Presumption of . . . Guilt!

This is the opinion of the Barry S. Edwards Law Office. Any expenses associated with this content was paid for by the Barry S. Edwards Law Office.

“They Got  Him!”

A recent issue of the Minneapolis Star Tribune contained three attention-grabbing crime headlines:

“Despite no body, Moorhead man charged in dismemberment killing of woman, 19“

and

“Suspect faces first charges in attacks terrorizing women in Minneapolis“

and

“Man charged in Hopkins hit-and-run that left man critically hurt“

How We React

Even I – a warrior for due process and defendants’ rights – have a visceral response to these headlines: “they got him!” “throw the book at him!”

I know I am not alone. Most people feel the same way.

That Is a Problem

The problem with this visceral reaction – and it is a problem – is aggravated by stories that invariably include “facts” from the criminal Complaint.  Unfortunately, reporters invariably refer to Complaints as “court documents,” giving them the imprimatur of “official” or “unbiased” statements whereas, in fact, they are drafted by an advocate to advance a particular position. Therefore, my jury pool becomes tainted by a presumption of guilt–even if they have not read an article about my particular case.  It is in the air.

WHY is it a problem?

There are two kinds of “innocence” in jeopardy here. On a purely theoretical level, this reactive presumption of guilt undermines a fundamental ideal of the Republic: the presumption that someone is innocent until a jury of his or her peers hears all of the evidence and decides whether that evidence amounts to proof of guilt beyond a reasonable doubt. It is hard enough to select twelve unbiased jurors when the judge swears them in to hear “The State versus Kevin Richardson” when you are representing the guy “The State” is against. The automatic presumption of guilt revealed by our reactions to headlines makes it harder.

Then, there is factual innocence, when a jury acquits or a prosecutor drops charges because the defendant did not commit the crime . . . or someone is later exonerated.  Mr. Richardson, above, was one of the “Central Park 5” who actually plead guilty rather than face a jury and possible life imprisonment (he was later found not to have been involved and was exonerated although President Trump still calls for him to be executed). The National Registry of Exonerations lists over two thousand, six hundred people whose convictions have been reversed and who have been exonerated.  The  hurdles to receiving an exoneration are so high that this list shows only a small percentage of the innocent people who were sent to prison.

Given the number of people sitting in jail today pending a trial (roughly half a million people sit in cages awaiting trial) and the ones in prison who were wrongfully convicted, the erosion of the presumption of innocence leads to decades lost, families forced into poverty as the breadwinner is incarcerated, deportations, children removed from families, and untold suffering.

What is the Solution:

Part of the solution is to call for more responsible journalism. Reporters I have spoken to did not know that Complaints are drafted by prosecutors advancing their adversarial agenda (which is their job). Reporters need to learn that there is more nuance and another side to these stories (self-defense, mistaken identification, false report) and include language showing that they understand this such as “the prosecution argues” or “it is alleged that.”

Another part of the solution is more civics education. For all of the emphasis these days on “STEM” education (Science, Technology, Engineering, and Math) the unique ideals that make this country great are those in the Bill of Rights, not the latest technological advances. Students need to learn those rights that are fundamentally what makes them as Americans uniquely free. And they need to learn the critical thinking that they can use to question the often-unintentional punitive bias in the news.