Over at Simple Justice, the blog of my old friend, Scott Greenfield, a debate was posted. (Haha! I did it again! I recover my old blog by firing my marketing company, and my posts return to being responses to a Greenfield Post!)

Chris Seaton and Mario Machado—two old Fault Lines alumni—were given the task of debating the presumption of innocence.

Chris took the argument that the presumption is just another technical rule. Mario, fed up with the “technicality” argument, argues #InnocencePresumptionsMatter.

After a brief dive into their discussion, I’ll get to what was bugging me this morning as I pushed into another day of dealing with the presumption of guilt.

Debating the “Presumption of Innocence”

As much as I hate to say so—at least as far as their debate—the win was Chris’s. I’m not saying I like his argument, nor do I like that I grudgingly give him the win: I’m just saying that, in the Simple Justice debate, he had the better argument. Chris’s argument was based on the undeniable reality that, as he put it in the rebuttal portion of his argument:

The sad truth is that these days most people reject rational thought in all but the moments when their brains are engaged in the most mundane tasks, like balancing a checkbook.

This is the age of people “speaking their truth,” #MeToo, rushes to clickbait headlines, and servers full of true crime podcasts. Ask a mother on the street if Casey Anthony is innocent. Behold the thousand yard stare you get for daring to pose such a question. Repeat the same experiment with Jeffrey Epstein and the average man on the street.

However, Chris argues, ‘merkins are rule followers, at least in the presence of authorities. Convincing them that the presumption of innocence is a “rule,” rather than a high-minded principle, is more likely to find them paying obeisance to the rule handed down by the court, rather than rejecting a principle too many “feel” is idiotic.

And it doesn’t require them to abandon the more deeply-ingrained modern ‘merkin presumption of guilt.

Now, I said that I considered Chris the winner “grudgingly.” I do so because in my own heart I share Mario’s belief that it is a fundamental guiding principle for preventing unjust outcomes.

But, aside from the fact that this does not seem to be true, Mario’s only argument appears to be “considering the presumption of innocence as a ‘rule’ isn’t good enough.”

This wave of cloacal abuse that is coming your way cannot be repelled by the mere concept of a “technicality.” It is something that lives on from the our founding fathers, part of a set long-standing principles that live and breathe to this day, that exist in order to fight back against a tyrannical government. The word “technicality” is nothing but soft language, an empty bag, and ‘tis hard for an empty sack to stand upright against a criminal prosecution and the stigma it brings with it.

Mario doesn’t seem to give a reason for believing this; he just believes it. In his rebuttal of Chris, he says,

Your not-so-humble-servant’s aim is to convince people to raise their sights, and to try to be the adults in the room who will shun feelings when discussing something so vital as the presumption of innocence.

There’s just one problem with this, and it’s the bedrock upon which the principle used to be founded, and on which Chris’s argument finds its strength: people do not, will not, cannot “shun feelings.” In fact, numerous neuro-scientific studies—I’ll link just this one, and leave finding others as an exercise for the reader—have shown that investigation of “the formation of spontaneous abstract intentions … showed that the brain may already start preparing for a voluntary action up to a few seconds before the decision enters into conscious awareness.”

These findings, actually, create a bit of a weakness for both Chris’s and Mario’s arguments.

I still think Chris wins. I think this because what Chris proposes can throw a wrench into the “normal” working of the human brain, by not trying to attack a deeply-ingrained feeling head on. (Pun! Intended?)

Instead, Chris suggests invoking another deeply-ingrained idea: that “rules should be followed, especially when handed down by the authorities.”

This does not serve as a direct challenge to a deeply-ingrained feeling about the presumption of innocence: it shifts the focus. Jurors aren’t making deep philosophically-based decisions about right and wrong; they’re following a legally-dictated structure, or procedure, which they are told is appropriate to a particular task.

The Philosophy of Innocence

Whatever unconscious crap is going on inside the human brain that makes it impossible to really—based on principle—believe in the presumption of innocence any more is indefeasible. It is the result of years of inculcation on various fronts, not the least of which is the legal system itself. Our legal system no longer seriously endorses a presumption of innocence, and people have been taught that belief in a presumption of innocence is almost laughable.

It’s a philosophical idea. And ‘merkins no longer value philosophical ideas: they’re not pragmatic. We don’t base our decisions on some kind of logic, but on unconscious “feelings” (I can’t think of anything else to call them, although as even my post implies, they’re only “felt” after the fact) that have been drilled into us. Anyone who doesn’t understand this—any lawyer, at least, in a courtroom, who understand this—has lost the fight before it’s begun.

They’re doomed to fail, however, because decision-making isn’t logical, it’s emotional, according to the latest findings in neuroscience.

Back to Basics, or So I Thought: Benchbooks

Recently, I have decided that I’ve been a criminal defense lawyer—working primarily in courtrooms—long enough that I worry I have forgotten some of the bedrock “rules” of the law which I could use to try to build persuasive law-based arguments to judges. And, so, I started an active, deliberate, somewhat structured plan of re-reading (or in the case of new books, reading) fundamental “black-letter law”-type books.

Domestic Violence Cases in Criminal Court

One such book is California Judges Benchbook: Domestic Violence Cases in Criminal Court (2019). I didn’t have to read very far to start to get irritated, and even a little pissed off.

Chapter One starts off talking about all the governmental studies—some by judicial councils, some by Attorneys General, some by victims’ advocacy and “anti-violence” groups—that inform our domestic violence courts; that is, the places where people “presumed innocent” are brought to have their cases tried find out what the predetermined punishment for having been accused, arrested, and thereby deemed guilty will be.

In Chapter Two, we get a little introductory case law that explains how, even if a particular case does not seem to be the kind that is a violation of the domestic violence statutes, it is a violation of the statutes. So you learn that although the law requires someone to be in sustained fear as one element of the crime of “criminal threats,” the person doesn’t really have to be in sustained fear. Or you learn that “to support a conviction [for domestic violence against a spouse, cohabitant, or someone with whom the accused was in a relationship, or had a child, an] injury may be of any variety and of a minor or serious nature.” In my own experience as a domestic violence defense lawyer, an argument that got really loud, causing someone to call the police, will often do.

But it’s Chapter Three that will really help you understand the modern ‘merkin legislatively-dictated-and-judge-backed presumption of guilt.

Chapter Three is titled “Pretrial Release,” and what you learn from it is that pretrial release is to be resisted. Why? Because people who commit are accused of domestic violence are dangerous people.

This chapter is designed to assist the judicial officer in determining whether the defendant is eligible for bail, the factors to be considered when setting bail, and other conditions that may be triggered by an own-recognizance (OR) release.

(I’m not listing all the page citations: this is a blog post; not a treatise. You can find the book and see the quotes yourself, if you are interested.)

And, as mentioned regarding the introductory chapter, we start off with a re-recitation of the studies showing why it is that

The most important pretrial release consideration in domestic violence cases is the need to separate the parties and protect the victim.

It’s far more important than, for example, the United States Constitution, or the concept of the presumption of innocence. We presume guilt. We take as true all parts of the allegations, even if they’re immediately recanted once the accuser has sobered up (because many times, both parties to the interaction are drunk, or under the influence of drugs, at the time of the interaction and police response).

As Chapter Three goes on to explain, “many judges believe that the court should consider no bail in some cases.” And, “[i]n most other cases, the court should set bail, reserving OR release only for exceptional cases.”

Why only exceptional cases? Because the purpose of the bail in these cases is to make it more difficult for the accused person to leave the jail.

That’s the presumption of guilt at work; not the presumption of innocence.

In re Humphrey: Let’s Go with No Bail

Bail is something over which California has been struggling mightily of late. Judges prefer incarceration without conviction. Bail fucks with that.

We have had a significant court case—In re Humphrey, 19 Cal.App.5th 1006 (2018)—in which a court, probably the Stoned Judges, based on what happened, decided that our money bail system was a violation of due process and equal protection.

The equal protection part of the argument says it doesn’t matter if you’re presumed guilty, or not, under the money bail approach, you get to go home if you’re rich enough, and stay in jail if you’re poor enough.

As the court in Humphrey noted, “For poor persons arrested for felonies, reliance on bail schedules amounts to a virtual presumption of incarceration.”

A “virtual presumption of incarceration” is impermissible. But—aha!—a presumption of guilt is not. Though Humphrey argued that the presumption of guilt was unconstitutional, the court never even addresses that issue. Instead, it cites to Penal Code section 1270.1 and 1275 to argue that

[i]n setting, reducing, or denying bail, a judge or magistrate shall take into consideration the protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at trial or at a hearing of the case. The public safety shall be the primary consideration.” … Section 1275 additionally states that “[i]n considering the seriousness of the offense charged, a judge or magistrate shall include consideration of the alleged injury to the victim, and alleged threats to the victim or a witness to the crime charged, the alleged use of a firearm . . . or possession of controlled substances by the defendant.”

The Humphrey court further noted that

Money bail will protect the public only as an incidental effect of the defendant being detained due to his or her inability to pay, and this effect will not consistently serve a protective purpose, as a wealthy defendant will be released despite his or her dangerousness while an indigent defendant who poses minimal risk of harm to others will be jailed.

Humphrey—and its unconstitutional basis and nature—could easily be a blog post all its own. I’ve gone farther into it than I intended. It is shot through with the same ideas that inform the Judges Benchbook that originally inspired me to write a post on the presumption of guilt. Even footnotes talk about whether it is “more likely that the defendant will flee and prove dangerous and re-offend if released”—”re-offend,” because, as the court already knows even without a jury decision, the accused has offended.

This is based on nothing more than “the theory that more serious crimes are punished” more severely; i.e., on the presumption that the crime was committed; the accused and arrested defendant is presumed guilty.

Conclusion: The Rule Trumps Principle

I don’t need to hammer this any more. The reason why trying to fight for the “principle” of a presumption of innocence, rather than a court “rule” that requires jurors to presume it won’t work is simple: for the last several decades we have been inculcated with the presumption of guilt. This is why the neighbors in Mario’s argument did not ask, “I wonder why they’re taking our neighbor away” instead of being “convinced that you must’ve done something to provoke this reaction” of the authorities. This is why our judges’ benchbooks, our system of bail, and our entire criminal justice system presume guilt. This is how Americans were turned into ‘merkins.

Too few of us actually embrace the presumption of innocence as a principle: at a level that too many of us are not even conscious of, the new principle is for a presumption of guilt.

We can only hope that the modern ‘merkin love of authoritarian “rules” can help to ameliorate an unconstitutional reality upon which even our judges encrust themselves.

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2 comments

  1. Thanks for checking out the debate, Rick!

    As I mentioned in the comments there, the genesis of my argument came in a conversation I had shortly after Jeffrey Epstein’s suicide regarding the presumption of innocence. Getting sworn into the following week, including being told I implicitly supported child molestation, just for holding the presumption as a principle, was eye opening.

    Yes, I frame my argument as a “rule” to make it more palatable to those you call ‘Merkins. It’s my hope that if we give the presumption a fresh coat of paint and a more palatable presentation then we can eventually revive it as a principle for all.

    1. It would be great to see the presumption of innocence as a guiding principle, embraced by our free society, once again. I have no real hope of seeing this in my lifetime. It has taken decades to transform the brains of the citizenry to inculcate the idea that guilt is a nearly-irrebutable presumption. And I suspect it will be even harder to convince people the other way.

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