The Presumption of Innocence and the Assumption of Guilt

Innocent until proven guilty. If ever there were a legal motto that is observed more the breach than in the main, this is it.

The Presumption of innocence is a nice formality, but everyone, and especially conservatives, are generally ready to lock up a criminal who is merely charged with a crime. Regardless of the legal Presumption, there is a factual and common sense Assumption that someone who is arrested and charged is very likely guilty: and it’s neither unjustified, nor in conflict with the Presumption.

What is self-serving and insidious in Dick Renzi’s case is how the legal Presumption is treated as absolute dogma because the person charged has power and authority – and especially because there is an (R) after his name.

Tricky Dick Renzi’s defenders in the GOP insist that Dick is absolutely innocent until the moment the word "guilty" is spoken in court and must be treated as such. Legally, that is true and well. But they insist on extending the Presumption beyond its proper scope, to preclude anyone from reaching the natural and common-sense conclusion that Dick is factually guilty of some very corrupt acts.

Presuming factual innocence is not the purpose of the Presumption. The Presumption is a guarantee of criminal due process, nothing more. The Presumption cannot be invoked to assert Dick’s factual innocence and thus support a conclusion that he be allowed to retain the seat in Congress that belongs to the people of Arizona’s CD 1, not to Dick.

And Dick’s office is an honor, not a legal entitlement.

The Presumption is just a rule that helps enforce our Constitutional values, it cannot be relied on to actually tell one whether an accused is guilty or not. One has to look at and evaluate the evidence for that. Those who are experts at evaluating evidence of criminality, the police and the prosecutors, have concluded that Renzi did in fact commit the crimes they allege. That’s good enough basis for most folks to make a rational Assumption that the man is guilty.

There is a purposeful elision of ideas at work here. The legal Presumption of innocence cannot, and should not be at war with common sense. Common sense indicates that 35-count indictments are not filed against innocent people, except perhaps in a vanishingly small number of cases involving catastrophic mistake or malice. Common sense leads one to the Assumption that a person in Renzi’s position is guilty as hell, not that he’s factually innocent until the magic word is spoken.

And there is no conflict between the legal Presumption of innocence and the common-sense Assumption of guilt.

The Presumption prevents society from pronouncing Dick definitively and legally guilty as charged until he’s enjoyed the full protection of the civil rights our Constitution affords all criminal defendants. But the Assumption still allows us to visit a whole host of consequences upon those accused of crimes, including loss of privileges, loss of freedom, and the social ostracism that should accompany anti-social and criminal behavior alleged by credible authorities, such as the FBI and U.S. Attorney for Arizona. The Assumption is a perfectly adequate basis to say that Dick no longer deserves the trust of the public required to hold the honor of high office.

If we can stick a criminal who is Presumed innocent in the pokey pending his trial because there is very good evidence on which to Assume he’s guilty, we sure as hell can strip a criminal like Dick of an office of public trust on the same Assumption.

A legal Presumption of innocence is important and wise
public policy, but we shouldn’t allow it to be elided into a Presumption of actual innocence, as guilty folks are wont to insist upon. They wouldn’t be charged with a crime if we didn’t have very good reasons to suspect they have broken the law and no longer deserve either trust or respect. When a guy like Dick insists he continue to be afforded the respect due an upstanding member of
society, even after having been charged with very disreputable deeds, he makes even hardened criminals envy his brazenness.

The very idea that a mere multi-year investigation by the FBI, one of the finest investigatory organizations on earth, and a 35-count indictment from the U.S. Attorney’s office, containing enough detail to choke a law student, could be enough to disqualify him from continuing to hold high office is greeted with derision by the GOP, because Dick is Presumed innocent. Please.

Nobody wants to throw Dick in jail or force him to pay restitution – yet – because we respect the Presumption. Many do, however, want to see him step down – because they respect the Assumption.

"But Mike, you are a lawyer. Don’t you think defendants should get the benefit of the doubt?" you ask.

Yes, but I’m not a Pollyanna. Defendants have to prove their innocence in the real world outside of law books. They enjoy a legal Presumption, but everyone in the criminal justice system operates on the Assumption, most especially jurors.

One routinely hears howls of protest by conservatives (and often liberals) when a notorious and obviously guilty criminal is admitted to bail. One can hardly understand what their objection could be: after all, the accused is Presumed innocent until proven guilty by a jury of his peers in a court of law, isn’t he?

Meh. Not so much.

Even in setting bail, a judge has a great deal of discretion to hold the accused in custody when the evidence of his guilt is glaringly obvious. The truth is that the public, and the legal system as a whole, seldom wastes any time treating a defendant as if he were anything but guilty – the system is designed to Presume legal innocence, but to Assume actual guilt.

Most of those who are arrested and charged with criminal activity are, in fact, guilty as hell. Probably over 90% are getting what’s due. And as a result, those in the criminal justice system tend to operate on the Assumption of guilt, despite the Presumption of innocence.

Frequently, the evidence of guilt in a case is very great. The perp got caught red-handed. The officer saw the crime. There was an informant, multiple witnesses, a confession, lots of physical and/or circumstantial evidence, whatever – the accused clearly did the deed. In such cases, the only question for a defense lawyer is how to pull at any loose threads to try to unravel a deal, and how to ensure that the accused is afforded procedural due process. To prevent the system from cutting corners and respect the defendant’s procedural rights, the Presumption applies to all 100%, even though 90% are fairly, and rightly, Assumed guilty by everyone involved.

Tricky Dick is clearly among the 90% who are fairly and sensibly Assumed guilty, and he richly deserves to have visited upon him right now the social opprobrium, loss of respect, privileges and trust attendant upon breaking the law, even as we continue to respect the legal Presumption of his innocence. There is no conflict between these two attitudes, even though there is an apparent logical contradiction between adopting both a Presumption of innocence and an Assumption of guilt at the same time. In practice, that seeming contradiction is the norm.

But when the criminal is a powerful and wealthy and well-connected, like a Congressman, they will attempt to confuse the public into stretching the legal Presumption to combat the people’s common sense Assumption. The only reason they get away with this is because of their privileged position and ability to manipulate the media.

To question the Presumption then becomes unpatriotic, prejudicial, and unwise. The Presumption becomes the bulwark against tyranny, as American as apple pie. And despite the overwhelming evidence of Mr. Mucketymuck’s guilt, nobody had better treat Mr. Mucketymuck like a criminal, because there is a legal Presumption of innocence, after all, don’t you know.

Except, as I’ve pointed out the Presumption simply doesn’t apply to the common sense question of actual guilt, only the evidence speaks to that ultimate question.

And the evidence in this case is overwhelming and damning. The Presumption says nothing about whether we can and should think of him as a corrupt rotter who needs to be tossed out Congress on his ear and prosecuted to the fullest extent of the law.

I certainly don’t want Renzi thrown in jail without a trial, but I sure as hell don’t think he’s fit for the honor of serving in high office. Yes, I am Assuming he’s guilty, but with very good, common-sense reasons. The evidence supporting the Assumption of Dick’s guilt is powerful enough that Renzi has already lost the respect and trustworthiness required to carry out the duties of public office.

Renzi’s case is one of those where a defense lawyer reading the
indictment reaches for his bottle of scotch and crawls into it. It’s
that bad. The defendant was stupid and obvious about his crimes and got
caught. In hind-sight, it is hard to imagine how the defendant expected
not to get caught. One wonders if he actually wanted to get caught.

It is a common sense Assumption that the dozens of people who produced or reviewed the investigation of Renzi, and the indictment that resulted, are at least as trustworthy, and probably more so, than Renzi. They aren’t conspiring in an elaborate plot against Renzi. They are telling the truth about Renzi’s crimes, and their story is cogent, well-supported, and damning – otherwise all those people would not have put their reputations on the line to accuse a U.S. Congressman of such serious crimes.

Republicans who want to stretch the benefit of the Presumption of innocence to make us treat Renzi as if he were factually innocent need to visit the real world, where a criminal, even one with a pristinely white collar like Renzi, is Assumed to be guilty, when there is such compelling evidence against him.

If Dick Renzi was a common criminal who embezzled $400K of his customers’ money and then extorted over $1 million for himself, and not a Republican Congressman, do you honestly think that Republicans would do anything but spit on the man? Alright, they would probably call him for a campaign donation first, but then they would spit on him, and it is all down to a perfectly sensible Assumption of guilt.

There is at least one criminal in Congress today: Dick needs to pull out.