Significant Moments: Eliciting Incriminating Evidence From An Innocent Man

Among the few Jewish officers in the French army was Captain Alfred Dreyfus, who had risen to a post on the general staff. . . . On October 15, 1894, Captain Dreyfus was arrested on the charge of selling French military plans to the German government.
Solomon Grayzel, A History of the Jews.
Du Paty invited Dreyfus to fill in the identificatory section of his inspection form, as his aides looked on. Then du Paty, whose right hand was covered by a black silk glove, said to Dreyfus: "I have a letter to write and present to General Boisdesffre for his signature. I've hurt my finger. Can you write it for me?" Dreyfus agreed to the odd request, and sat down at a small table, ready for the dictation.

It was then that Commandant du Paty, leaning over Dreyfus, dictated to him a meticulously composed text.

Paris, October 15, 1894

Having the most serious reasons, Sir, for temporarily retaking possession of the documents I had passed on to you before taking off on maneuvers, I beseech you to have them brought immediately to me by the bearer of the present letter, who is an individual to be trusted. . . .

Du Paty continued his dictation with deliberate slowness.

"I recall for your benefit that it is a matter of:

1. A note on the hydraulic brake of the 120 cannon on the manner in which. . . ."

At that moment du Paty brutally interrupted the dictation. "What is the matter, Captain? You are trembling!" "My fingers are cold," answered Dreyfus, who continued to write. "My fingers were cold," Dreyfus would later write, "for the temperature was quite chilly outside, and I had been in a heated room for only a few minutes."

Why did Du Paty suddenly challenge Dreyfus? "To unsettle his self-assurance," he would later claim, attributing to Dreyfus alternatively a revealing agitation and the perfect calm of a polished fraud. Dreyfus awaited the rest of the dictation. Du Paty addressed him still more brutally. "Pay attention. This is serious." Dreyfus was offended by the harshness of the bizarre remark, but he continued to write in response to the dictation, attempting to "write better."

"it functioned in maneuvers;

2. A note on covering troops;

3. A note on Madagascar."

"Dreyfus had regained his composure," Du Paty would write. "It was useless to pursue the experiment." Whereupon du Paty rose, solemnly placed his hand on Dreyfus's shoulder, and . . .
Jean-Denis Bredin, The Affair: The Case of Alfred Dreyfus.
. . . in a tone of great contempt . . .
Lewis Carroll, Through the Looking-Glass.
. . . spoke these words: "In the name of the law I arrest you. You are accused of the crime of high treason."
Jean-Denis Bredin, The Affair: The Case of Alfred Dreyfus.
One of the impressive things about paranoid literature is precisely the elaborate concern with demonstration it almost invariably shows. One should not be misled by the fantastic conclusions that it is not, so to speak, argued out along factual lines. The very fantastic character of its conclusions leads to heroic strivings for "evidence" to prove that the unbelievable is the only thing that can be believed. . . . But respectable paranoid literature not only starts from certain moral commitments that can be justified to many non-paranoids but also carefully and all but obsessively accumulates "evidence."
Richard Hofstadter, The Paranoid Style in American Politics.

______________________________________________________________________

On October 29, 1991, after Dennis Race advised me of my termination, Mr. Race had me sift through two boxes of my personal effects in the presence of my supervisor in Mr. Race’s office. The two boxes containing my personal effects had been housed in the terrace level of the building, and had presumably been brought up to the fourth floor and placed outside Mr. Race's office before he called me to his office to advise me of the decision to terminate. The presumed purpose of having me sift through the contents of the boxes was to elicit and gauge my reaction. At three points Mr. Race, sitting at his desk and appearing to read something, registered a nonverbal vocalization as I reviewed my personal effects: (1) at the point I identified to my supervisor and handed over to her my Lexis and Westlaw ID's; (2) at the point I asked my supervisor whether I could keep my job evaluations; and (3) at the point I discarded my Walkman radio and said to my supervisor regarding the radio, "it doesn't work."

Mr. Race's action of gauging my response strongly indicated that the review of my personal effects had been planned in advance with the intent to determine what response the interaction would elicit. Any evidence so gathered would have been gratuitous because regardless of how I reacted, my reaction would in no way alter the decision to terminate. In all probability the review of my personal effects in Mr. Race's office was motivated by an intent to shame and enrage me and, ultimately, to provoke an outburst. It is likely that Mr. Race sought to elicit damaging statements and/or behaviors from me that might provide a post hoc justification for a termination that Mr. Race knew had no factual justification ab initio. The presumed attempt to provoke an incident following the notice of termination strongly indicates that Dennis Race knew that the termination was not justified in fact, and that any evidence he might elicit from me at the time of the termination would prove useful to the firm if the firm were later called upon to defend management's knowingly wrongful decision to terminate. In short, Mr. Race's attempt to elicit incriminating evidence--after the decision to terminate had already been made--constitutes a tacit admission by the firm that the decision to terminate was indefensible, unjustified, and unlawful.

Freedman v. D.C. Dept. Human Rights, Record on Appeal at 529.