The presumption of innocence

[Mae Kuykendall]

On Sandy Levisnon's query re Lanny Davis's emphasis that Libby is presumed innocent:  " I wonder how much sense such legalistic notions make to ordinary people." 

Prosecutor Fitzgereald was required to, and did, emphasize that the defendant is presumed innocent.  As he said in fending off reporters' questions, it's part of his ethical obligation not to vouch for the case but only to put forward the allegations he has made.  He corrected himself several times when he would say,  "This is very serious," and go back to see, If the charges are proven, it is very serious.

The question arises of how far the ethical obligation of lawyers to emphasize the presumption of innocence radiates from the prosecutor to lawyers who are not involved with the case.  Some of it may be a bit pious.  Lanny Davis, as former special counsel to President Clinton, maintains a certain gravitas, and officer-of-the-court reverence, along with a demonstration of civility that he may intend as a contrast and even a rebuke to legal partisans from the Clinton impeachment.  

But, lawyers are officers of the court, so perhaps they have some ongoing obligation to emphasize the presumption of innocence.  While an observer who is a lawyer may have a realistic view of the strength of a case, it's always worth emphasizing to the lay public that an accusation is only an accusation.  

I would not go on to suggest, however, in the manner of an after-dinner speech,  that lawyers' care in emphasizing the presumption of innocence in public statements has much effect on the general understanding of the presumption of innocence.  I would think it is more of a polite usage by lawyers who are not involved in a particular case--and a meaningful ethical obligation of a prosecutor.

Mae Kuykendall

>>> "Sanford Levinson" <SLevinson at law.utexas.edu> 10/29/2005 5:24 PM >>>
>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