subject to political influence.

The state prosecutor and the nominally independent investigating magistrate occasionally clash; if their disputes are serious enough, they can be resolved by the French court of appeals.

One Paris lawyer speculated that the French government would not be satisfied with a murky or unresolved conclusion to this case, let alone a decision not to bring some or all of the photographers to trial. "There's been too much noise about this. The public needs an explanation, and a plausible one if possible," said Jean-Luc Imbert. "And it won't be enough just to say the car was going too fast."

Lawyer Soulez Lariviere said the issue is not the magistrates' independence from the power of the state but from the power of the press. "Newspapers would like to dictate the conduct of this investigation," he said.

Correspondent Anne Swardson contributed to this report.

© Copyright 1997 The Washington Post Company

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