Presumption of innocence

The USA society if very fond of thumbing its nose at the justice system of other countries repeating endlessly as if it were a litany that in the USA, unlike the rest of the world, people accused of wrongdoing are presumed innocent until proven guilty.

In actual fact, that claim has never been true, and the USA is no different than the rest of the world.

Take, for instance, the case of Dzhokhar Tsarnaev, accused as an accomplice of his evil brother in the horrific Boston Marathon bombings which took place on April 15, 2013. He has already been imprisioned for a year and a half. To date, no judge nor jury has proclaimed him guilty of anything. Yet, he has not enjoyed a single minute of freedom since the time of his arrest. If he is proclaimed innocent (doubtful, but possible in a country where asinine technicalities such as the Twinkie defense are able win a case), who in the USA can ever make it up for Tsarnaev for all the time he spent rotting in a jail cell?

At this time, the trial of Dzhokhar Tsarnaev is scheduled to begin on January 5, 2015, nearly two years after the bombings took place. This prolongued period of imprisionment is a spit in the eye of the US Constitution and the US Bill of Rights which clearly states in its Sixth Amendment that:

“In all criminal prosecutions,l 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 defence”

Speedy trial? Yeah, sure. Of course. In the age of Internet and high-speed communications, more than one and a half years without a trial still seems like an aberration, to say the least.

A tacit recognition that the time of imprisionment while awaiting trial amounts to punishment under the presumption of guilt is given by the fact that when an accused individual is found guilty by a US court of law and sentence is handed down by a judge, if that individual was imprisioned for one year and the sentence equals X years, then one year will be deducted from those X years, being considered as time already served for his crime. Of course, if the accused individual is found innocent and set free, he will be awarded no compensation whatsovever for the year of his life he lost forever rotting in a jail cell. No one in the entire history of the USA has ever received any apology or compensation for time spent in prision while awaiting trial after being proclaimed innocent. It must be pointed out that the situation is completely different with those wrongfully found guilty by a court of law and later found to be innocent when new forensic evidence such as DNA matching proves so, in which case apologies and economic compensations have been meted out in several ocassions). On this issue, the USA is no different from other countries who have also punished the innocent, and the fact that the Innocence Project was created proves the point. The recent case of  David McCallum proves this beyond a reasonable doubt. If the whole purpose of considering someone innocent until proven guilty is to make it impossible to punish people for crimes they didn’t commit, the US justice system has failed miserably on several occasions, just as it does in other countries “where people are considered guilty until proven innocent”.

Now consider the case of a police officer carrying out an arrest which results in imprisionment (for example, following a bank robbery or after a rape has been committed). Strictly speaking, the policeman is not a judge nor a one man jury, he has no legal power to proclaim anyone guilty of anything. Yet, in practice, on a daily basis hundreds upon hundreds of individuals are taken into custody and deprived of their freedom solely on a policeman’s report. And we are not talking about a house arrest, the suspect is thrown into a public jail. This is presumption of guilt at its best. If presumption of innocence was the norm, the most a police officer would be able to do is hand down a citation to appear in court after a crime has been committed by someone and he is the prime suspect, and after providing his address the suspect would would be let go assuming in good faith he will show up on his own for his trial without attempting to flee. This would really and truly be presumption of innocence. But where on Earth does any society want to embrace this procedure? Not even in the USA, where “a man is presumed innocent until proven guilty”.

In actual practice, the powers of a policeman go far beyond being able to function as a sort of jury and judge. He can actually inflict corporal punishment, which is forbidden in all the correctional facilities of the USA. A case in point: remember Rodney King? Not only did he get arrested after a high-speed chase. He got the beating of his life at the hands of several police officers. For a change, the entire beating episode was recorded as it took place. Here is the unforgettable memento:

There could be no denying. At the time, it was thought that this would be the first case of documented police brutality where policemen would have to face the consequences of their abuse of power. Yet, in the end, the videotapings where to no avail, and this sparked the Los Angeles Riots. This proves that in the USA a police officer (or better still, several of them taking turns) can inflict corporal punishment unto a person who has not been tried in a court of law and has not yet been proclaimed guilty of anything by a jury or a judge. But still, and in spite of these events, the legal justice system in the USA is presumed by Americans to be much better than in the rest of the world because in the USA everybody is presumed innocent until proven guilty. Yeah, sure. Of course.

Is Dzhokhar Tsarnaev guilty? Most likely he is, and under that argument alone he should remain locked up until he is proclaimed guilty in a court of law and sentence is handed down by a judge. However, this is exactly the same procedure used in other countries, and is the basis for the USA accusation that in those countries a person is guilty until proven innocent “unlike the USA where a person in innocent until found guilty”.

The presumption of innocence is a fantasy. It was never true. This fantasy stems from the societal prejudice that everything in the USA must be better than everywhere else. Better than in Switzerland, better than in Denmark, better than in Germany, better than in Spain, better than in Finland, and so forth. Yeah, sure.

There is a chance, although miniscule, that a good defense lawyer could convince the jury that Dzhokhar Tsarnaev was brainwashed by his evil elder brother who turned him into a Muslim yihadist, a conversion for which Tsarnaev might argue he is now repentant (this might take some melodramatic acting on his behalf in order to sway the jurors), and he could be proclaimed not guilty by reason of temporary brainwashing insanity or some other idiocy in legalese. However, this veredict of innocence will never restore the two years of freedom he lost (a consolation for his victims). In effect, he was considered guilty as charged until found innocent and set free by a court of law.

The truth be said, no society on this planet can afford to take the risk of setting free a presumed killer or rapist or robber while awaiting trial when there is overwhelming evidence showing his guilt. These men still deserve their day in court, although there is a good likelyhood that the outcome of the trial will merely corroborate what is already known. In the meantime, they should and they must remain locked up in jail in order to protect society. And in the final analysis, it is society as a whole who deserves that presumtpion of innocence, not those who willingly and knowingly have decided to take the wrong path.

So much for the presumption of innocence.