Who Needs The Presumption Of Innocence, Anyway?

Seems that nowadays, the presumption of innocence is in danger.  But why worry? I mean, everybody who gets arrested committed the crime, right?

It’s time to rid ourselves of this presumption formality. The laws are stacked against the police, our president says, and that has got to change. Police certainly wouldn’t arrest anyone unless they did something wrong. Furthermore, prosecutors would never indict anyone without sufficient evidence. So, what’s the big deal? The presumption of innocence is as unnecessary as a land-line or a book made of paper.

Think about it. How many of you reading this column have known anyone wrongfully arrested? Arrested for just standing in front of their apartment building or driving their car.

You may have heard of people arrested and charged with more than what they really did, but in the end, they really did do something. Maybe it wasn’t Assault 1, but it was Assault 3. So the drugs they possessed were for personal use, not sale — they still committed a crime.  Or maybe the murder was in self-defense. Somebody still got killed.  Why worry about being presumed innocent? You’d never be arrested for someone you didn’t do, right?

I can’t tell you how many times I’ve asked jury panels if they knew anyone wrongfully arrested. Guess how it breaks down — by race. It’s only the handful of black panelists who’ll say they or a friend have been stopped for no reason. The Caucasian jurors might admit they know someone who’d been arrested, but then they’ll say that the police treated him fairly and he committed the crime, anyway.

This stuff is black and white. But it’s not only African-Americans who need the presumption of innocence.  Everybody does.  If you let the police and the prosecutor off the hook without it, it spells the end of the checks and balances of our criminal justice system for everyone.

I’m ranting because this treasured “presumption of innocence” has taken a hit to the gut lately, led most prominently by our president.  When a guy gets arrested, to paraphrase what President Trump told police in Long Island last week, hey, don’t treat him with kid gloves. Take the hand off the top of his head as you tuck him in the back of the police car. I mean he did it, he’s a bad guy. Rough him up. He deserves it.  Forget the presumption of innocence.  Let’s invoke the presumption of guilt.  Speeds things along, doesn’t it?

Or take the ICE perspective.  If an immigrant (illegal or otherwise) gets arrested for a crime, they’ll find out, show up in court, and take him out in cuffs.  Who cares if the immigrant has not yet been found guilty.  The presumption of innocence is a bunch of B.S. anyway. Arrest equals guilt.  Speed up the deportation.

This kind of attitude is having a spillover effect.  Attorneys in New York are warning their clients to hide or leave if ICE officers are waiting in the wings. State Attorney General Eric Schneiderman said in a news conference last week that certain places like hospitals, houses of worship, schools, and yes, courts of law, should permit people to go about their business without the threat of being detained before they’re even convicted of the crime that makes them deportable.

Jurors, at least in New York City and probably other forward-thinking places, are handing out acquittals when they think police have gone beyond the bounds of their duties. If the president doesn’t endorse a rule of law that’s fair, they will.

It’s true that many people who get arrested don’t go to trial and plead guilty instead. But often, at least for misdemeanors, it’s not necessarily because they committed the crime but because by pleading guilty they get out of jail faster than if they wait for a trial.  Sometimes even people charged with felonies plead guilty to crimes they didn’t commit because they’re afraid of being convicted after trial and getting socked with a much tougher sentence. The right to go to trial is neutered where the cost of doing so comes at such a high price.

Now the presumption of innocence is in the bull’s-eye. But let’s assume for a second, that it could happen to you. You, your friends, or your family get arrested someday. When you’re the one in the back seat of the police car, you’ll be begging for that presumption of innocence. Why?  Because the police don’t always get it right. Prosecutors often overcharge because it gives them more bargaining power, and if the presumption was one of guilt instead of innocence, your chances of ever being heard and believed would practically disappear.

Let’s say you’re accused of having committed a crime last May. The alleged crime occurred at a time when you were home alone, so there are no witnesses to back up a possible alibi. There’s no one but you to present your side of the story.  If you are presumed guilty, you’d have to provide the tie-breaking evidence that you didn’t do it.   In all but a few situations (unless there’s a video of you sitting on a beach in a foreign country stamped with the date and time) — it’s tough to re-create your past to the exact minute.

So even though our president may believe that only the guilty get arrested, he’s just not right.

However, the presumption of innocence can only mean what it says if people really believe it. That means from the moment someone is arrested, all the way through trial, up to the time of deliberation, an accused is presumed NOT to have committed the crime for which he’s been indicted.  It’s what everyone arrested for a crime deserves.

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Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.