Part 1 of 2
jarhead said:
Just a "point of order" here, but there is NEVER a need to PROVE you are 'innocent'. You ARE PRESUMED to be innocent in the eyes of the law, unless and until you are found to be guilty in a court.
I'm glad you made this "point of order" but we sure don't agree on this one. Yes, it is true that "in the eyes of the law" you are
technically presumed to be innocent, but in the real world of the law, it just ain't so. In fact I would go as far as to say that this is the biggest myth in what we call the Justice System. We do not have a "justice system", we have a legal system. It takes time to work this, but I'll try anyway.
The very best example I can think of relates to what is, by most people, considered to be the most onerous of crimes; child mosestation. Let's say a kid, not a small child but a teenager (under 16, over 13) gets pissed at you. You are, we'll say, his football coach and you just kicked him off the team. He picks up the phone, calls 911 and tells them that you "touched" his private areas in an improper way. They send a cop and a detective, talk to him for ten minutes during which he describes how you "did it". Next thing you know they are banging on your door, you're arrested and hauled off in cuffs. They take you to the station, talk to you for 15 minutes, you deny everything, and they charge you with child mosestation. Off to jail you go. Bond, $50,000. At this point you have been "presumed guilty" by the law enforcement people that you've become "acquainted" with so far. (For clinchers, you have no prior arrests for anything, ever. Not even a major traffic violation, you're "Mr. Clean")
Hopefully you have the money to bail out or you'll just "sit there" while they presume you innocent. You won't get released on your own recognizance because you have, once again, been "presumed guilty" and a danger to the community. By now you have a clue that you're going to need a lawyer. Your family scrapes up the $5 grand, put a lien on the house to do it, and you get out. Now the "fun" begins.
The minute you get home, everyone that "heard about it" is there. This is your family, and you feel safe. Then the questions begin. After a while you realize that they aren't asking you how they can help and they aren't accusing "the kid" of telling a lie. What they want to know is "how come you did this". You swear up and down that you didn't, but by the time they leave, you've got the picture. They tell you, "we'll stand behind you no matter what", but nobody says you've been falsely accused. You realize that once again, you've been "presumed guilty", and who's doing it? Your "loved" ones.
You start the process of hiring a lawyer to defend yourself. By the time you've made the 10th call, with no takers, you begin to figure out that lawyers don't really want to take these cases. Why not? Two reasons, 1) the chances they will "lose" and you'll go to jail are 80/20. 2)They have to live with their peers, and nobody wants a "buddy" that defends a sleeze bag. But I'm innocent, you think. Sure, tell it to the judge.
Eventually you find a lawyer with some experience and he'll take your case. $40,000 up front and another $20,000 if it goes to a full trial. Your jaw drops, but you have no choice. Well yeah, you do, you can always ask for a Public Defender (if you can prove you are indigent), but by now you've figured out that if you get one, your conviction is virtually guaranteed. You mortage the house and pay the mothpiece.
[Mind you now, you're not Michael Jackson, you don't have $400 million dollars, which means you can get any lawyer you want to take any case you want), and you're not a celebrity. You're just the local high school coach and nobody's ever heard of you before. Just for kicks, do you presume he's innocent? Does anybody in this forum?]
Meanwhile, back at the ranch (law enforcement), the Sheriff has sent the paperwork to the DA's office. Before you know it, your new lawyer calls to tell you that you've been charged with two felonys, one has a penalty of 30 years in prison and the other 15 years. He also tells you that if you're convicted, the State law adds them up for this type of crime. Thought you had a small problem? Wrong, this is a fight for your life. The DA has "presumed you're guility" and filed formal charges. Your attorney schedules an "interview" with you.
You get there, and after the first hour of Q & A, it begins to sink in. This guy, the lawyer I'm paying, thinks I'm guilty too. He doesn't actually say that, but he sure doesn't tell you "I believe you". Instead he keeps telling you "we're going to have to prove that". Finally you ask out loud, "don't they have to prove that I did it? There's no evidence." That's when the bombshell comes as your own lawyer tells you .... Mr. X, this is the most difficult type of case to defend. It would be easier to defend you if you were accused of Murder 1. The only way we are going to win this, is if we can "prove" to the jury not only that you didn't do this, but that you couldn't have done it. You ask, "How are we going to do that, there was nobody there but him and me?" Exactly, says your lawyer, and when a innocent kid says that you molested him and you say you didn't, who do you think the jury is going to believe? Reality begins to sink in. "But it's all hearsay, you claim". "Yeah", your lawyer tells you, "and in this type of case that's admissable. Hearsay is evidence when a kid has been molested." All you can think to say is, OH. But your mind registers that he just said "has been". Now you know for sure that your own lawyer "presumes you guilty".
By the time it gets close to trial a year later, your lawyer is improving your confidence level by asking you what kind of "deal" you're willing to accept. By that he means a plea bargain. You say again, "but I'm innocent" and he says, "I have to advise you what I think is in your best interest". Get the picture?
He also tells you that if you plead no contest to
any charge that involves sex with a child, you will go to prison for some time. Then when you get out, for the rest of your life you will be branded as a "sex offender", and I do mean branded. The term is not rhetorical.
If you don't "take the plea" and you lose in court, you can bet the judge will give you the maximum sentence he can. Why? Because that's mandated by your State's law. You insist you are innocent and will "go for broke". You're admonished again by your own lawyer.
He, your lawyer, let's you know that the hardest thing will be to pick a jury. You ask why? He tells you straight up -- because almost everybody in the community believes that "kids don't say these things unless they are true". Yeah, we'll tell them that you are "presumed innocent", but that won't really change what they already believe. We are going to have to PROVE that you did not do this. It won't be easy and our chances are no better than 70/30 (whew, you moved up 10 points, such a deal).
Is all of this a bunch of BS that I just invented? Well, you believe what you want. Just hope it doesn't happen to you because if it does, you'll find out in a hurry just how innocent the law "presumes" you to be. I picked the most difficult type of case to make the point. However, the truth is the same principle applies regardless of the charge, though to a lesser extent. No matter what the charge may be, from a traffic ticket to a capital crime, to the Martha Stewart scenarios, if your lawyers are unable to prove to the jury or the judge that you did NOT commit the crime, an accusation will result in a guilty verdict or a plea bargain (which means "guilty") to some lesser crime.
There's a lot more I could say but I think I've said enough. I know all of this because I have always wanted to be a lawyer (if I couldn't be a pilot first). I have a lot of lawyer friends with whom I socialize, and sometimes I go to court with them, sit in the gallery and watch the proceedings. I like the arguments and the way the go about using the law to prove the innocence of their clients. We talk about it all the time, just like pilots talk about airplanes whenever they meet. I find the whole thing fascinating. Yes, I used to believe that a citizen was innocent until proven guilty. I now know that it just isn't so.
In 9 out of 10 serious cases the verdict will NOT be determined by "justice", it will be determined by the skill of your attorney vs. the opposing attorney. Finally, the skill of the attorney you get is directly related to the amount of money you have. Justice is for sale.
Why do you think the majority of people in prison are poor or from the lower rungs of society? To some extent they do commit more crimes, but to a greater extent they were convicted beacause they could not prove their innocence, and that was because they didn't have the funds to afford good counsel. The Public Defender doesn't always lose but in a majority of cases he does. That's not because he's a "bad" lawyer. Mostly his work load is to high, he doesn't have the time to prepare and he lacks the resources. His reputation is not really determined by his win/lose ratio like a private lawyer, so he has not real investment in winning. You see, the public doesn't really expect him to "win", they already know that if you're accused, you must be guilty. If you do get off, it wasn't because the State couldn't prove your guilt, it was because your slick lawyer got you off on a technicality (or something like that). Well guess what, the same people that have these opinions when they were not in court and didn't hear any evidence, are the people that will be sitting on the jury when your case is heard.
Innocent until proven guilty is a myth, Jarhead. It is something we want to believe, and we can because most of us are never accused of any crime and we don't work in the "system".
Continued
