Presumed Innocent? Bernie Madoff?

People constantly complain to me about news coverage of criminal cases. "What happened to the presumption of innocence?" they ask at almost every turn. Well, I'm tired of it.

I don't presume that Bernie Madoff is innocent. The same goes for toddler Caylee Anthony's mom Casey, or for any of the alleged mobsters on trial in New York, or most other high-profile defendants. Certain defense attorneys (or former Illinois governors who effectively decide to represent themselves) would have you believe that is somehow shameful, maybe even anti-American.

As a citizen -- or even a TV legal analyst -- am I required to presume innocence, i.e., that the authorities arrest the wrong person in every case? Not a chance. Imagine how this might play out on television:

"So Dan, how bad is it for (insert name of minor reality-show celebrity here) that the authorities found a pound of cocaine and four ounces of heroin on his person and in his car, the entire arrest was captured on videotape and the defendant confessed the drugs were his?"

"Bad? Bob, I have to presume the defendant innocent, so I'll presume those drugs were planted by corrupt police officers well before the car came into focus on the tape. And that confession? Well, it must have been coerced." That would hardly reflect an effort to assess and evaluate the legal strategies and evidence as fairly and objectively as possible.

While not explicitly articulated in the Constitution, the presumption of innocence has, through Supreme Court opinions, become a fundamental tenet of our criminal-justice system, and rightly so.

Traced back to Deuteronomy, and reportedly embodied in the laws of Sparta and Athens, the presumption ensures that government, which has the enormous power to take away someone's freedom, assumes the burden to prove its accusation beyond a reasonable doubt, the properly demanding legal standard in criminal proceedings.

Essentially we stack the legal deck in favor of the defendant. After all, the potential consequence (in most cases prison time) is so grave that we say we would rather let "10 guilty men go free than convict an innocent one." But unless I am sitting in the jury box armed with that power I, and any other nonjuror for that matter, have no obligation, moral or legal, to embrace that legal fiction.

The same applies, for example, to hearsay evidence. It's generally inadmissible in court, and yet most of us live our lives based on what people we trust tell us they heard or learned.

Some claim that, because legal banditos like me refuse to presume every defendant innocent, the prospective jury pool is polluted, thereby making it impossible for jurors to presume innocent a defendant in a high-profile case. Malarkey. That is why we have jury selection.

The goal is not to find jurors who necessarily know nothing about a case, but to find jurors who can fairly evaluate evidence and determine guilt or innocence. No question, extensive media coverage can make the selection of a jury take longer. In a worst-case scenario, a change of venue would be the remedy. But defense attorneys who complain about poisoned jury pools are often really just saying that they think prospective jurors are lying when asked what they've heard about the case in the media.

Watching jury selection during the O.J. Simpson civil case in Santa Monica in 1996 served as a reminder that, lo and behold, not everyone follows news that closely. Did every juror know about the criminal case that had concluded in downtown Los Angeles months earlier? Of course. Did they know some of the facts? Surely. But they were also not O.J. junkies who had followed the ins and outs of the case. They were open to rendering a verdict based on what they heard in court.

What about those like CNN's Nancy Grace who seems to presume every defendant guilty? Criticize her if you like, but such behavior doesn't mean the rest of us must feign ignorance. We can question police and prosecutors without necessarily presuming they are corrupt or misguided.

Early in the investigation of the Duke University lacrosse players accused of rape in 2006, some of the very same people who suggest that the presumption of innocence be applied in all aspects of society demanded that action be taken immediately against the students. The case is now regularly cited as an example of how important it is to presume all defendants innocent in the media as well.

But that misses the point. Those of us who examined the evidence, even superficially, quickly realized the case was flimsy at best. The lesson there was not about presumptions but about the need to critically evaluate facts.

Demanding that all of us presume every defendant innocent outside of a courtroom is to demand that we stop evaluating facts, thereby suffocating independent thought and opinion. There is nothing "reasonable" about that.

Mr. Abrams is NBC News chief legal analyst and the CEO of Abrams Research.

This article originally appeared in the Wall Street Journal

Comments

[Resjudicata]

The attitude of some posters who agree with Mr. Abrams is very disappointing. It is a shame people would be willing to sacrifice civil liberties just to feel safe.

[Margo Arrowsmith]

Dan, i applaud your honesty and speaking out. I agree with most of the conclusions you make, however, I know of too many cases, lesser known where the media and others presumed guilt when it wasn't there.

The problem is that while Maddoff is probably guilty, where is the line? How many death row inmates have been founf innocent with DNA? And of course, DNA will not stop to false convictions. Yes, the courts are right much more than wrong, but they are wrong too often. 'Common sense' is really only opinion.

I admire your courage to speak out, I empathize with the agony of having to put 'alleged' in front of Bernie Maddoff's name, but I worry more about people who look guilty to the public and the the press, but aren't.

[111]

To me the issue is that the journalist­/reporter/­analyst most often will presume guilt and report the story through that lens. A tragic example is what happened to Richard Jewel who saved many lives but was reported to be the focus of the investigation. Melinda Duckett's suicide is another example of how terribly wrong a TV reporter can make things when they presume guilt. The TV reporter is not part of the investigation, does not know what evidence has been obtained and a screaming, shrewish tv reporter adds nothing to any story being covered.

The power of the media is what makes it a moral, if not legal, responsibility to presume innocence.

But then I miss the early days of Court TV where we could observe the trials without interruption and without the talking heads commenting on the personalities or guilt of the person on trial. The comments explained the law or the courtroom tactics or procedures - it was a wonderful thing. I still remember some of the cases I watched - Robert Bardo, Betty Broderick and Pamela Smart to name a few.

BTW - I won't watch Nancy Grace and wouldn't if someone offered to pay me to do it.

[speeddeeps]

indeed

[whitemerlot]

I agree that journalists do not have to abide by the presumption of innocence when it comes to criminal suspects. But they do not have the right to committ slander or libel against another person, not knowing all of the facts of a case, which could amount to character assassination. If the suspect is acquitted and believes that you have committed character assassination, than you should fully expect to pay a legal price.

[kanester]

Wow! Something in the HuffPo's Media section worth reading!

You surprise me Mr. Abrams ... I thought you as shallow as most media personalities ... but you beautifully contrasted the difference between a court of law's responsibilities and those of the rest of the world. "Fair and unbiased" (especially with the facts facing you squarely) can be just as valueless to the search for knowledge as "extremely biased" -- both have the tendency (when not supported by the facts) to reduce the knowledge value of the reporting.

Best to leave "presumed innocent" where it belongs ... in the court of law. Bravo.

[Nonamnesiac]

It's obvious there is little support for the Rule of Law, so Dan Abrams is just another example of an opinionated media guy who tries to push Conventional Wisdom over the Rule of Law. There are so many examples of where public opinion created by rush-to-judgment media networks were wrong that it's inconceivable that anyone with a brain would oppose the Presumption of Innocence. These media animals created group-think around the war in Iraq that was wrong and at odds with the overwhelming intelligence at the time. There are numerous cases where people were prosecuted and convicted wrongly because the ignorant media know-it-alls (who know nothing) ignored the Presumption of Innocence.

But to people like Abrams, injuring the innocent is less significant than exerting the power of the media to influence the public -- with rightly or wrongly being secondary.

There is no reason to trifle with the Presumption of Innocence. The day may come when it no longer is part of our judicial principles and many will suffer as a result.

[Alterion]

I personally believe 'Innocent until proven guilty' is a good philosophy, not just a legal maxim. In his oscar worthy rationalization, the author of this article seems to imply that the Legal System is impotent - that if not for harsh judgement from the media, people guilty of crimes are dancing in the streets living it up. That's not the case - they are facing possible jail time and often have to wait in prison for their trial. Justice will be done, and the guilty will get what they deserve.

People in the media seem to think that's not enough. In their own self-righteousness, they want to 'tack on' their own little punishment of trashing the person's reputation as well, to make themselves feel better.

How often do you hear an apology from the media for the damage they do? Remember the 'Runaway bride' ? They started pointing fingers at the husband, saying the tried-and-true line, "This is not how you would expect a husband whose wife is missing to act!"

No, seriously. Next time the media latches on to a missing woman story, watch closely. I GUARANTEE, no matter what the husband does, some media pundit will say, "This is not how you expect a husband whose wife is missing to act!!". Very slick - point the finger, drop innuendo, but no direct accusation you can be pinned on.

[plzchuteme]

I don't know what the statistics are, and I don't know that there could ever be accurate statistics, but for the sake of argument, let's just say that 75% of those on trial are guilty of the charges. I cannot then presume that ALL are innocent until proven guilty. Working with the above assumption, 3 of 4 are guilty no matter what I think, presume, assume or guess. My job, then, is to keep an open, unbiased, and critical mind (both of prosecution and defendants) and figure out which are the 3 and which is the 1. It ain't that easy.

[IndianRidge]

I simply disagree with thelvision talk shows entertaining different parties involved in a criminal suit, or a civil suit for that matter. They are free to discuss the issue after a verdict has been given.

[lewes17266]

I miss seeing Dan Abrams in the afternoons. I lived in the Durham area during the Duke Lacrosse case and remember well how fair Abrams was from the beginning. It was a circus. It was a very emotional time with charges of racism and elitism and rape altering the reporting and overshadowing truth. Mike Nifong was so negligent - I still am baffled by that man's conduct and I wonder what might have happened if those young men had not come from families who could afford to fight back with powerful attorneys of their own.

I am really sorry about all the pain and suffering and devastation this Madoff egomaniac greedmonger has caused. It is very sad.

[denny8844]

I too miss Dan and have watched him since his appearances during the OJ trials. I didnt always agree with him but I knew he would always think issues out and like a courtroom attorney force you to look at the facts as we knew them. Come back soon

[JamesA1102]

I liked Dan Abrams MSNBC show and was sorry to see it go (although he was replaced by the wonderful Rachel Maddow). But here he is totally off base. The presumption of innocence is one of the foundations of fair and impartial justice. As a journalist, Dan should just report the facts, not his opinion of them.

[blindjester]

Odd. I don't miss Dan Abrams, but I agree with him here.

Presumption of innocence is strictly for the courtroom. If you're on a jury, you're like an actor in a drama. You play your role by assuming the accused is innocent (regardless of what you may think), and you only change your mind if the prosecution proves their case.

Outside the court room, outside the case, outside the system, you are free to think or speak however you wish.

[Nonamnesiac]

It's obvious there is little support for the Rule of Law, so Dan Abrams is just another example of a stupid, opinionated guy who tries to push Conventional Wisdom over the Rule of Law. There are so many examples of where public opinion created by rush-to-judgment media networks were wrong that it's inconceivable that anyone with a brain would oppose the Presumption of Innocence. These media animals created group-think around the war in Iraq that was wrong and at odds with the overwhelming intelligence at the time. There are numerous cases where people were prosecuted and convicted wrongly because the media vermin ignored the Presumption of Innocence.

But to people like Abrams, injuring the innocent is less significant than exerting the power of the media to influence the public -- with rightly or wrongly being secondary.

There is no reason to trifle with the Presumption of Innocence. The day may come when it no longer is part of our judicial principles and many will suffer as a result.

[apduncan1]

How come Madoff is not in jail?

[T4Vegas]

Mr Abrams and his ilk are only interested in becoming as rich as possible, and to hell with right and wrong. They prove this by starting every segment of their shows by saying their own names before anything. They are only interested in promoting their own inflated ego's, not the truth or justice they as sworn officers of the court are obligated to do.

[Alterion]

This commentary is actually quite frightening to read. That a bigshot news media person would be so dismissive about 'innocent until proven guilty'.

Not everyone who gets caught in a legal problem wants to go on TV and explain themselves. Some people want to remain private citizens. You really seem out of touch, Dan. How can someone expect to go back to leading a normal life after the kind of ceaseless coverage and baseless accusations that are often tossed about on TV, with the word 'allegedly' thrown in front of every statement as if it absolves the speaker of everything they say afterwards.

Of course the person may not survive the process. Richard Ricci (remember him?) and Melinda Duckett are two examples of those who did not.

Of course you, and NBC, make millions on what you do. So continue to rationalize it, and proceed. Millions watch, right? Just giving them what they want.

[OldKnute]

Yes,, frightening and dangerous.

News coverage is one thing. There was Print coverage even in the early days in America.

Convictions in the Court of Public Opinion is nothing short of anarchy and what Dan argues for, is tantamount to Mob Rule and unconstitutional at it’s origin and source.

What Dan is suggesting we agree to, is that any accused person is guilty before trial,,, if Dan or the Majority of Media consultants deem it so. Lynch Mob thinking. Lynch Mob justifications. Lynch Mob mentalities.

I absolutely agree with you.

All the best

Knute

[Alterion]

I know we have freedom of speech, but I don't think it means 'anything goes'. The media has been very nimble (read this as 'cowardly'). When a rich and powerful person gets irked, lawyers write letters, apologies are issued, and the media backs off. Not so for the little guy.

Rights come with responsibilities, but often people think, "Hey if its legal, its ok!".

Remember the Scott Peterson trial? I remember many disgraceful antics by Gloria Allred. She was defended by these talking heads by them saying she's not a lawyer for the prosecution or defense so she can say what she wants (not to mention she was great for ratings...). Its one thing for media hacks to comment - but a lawyer directly involved in a case, its highly innapropriate. Heck - the guy was probably guilty, but it still left a bad taste in my mouth about justice.

Nothing is going to end freedom of speech, it will always be around, which is largely a good thing, but it will always sadly be exploited, and many innocents will be ground up in the gears. Follow your own conciense, for those of you have one. ( Less and less it seems in this country the rich and powerful have none. )