Wednesday, November 16, 2011

the presumption of innocence

You know, I just feel compelled to point out-- this Jerry Sandusky situation at Penn State is precisely the kind of situation where the rubber meets the road for a belief in the presumption of innocence.

You've had a lot of liberals lamenting the collapse of the rule of law the last decade. This would appear to be a situation where the rule of law and rights of the accused are most important. It's precisely when the media and the people have already decided the guilt of the accused (and are competing to describe his evil in the most lurid hyperbole) that these principles are the most important. And yet I find silence on that presumption of innocence from most liberal commentators, or the outright abandonment of it, when it comes to this particular case.

This particular case involves disturbing admitted attitudes and behaviors and a great deal of incriminating testimony. But the presumption of innocence is the bedrock principle of our legal system, and it applies until the legal process has run its course. And it has nothing to do with belief that the accused will eventually be found not guilty, or sympathy for the accused. I can generate no such sympathy for Jerry Sandusky. But I have to point out that precisely the same liberals who beat their breast about the terrible collapse of the rule of law are now trying to outdo each other in the expression of their outrage, directly against the presumption of innocence. I don't expect any different from conservatives, who by and large believe that any accusation is true if it is voiced-- unless it's sexual harassment, rape, or police misconduct, that is. But liberals who have staked many claims on the rule of law and the principles which undergird it suddenly find that commitment unpalatable, when it has become so unpopular.

I doubt you'll find many expressing that perspective, though.

Update: mistermix made some astute points here. This is what I said in comments.
I recognize the distinction. I just think that trial by media is a poor idea, as Richard Jewel could have told you when he was alive. And while I recognize that the legal right to a fair trial is distinct from the opinions on guilt of the public, I also think that it becomes functionally impossible to get that fair trial when the public is convinced there's no chance the accused is innocent.

It's a fair point about the institution, but recognize that the same criticism holds: they are accused of crimes and deserve the presumption of innocence.

It seems likely to me that Sandusky is guilty, and thank god we don't have a legal system predicated on the opinions of those minimally informed by the media. If he is guilty, he should spend the rest of his life in jail. Just like those in Guantanamo Bay should receive appropriate punishments, if they have been proven to have committed crimes in court.

Finally, on the outrage thing-- for me, "child rapist" is enough. I don't need to dig any further into my vocabulary to find appropriately angry terms. "Child rapist" says more than any purple prose ever could. It's just like with bin Laden. Why is "terrorist responsible for 3,000 people killed on 9/11" not sufficient? When people dig so deeply into their bag of outrage, at some point it ceases to be about the victim and instead becomes about them.
Update II: The consensus is that I'm full of shit here. (Although you know how little I value consensus!)

27 comments:

  1. Sorry, Freddy, can you give an example of what you're talking about? My understanding is that "presumption of innocence" is a legal term, not a... cultural norm. That is, the law is required to presume Sandusky's innocence; I don't see why individuals are obligated to do the same.

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  2. It's college football, bastion of Republicanism. Why is it a surprise when this case confirms all the bad things you believe about the other side?* -K.

    *With all the appropriate caveats about the real victims, etc., etc.

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  3. "But I have to point out that precisely the same liberals who beat their breast about the terrible collapse of the rule of law are now trying to outdo each other in the expression of their outrage, directly against the presumption of innocence."

    Link(s)?

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  4. I don't know whether "presumption of innocence" is what is appropriate at this point in this case; maybe we're past that. But I do think that the vehemence with which moral outrage has been expressed against not just Sandusky but Paterno, McClury, McClury's dad, and anyone else within spitting distance ... such instant vehement moral outrage is a dangerous drug, all too readily available these days.

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  5. I guess you could compare it to the Nancy Grace, Duke Lacrosse Fake Rape thing.

    But in this case, the amount of evidence presented does seem to be substantial...that multiple kids got raped, and people covered it up. For years....

    If that's not a proper circumstance for
    'instant vehement moral outrage' then it doesn't exist.

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  6. "I don't expect any different from conservatives, who by and large believe that any accusation is true if it is voiced-- unless it's sexual harassment, rape, or police misconduct, that is."

    Don't forget war crimes. ;)

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  7. I can't attest to the political persuasions of the audience, but if anyone has any doubt that the presumption of innocence in this case has been flushed down the toilet, all one needs to do is to tune in to sports talk radio.

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  8. "...the presumption of innocence is the bedrock principle of our legal system, and it applies until the legal process has run its course. And it has nothing to do with belief that the accused will eventually be found not guilty, or sympathy for the accused. I can generate no such sympathy for Jerry Sandusky. But I have to point out that precisely the same liberals who beat their breast about the terrible collapse of the rule of law are now trying to outdo each other in the expression of their outrage, directly against the presumption of innocence."

    Everyone thinks he's guilty, which you seem to think, too, if you're not willing to give sympathy to him while bemoaning people refusing to presume him innocent. But I myself have never heard anyone say he shouldn't be presumed innocent in a trial...

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  10. Anonymous is quite right, "presumption of innocence" is a legal term, not a social demand. One can continue to believe that Bernard Law and a number of other Catholic apparatchiks knowingly covered up child molestation even though they haven't been tried (and should be, in a court, with presumption of innocence). It's quite true that we don't actually know what anyone involved in this case actually did (especially now that McQueary is saying the story we heard about him is wrong). But then, we never will---a trial a useful tool, not a truth-determining certainty---and unless there's some actual *reason* to think the stories we've heard aren't accurate, it seems odd to bleat otherwise.

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  11. See, you make a good point, and then go out of your way to violate my "don't be a jerk" rule by using the word bleat, and you are dishonest, because I am not saying that anyone is being inaccurate. In fact, I took pains to avoid exactly that. But then, you know that.

    Troll better, dude, seriously, or find a new obsession.

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  12. The Richard Jewell comparison is particularly ill-chosen: Jewell was victimized because the FBI rushed to judgment based on their pseudo-scientific profiling process (announcing him as a suspect days after the bombing), and because he had no powerful friends.

    By contrast, Sandusky has been the victim of a stroll to judgment at the very worst, the tempo of which is directly related to how plugged in he is, or at least was.

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  13. I would like to thank you for your timely reminder on the presumption of innocence. We need to be open to the possibility that there is more here than meets the eye.

    In your update you manage, though, to engage in that which you criticize.

    "If he is guilty, he should spend the rest of his life in jail. Just like those in Guantanamo Bay should receive appropriate punishments, if they have been proven to have committed crimes in court."

    How do you know he should spend the rest of his life in jail? Do you know of any extenuating circumstances? Are you sure there aren't any? How does the punishment you are proposing compare to other similar crimes? What are the odds of re-offending? Do you believe that vengeance and justice are the same thing? Perhaps you need to take a deep breath.

    Moving on to Guantanamo - It provides the example of when it is necessary to make judgments outside the legal system. There is no true functioning legal system - only show trials.

    Are you sure that it is even possible for any true justice system to try any of these people in a court of law? Is the assumption that that is even an option any more highly problematic?

    There is the possibility that the justice system has managed to engage in such immoral behaviour that any trial would hold the entire system in disrepute - not that there is that much left of the American judicial system that is not in disrepute. There is the added problem of selective punishment - Extreme crimes committed by US personnel (torture and murder) are ignored while people are convicted of crimes that supposedly merit seven years in jail - David Hicks for example. My understanding is that the combination of repeated torture and murder warrant a fair bit more than 7 years in the US system under normal circumstances.

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  14. I've been reading this blog for about a year now, and until now have taken pleasure and solace from it. However, this post is severest horseshit. It is perfectly appropriate to express fiery moral outrage about child rape. I could care less about what is said on the internet -- this is the only blog I read -- but if we take it literally for a moment as an 'electronic village', we see that is nothing more than sanctimony and preening self-love to demand that we all go about grimly murmuring 'child rapist', and leaving it at that. Thank god human beings don't behave that way! When something like this occurs, it is GOOD we go about venting and ranting and reassuring each other that what happened was indeed heinous and outrageous, that we are still capable of feeling shame and empathy. Imagine a real village that conformed to Freddie's Englishy code of reticence. Some local stalwart sodomizes half the village's children. When his deed is discovered the villagers mournfully shake their hands, quietly murmur 'child-rapist', lock up the the man, and return to their business. I mean, you really think priggish communal reticence is preferable to chest-beating and excoriation and loud, loud solidarity with the violated children? Geez, man. Save your indignation for something that matters, that doesn't happen on the internet.

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  15. As author of the last comment, I want to apologize for the last line of said comment. It didn't come out the way I meant it. Obviously it is fine to be indignant and critical about things that are said on the internet. I guess I was just rattled because Freddie's post seemed more about his totally legitimate disdain for mainstream liberals than a honest appraisal of the situation.

    Sorry for being a jerk. My first internet comment ever and I screwed it up with pointless bile!

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  16. Severest! Of all bullshit! Well maybe I'm wrong.

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  17. One more thing. (And clearly if I am to comment on this site I should think up a name for myself -- gee, maybe even my real one haha not gonna happen.)

    Noisy indignation from liberal commentators aside, I find the most striking thing about this 'scandal' to be the nauseating lack of solidarity displayed toward the abused children. Did I expect the footballers of Penn State to collectively agree to forfeit their season? Obviously, no. This is America, land of the venal. My wan hope is that the photograph of their pre-game prayer on the fifty-yard line is remembered centuries hence, in the ashes of our perished republic as one of the iconic images of our moral squalor. A pseudo-solemn self-righteous prayer to a deity very few people truly believe in anymore, and then on with the festivities! That football game was indeed an act of solidarity: for the perpetrators of the cover-up. Everyone who watched the game, on TV or live, participated.

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  18. Also, I will be more conscientious about rereading comments and editing.

    Should be a commma after Republic.

    Have a good day!

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  19. Pretty weak stuff, Freddy. Right up there with conservatives who complain when liberals mock them by going to that old "but you liberals are supposed to be tolerant and understanding" line.

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  20. Wait, it's dishonest to say that you're implying the story we're hearing about Sandusky, et al, is inaccurate? But if you don't think the story might be inaccurate, what could the point of your complaint about presuming innocence (bleat does seem an appropriate word, since it's an extended complaint with no real factual or even assertive muscle behind it) possibly be?

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  21. But if you don't think the story might be inaccurate, what could the point of your complaint about presuming innocence (bleat does seem an appropriate word, since it's an extended complaint with no real factual or even assertive muscle behind it) possibly be?

    You really don't know? The principle of the presumption of innocence applies even if the accused appears guilty, and doesn't become retroactively illegitimate if the accused turns out in fact to be guilty. That's not me talking; that's hundreds of years of Western jurisprudence.

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  22. Hate to join the consensus, but as others have said, the presumption just doesn't apply to commentary.

    Also, it kind of seems like this may not have been the best kept secret in Happy Valley. So maybe our concern about a fair trial should be focused in the opposite direction?

    Finally, as to concerns about him getting a fair trial, I guess we just have to trust the court system, which I actually think is pretty good at weeding out those who have prejudged a case. Granted, I always wonder what's wrong with potential jurors who have actually avoided news like this, but the mere fact that very high profile defendants get acquitted with some frequency (OJ, Casey Anthony) suggests that massive press coverage that presumes guilt doesn't necessarily result in conviction.

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  23. Also, it kind of seems like this may not have been the best kept secret in Happy Valley. So maybe our concern about a fair trial should be focused in the opposite direction?

    Oh dear!

    Better 99 guilty men go free than one innocent man be convicted.

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  24. That "I'm full of shit" bit is supposed to be an admission of getting some things wrong.

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  25. I agree with you on Sandusky being innocent until proven guilty. The problem is there was a 1998 police and child services investigation that got Sandusky on tape admitting to naked shower bear hugs with children. Some how this didn't lead to further investigation or charges. This shows a breakdown of the rule of law. That is part of the outrage. The rage at Sandusky isn't a flipside to the collapse of the rule of law it is the collapse.

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  26. The presumption of innocent is a legal fiction that's purpose is to serve to balance the inherent power of the State to prosecute. The so-called forefathers created this mechanism because they were well aware of how high the cards are stacked against someone when the governing body is dealing the deck. The government has usually more money, more technology and the moral and practical power to accuse which itself creates a "presumption" of guilt over the defendant, evidenced by the phrases like, "Where there's smoke, there's fire." Thus the presumption of innocence counterbalances these prosecutorial effects because in criminal cases because incarceration is considered to be the highest of stakes. (Civil matters require a burden of proof of much less magnitude.) However, there is an obvious rush to judgment in the media. Sensationalism sells advertising. Also, molestation/pedophilia is a extremely notorious crime in our Disney-fied society, it is so heinous that an accusation of such has the power to wreck someone's life whether they are high profile or not. Even in a small town the rumor of rape or child rape needs no social media to spread like wildfire. Further, in the times of the so-called forefathers, there was muckraking and rumor-milling. However, it may be true that the potential jury pool could be tainted by the Sandusky coverage before it is selected by encountering these media images. And yet, Michael Jackson's second molestation trial probably contained a pretty tainted jury and he was able to secure acquittal. I suppose Sandusky's media image is more "menacing" than Michael Jackson's image because Sandusky is a football-culture Adult Male where Michael Jackson had greatly limited his masculinity, was an "artist" and framed himself to be a child in a man's body. (perhaps this image was intentional on Jackson's part to facilitate his predatory endeavors).

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