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View Diary: Administration Official Attacks Pro-Bono Lawyers for Detainees (178 comments)

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  •  Wrong, wrong, wrong, wrong, wrong (3+ / 0-)
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    The Maven, fbb, sabishi

    No, the presumption of innocence applies before trial as well.  

    Your reference to pre-trial detention is off the mark.  The Constitution imposes a right to reasonable bail.  Pretrial detention without bail is meant to secure the accused's appearance at trial, not to punish him.  (This is similar to the statute allowing any person -- even if not suspected of a crime -- to be detained as a material witness to secure that person's appearance before a grand jury or at trial.  It has nothing to do with guilt or innocence, which is why it was abused by the Administration to detain people indefinitely.)  

    I don't know where you get the idea that "the presumption is the very opposite" or that "the accused . . . do not have the rights of the unaccused."  What Constitution have you been reading?  

    •  Not wrong (1+ / 0-)
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      AJsMom

      If everyone is presumed innocent until proven guilty, then where does the power to arrest, search, or jail someone before a guilty verdict come from?  Each of these is based, generally, on probable cause that the accused is guilty.  That is not a presumption of innocence--it is in fact the very opposite.

      There is in fact no right to bail created ny the 8th Amendment.  What it says is that if bail is set, it must be reasonable but it doesn't say that there must be bail.  Seems fucked up, but that's the law.

      "This machine kills fascists"--words on Woody Guthrie's guitar

      by Old Left Good Left on Sat Jan 13, 2007 at 06:49:32 PM PST

      [ Parent ]

      •  Do you work for the Bush Administration? (1+ / 0-)
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        fbb

        I may presume that some proposition is true but still have reason to take steps towards disproving it.  Search, arrest, and sometimes pre-trial detention are all supposed to be in the service of that process.  They do not rest on the idea that suspicion alone destroys rights.  

        Your argument seems to be that it's hunky dory for the Administration to detain vast numbers of people indefinitely on mere suspicion, because, you know, the presumption of innocence only applies at trial.  It's a great trick:  If you never give a detainee a trial, there's no presumption of innocence.  

        You should join the Bush Department of Justice.  You'd fit right in.    

        •  Dinky (0+ / 0-)

          "Your argument seems to be that it's hunky dory for the Administration to detain vast numbers of people indefinitely on mere suspicion, because, you know, the presumption of innocence only applies at trial."

          I make no argument;  I'm describing the state of the law.  It was that way before Bush;  it will be that way after Bush.  In fact, its been this way for, oh, a few centuries of Anglo-American criminal law.

          Cuz, you see, the fact is that there is, in general, no presumption of innocence, except as it relates to the burden of proof at trial, in the commonly understood sense.  Now, if you want to dispute that, cite some law or facts that tend to disprove it.  But you can't, except to sling some stupid insult:

          "You should join the Bush Department of Justice.  You'd fit right in."

          Yeah, that makes sense. I know something about law, you don't, therefore I'm a Bushie.  Right.

          Fuck you, you ignorant dickwad.

          "This machine kills fascists"--words on Woody Guthrie's guitar

          by Old Left Good Left on Sat Jan 13, 2007 at 07:30:26 PM PST

          [ Parent ]

          •  bad manners, worse logic (1+ / 0-)
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            DSPS owl

            I think it's clear that you are losing a debate when you have to say "fuck you".  Old Left Good Left (OLGL) has made the small point that police do not presume innocence, but he(/she) seems to be missing the forest for the one small tree he's planted and is yelling at us all to look at.  OLGL's point that probable cause does involve some degree of presumption of guilt is valid.  But he extends this into presumption of guilt overall, as if we're supposed to ignore everything we ever learned about the judicial process and forget about the trial phase.  Is he suggesting that we should just let the police mete out street justice?  Should every police officer be judge, jury, and executioner?  If he does not support this, then I hope he will forgive me for assuming this logical conclusion from his posts, which certainly have done little to dispel this idea.  

            I make no argument;  I'm describing the state of the law.

            OLGL has been describing a small part of the law over and over again, and I consider it almost irrelevant to the main point of the original story, except when its logic of "guilty until proven innocent" is extended through the trial phase.  It does sound like a new principle of law that the Bush Administration would come up with, so I think Dinky was good to point this out.

            •  You have a point (0+ / 0-)

              That its not central to the issue; but then again, lots of comments are not central, either.  This is a somewhat freeform medium.

              I posted it as a throwaway comment because it's so frequently cited yet is practically meaningless in actual theory or practice of crimial law or procedure.

              And if Dinky wants to post his first comment as "Wrong, wrong, wrong, wrong, wrong", and his second as "Do you work for the Bush Administration?" while offering nothing substantive, he'd best be able to stand being told to fuck himself.

              "This machine kills fascists"--words on Woody Guthrie's guitar

              by Old Left Good Left on Sat Jan 13, 2007 at 08:25:23 PM PST

              [ Parent ]

      •  "probable cause" is not "presumption of guilt" (0+ / 0-)

        If everyone is presumed innocent until proven guilty, then where does the power to arrest, search, or jail someone before a guilty verdict come from?  Each of these is based, generally, on probable cause that the accused is guilty.  That is not a presumption of innocence--it is in fact the very opposite.

        There is a difference between the presumption of guilt you are talking about in the arrest phase and a presumption of guilt in the trial phase.  In the arrest phase, probable cause means, essentially, "reasonable suspicion".  A police officer can arrest someone who just happened to be near the scene of a crime; hearsay can be enough; past arrest records alone can be enough.  This is not the kind of evidence we should convict people for, and that's exactly why we have a higher standard of evidence for the trial phase.

        As for your other point, about bail, here is the 8th Amendment:

        Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

        I take this to intend that bail should be offered.  Of course, it is not stated explicitly, but I think an honest reading of it would come to the same conclusion, especially in the context of the 6th Amendment:

        In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

        5 years in prison without a lawyer or trial is simply outrageous.

        •  Well (0+ / 0-)

          What got this started was the well-worn but often untrue statement that [Stimson] "Missed the first day of crim law... you know, innocent until proven guilty."  This was almost certainly meant to mean that  Stimson had prejudged the detainee's guilt, and, as I've discussed in other comments, this prejudgment raises due process issues, but not strictly because of a failure to apply a presumption of innocence.

          My larger point--and I believe this is correct--is that there is, in fact, no general presumption of innocence in the criminal law, although it is commonly and mistakenly thought that there is such a presumption.

          That the government can detain you on probable cause (or reasonable suspicion) is just another way of saying that you are not presumed to be innocent.  If you were presumed to be innocent, wouldn't you be able to present evidence at a search warrant hearing?  Or before a grand jury?  The answer, I think, is that you are not being presumed innocent in these situations because, at a minimum, a person presumed innocent should have rights to counter the government's position at pre-trial phases.  That's not to say that you are presumed guilty (as Stimson does).  But its hardly a presumption of innocence.

          Finally, regarding bail:  the Constitution is not a self-defining document (that's more the Scalia position).  For better or worse, we are stuck with how the Supreme Court has interpreted it, and it has  held that there is no right to pretrial release.  Like I said, that seems counterintuitive, but that is the current state of the law.

          Now, please everyone:  this is not an argument for detention at Guantanamo.  That breaks more laws and constitutional standards than I can count on both hands.  I am simply  pointing out that "presumption of innocence", whilst a strong norm and part of our colloquial understanding of how the criminal law operates (and perhaps aspire to) is in fact a technical standard of trial procedure that is not very much in evidence anywhere else in the criminal justice system.

          "This machine kills fascists"--words on Woody Guthrie's guitar

          by Old Left Good Left on Sat Jan 13, 2007 at 08:05:19 PM PST

          [ Parent ]

          •  ok (1+ / 0-)
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            Old Left Good Left

            The answer, I think, is that you are not being presumed innocent in these situations because, at a minimum, a person presumed innocent should have rights to counter the government's position at pre-trial phases.  That's not to say that you are presumed guilty (as Stimson does).  But its hardly a presumption of innocence.

            I think we can all agree on this.  There is no presumption of innocence in the pre-trial phase of judicial proceedings (e.g., arrest, search).  However, there is and should be a presumption of innocence at the trial phase.  Most importantly, Stimson presumes guilt throughout the entire process, including the trial phase, and is acting to weaken the rights of the defendants at trial by preventing them from having access to lawyers.

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