The presumption of innocence

[Sanford Levinson]

>From an op-ed by Lanny Davis in today's NYTimes:
 

And then, after reminding everyone that Mr. Libby is entitled to the presumption of innocence, Mr. Bush should focus on the people's business and the far more serious problems facing America.

 

What does it mean to accord Mr. Libby (or anyone else who is indicted in a process that we find reasonably trustworthy) a "presumption of innocence"?  It surely means that he can't be jailed until the state proves its case.  But hasn't the Special Prosecutor convinced a grand jury that there is at least "probable cause" (does this mean that a prosecutor believe that it is more likely than not) that Mr. Libby committed perjury?  Are we genuinely to say that we will isnore the material released in the indictment and assume that it's all fabricated or the product of a prosecutor's fevered imagination?  These are in fact real questions, because I wonder how much sense such legalistic notions make to ordinary people.  (E.g., should we really infer nothing if a person refused to take the stand?  Perhaps the legal rule is a good one, but it's not one we ordinarily apply in our everyday lives.  If we ask a friend how a dent got in the car we lent him, we won't stand for, "I have nothing to say about that.")  And, of course, there's the obvious point that Mr. Bush accords no presumption of anything other than complete guilt to Jose Padilla, an American citizen.  Why exactly is entitled to not a scintilla of that presumption and Mr. Libby entitled to the whole thing?  

sandy

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