The Dominici affair, by juge Carrias
7 – Would I have sentenced Gaston Dominici to death ?
This question came to my mind when I was writing the section on intimate conviction, and all the principles involved were brought back to me. At the time it was not something I gave any thought to. My duty as a judge was not in fact to judge people but simply to determine whether charges could be laid against them to send them to for trial. However, it is a question that is now on my mind. At the end of a career in which I carried out many investigations I also sat as a judge on both civil and criminal courts. This is all probably a futile exercise, but it is the only way I have of measuring the solidity of my intimate conviction of Gaston Dominici’s guilt. Would it have led me to sentencing him to death?
o The death penalty
Part of the answer is easy: the death penalty would have been out of the question because even before I became a magistrate I was resolutely opposed to it and I have never changed my mind about it. This is why I was very happy that Gaston Dominici was pardoned.
It seems to me that there is only one argument in favour of the death penalty and that is that the price of a ‘contract’ killing to get rid of the enemy of someone who is too cowardly to do it himself has come down. But against this one ‘pro’ argument there are so many ‘con’ that the latter is the out-and-out winner, and I do not think any more needs to be said.
Nevertheless, we must go back to the time of the Liberation of France. I’ve already spoken of the crimes committed illegally at the time. Others were carried out under the appearance of legality. Courts were set up that gave few guarantees to the accused and operated for a short time, that was in fact far too long a time. They handed down many death sentences. Fortunately, many condemned men were pardoned, and, as things calmed down with time, the sentence was commuted into hard labour for life, which was most often reduced to two or three years’ imprisonment. As these condemned men had much on their conscience imprisonment was no great tragedy, even if some remained in jail longer than necessary. Others, who were often not guilty of greater crimes, were executed. They lost in what was no more than a lottery and nothing could be done for them. It was this irreversible nature of the death penalty that made up my mind for me. I was preparing to become a magistrate and I swore to myself never to pronounce the death penalty.
As I was an investigating judge for many years, I did not act as a judge at an assizes court very often, as the two functions are incompatible. And, on the few occasions that it did happen, I never had to judge crimes which carried the death sentence, On the other hand, as an investigating judge I investigated crimes that could have taken men to the scaffold or the firing squad. These were Algerians, who during the Algerian war, carried out killings in Manosque and elsewhere. By sending them to a military tribunal, as the law then required, I used to pray that they would not be condemned to death. My wish was always granted. They were usually given a life sentence but did not remain long in prison after the war came to an end and an amnesty was granted. They were returned to their country where they were greeted as heroes. Their case was similar to that of the men condemned after the Liberation, but with wiser courts and no lottery, so everyone had a winning ticket.
o The sentence
As the death sentence was out of the question, what sentence would I have handed down if I had been the judge at Gaston Dominici’s trial? Today, I’m old and long retired from legal life and I admit that I would have been lenient. But if I had been the judge I would have wanted to carry out my task seriously and be worthy of the trust society had put in me to defend it. The juror’s oath, as we have seen, demands that the interests of neither the accused nor of society be betrayed. Jurors can be put in such a predicament, but for a judge it is a permanent concern and he has to learn how to control his feelings. In order to respect the interests of the accused, he has to acquit him if he is not sure of his guilt, but to respect the interests of society he has to find him guilty if he has the intimate conviction of guilt, and make the punishment fit the crime. Lurs was a particularly atrocious crime. The thought of Elisabeth’s smashed in skull would certainly have led me to handing down hard labour for life.