The right to a presumption of innocence is not mentioned explicitly in the U.S. Constitution, but the presumption of innocence is a foundation of English common law that was incorporated into the laws that govern our criminal justice system. With regard to criminal cases, the presumption of innocence is considered to be a fundamental element of the "due process of law" that is supposed to be guaranteed by the Fifth Amendment to the Constitution and by Section 1 of the Fourteenth Amendment to the Constitution. Because the government must prove the guilt of a person who is accused of a crime, a person accused of a crime is not required to prove that he/she is innocent, and a person accused of a crime is presumed to be innocent under the law until he/she is proven to be guilty beyond any reasonable doubt.
The nature and scope of the presumption of innocence were delineated by the U.S. Supreme Court decisions in the case of COFFIN v. UNITED STATES (1895) and in the case of TAYLOR v. KENTUCKY (1978), but this presumption of innocence is limited to the right of a defendant under criminal law. The presumption of innocence is not a mandate that is imposed on all social discourse. It is not logical to assert, as a statement of fact, that a person is innocent until he/she has been proven to be guilty because it is possible for an innocent person to be convicted of a crime and it is possible for a guilty person to be acquitted of a crime.
There have been many comments recently that decry any attack on Governor Rod Blagojevich because it is alleged by these apologists for Governor Blagojevich that he is innocent until he is proven to be guilty. Although these comments are accurate with respect to any potential criminal conviction of Governor Blagojevich, the appeal for a presumption of innocence has no relevance other than as a tactic of persuasion with respect to public and media criticism of Governor Blagojevich. Some people may think that they have an ethical obligation to refrain from criticism of Governor Blagojevich because he has not been convicted yet of any crime, and it is probably not wise to prejudge criminal cases based on 30-second sound bites from cable news, but it also unwise to proclaim that someone is innocent on the basis that he/she has not been convicted of a crime. Because most criminal activity by government and corporation officials is never even investigated, and because only a small fraction of this criminal activity is the subject of criminal indictments, most government and corporate criminals will never be held accountable for their crimes.
A person should not be considered guilty in the court of public opinion just because he/she has been accused of, or indicted for, a crime, but it is permissible for people to form opinions based on the information that is available to the public. It is true that Patrick Fitzgerald may not be able to prosecute Governor Blagojevich successfully, but many people comment as if Governor Blagojevich's only alleged crimes involved his conversations with his chief of staff (John Harris) about selling the U.S. Senate seat vacated by Barack Obama. In the 76-page criminal complaint that was filed by U.S. Attorney Patrick Fitzgerald with the U.S. District Court, there are several serious crimes alleged to have been committed by Governor Blagojevich, and it appears that the evidence for some of these crimes is more substantial than the evidence revealed to the public about plans to sell the U.S. Senate vacancy.
If Patrick Fitzgerald later files a formal indictment against Governor Blagojevich that does not include more detail than is included in the 76-page criminal complaint, Patrick Fitzgerald will have a difficult time obtaining a criminal conviction of Governor Blagojevich, but the 76-page criminal complaint does not contain all of the evidence against Governor Blagojevich, and Patrick Fitzgerald has indicated that he plans to file more comprehensive charges against Governor Blagojevich. In the meantime, Governor Blagojevich is not guilty of any crime on the basis that I think he is thoroughly corrupt, but a public defense of Governor Blagojevich is not warranted on the basis that he has not been convicted yet of any crime.
On January 5, 2009, a Federal judge granted Patrick Fitzgerald's request for a 90-day extension in the time limit (which would have expired on January 7, 2009) to file a formal indictment against Governor Blagojevich. Despite the fact that Patrick Fitzgerald's request for a time-limit extension was routine and legal, and despite the fact that this request for a time-limit extension was not opposed by Governor Blagojevich's attorneys, I read a fatuous comment by an apologist for Governor Blagojevich that he was being denied his constitutional right to a "speedy" trial as a result of this 90-day delay. It is important that our Constitution should not be ignored, but it is also important that the words in our Constitution should not be distorted in a ridiculous manner to serve the interests of a corrupt politician.
Governor Blagojevich is not entitled to a presumption of Innocence because his crimes are not as serious as the crimes committed by President Bush II and Vice-President Cheney. As President Bush is about to leave office as one of the most unpopular Presidents in U.S. history, we need to remind ourselves that Congress has earned an even more dismal approval rating, but Governor Blagojevich is not entitled to a presumption of innocence because Congress has failed to address the needs of the American people. Governor Blagojevich is not entitled to a presumption of innocence because it appears that he is able to outwit Harry Reid, and Governor Blagojevich is not entitled to a presumption of innocence because he knows how to use disabled people as props at a press conference.
I am a member of an employee union, and I consider myself to be a union supporter, and I think that it is also worthwhile to consider that Governor Blagojevich is not presumed to be innocent on the basis that he is a smart politician who knows how to manipulate support from his pro-union constituents. It is said that Robin Hood robbed from the rich and gave to the poor, but it appears to me that Governor Blagojevich robbed from whomever was available and gave to Governor Blagojevich, and it is insulting to workers to portray Governor Blagojevich as some hero of the working class. If Bank of America had made the right offer of a bribe to Governor Blagojevich, I have no doubt that Governor Blagojevich would have been willing to betray the employees of the Republic Windows and Doors plant in Chicago.
Governor Blagojevich has a legal right to remain as the Governor until he is removed from office via impeachment. Because the Illinois State Constitution (Article IV, Section 14) does not require the Illinois State Senate to determine that the subject of impeachment proceedings has violated any criminal law, it is legally incorrect to state that Governor Blagojevich has a right to remain as the Governor until he is proven guilty of a criminal act in a court of law. The Illinois State Senate has the authority to determine whether Governor Blagojevich committed acts which justify his removal from office, and the Illinois State Senate should not require Governor Blagojevich to prove his innocence during impeachment proceedings, but the Illinois State Constitution does not require the Illinois State Senate to apply a presumption of innocence to the subject of impeachment proceedings.
Although some people may think that they are exhibiting a sense of fairness by complaining that Governor Blagojevich is innocent until proven guilty, discerning people should consider whether they think that President George W. Bush and Vice-President Cheney are innocent because President Bush and Vice-President Cheney have not been impeached for any crime related to the torture of detainees, or related to giving misinformation to Congress to justify the invasion of Iraq, or related to violations of the 1978 Foreign Intelligence Surveillance Act. For many years, I have thought that Ronald Reagan and George H.W. Bush should have been impeached for crimes related to the Iran-Contra Scandal, and I thought that they should have been prosecuted for these crimes when each of them left the office of President, but the fact that they were never held accountable for any crimes does not cause me to believe that they were innocent of these crimes.
In summary, the public and the media are under no obligation to refrain from criticism of government officials based on the widespread misunderstanding about the presumption of innocence, and this is particularly relevant in situations in which the public has access to credible information about government corruption. Although I am not holding my breath while waiting for indictments of the criminals in the Bush Administration, I think that President Bush II and Vice-President Cheney (and others) should be prosecuted for war crimes related to torture of detainees in various locations. Ideally, there should be endless prosecutions of the criminals in the financial services industry (and the government officials who aided and abetted the criminals in the financial services industry), and it is also important to prosecute corrupt politicians such as Randy Cunningham, Ted Stevens, William Jefferson, Bob Ney, Rick Renzi and Rod Blagojevich. I am sure that this article will not make me popular with attorneys, who often request that everyone should indulge a presumption of innocence on behalf of their clients, but the demand for a presumption of innocence is an artifice outside of criminal court.
ABOUT THE AUTHOR: I am retired after working 33 years as a claims representative for the Social Security Administration, and I am a card-carrying member of the ACLU.
The views expressed in this article are the sole responsibility of the author and do not necessarily reflect those of this website or its editors.
Displaying the spinelessness that has symbolized the Democrats during the reign of President Bush II, the U.S. Senate plans to accept the appointment of Roland Burris to fill the vacancy left by Barack Obama. Despite the fact that Roland Burris (in contrast to Rep. Danny Davis) has demonstrated his lack of integrity by accepting the appointment for which he has dreamed, there is nothing to be gained by the Senate pretending that they stand for principle. When Rachel Maddow asked Roland Burris if he thought that the Illinois State Senate should remove Governor Blagojevich from office, the empty-headed response from Mr. Burris was that "you're innocent until proven guilty", but otherwise Mr. Burris did not try to defend Governor Blagojevich. And so it goes.
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Blaine Kinsey (12 articles, 0 quicklinks, 0 diaries, 181 comments [80 recommended, 8 rejected]) on Tuesday, Jan 13, 2009 at 10:19:51 AM
Legal procedure requires that a person accused of a crime, must first be indicted by a Grand Jury, before an arrest can be made.
Fitzgerald is a Jesuit trained professional working for the central bankers. He was sent out by them to chase Blagojevitch out of office. In his haste, it was not the presumption of innocence that he violated, rather, he violated the governor's right to receive equal treatment under the law, the Guaranteed right,' to receive procedural "Due process of law," as provided for in the 5th amendment to the constitution and included in the "Bill of Rights. "
Possibly the reason why this is not talked about more could be because the prisons are full of people who never had the 'allegations' that first put them into prison, examined and brought forward into a legal 'criminal accusation' and certified by a Grand Jury. After a Grand Jury examines the charges, and signs a 'true bill,' that is certifies the charges, then a legal arrest could be made. Then a trial on the charges could be scheduled.
The arrest of Blagojevitch was a 'false arrest,' and a criminal undertaking.
It is straight forward, no one, including an elected official can carry forward with a criminal charge on their own; they must first put the 'allegations' against the accused, to the test by having a Grand jury make the determination on whether or not a formal criminal charge should be carried forward allowing for an arrest and trial.
Fitzgerald understands this in that he 'properly indicted' the republican Scooter Libby, that is he had a Grand jury see and hear the allegations against Libby, before making an arrest and bringing him to trial.
Fitzgerald discriminated against the democrat, Blagojevitch, and violated his civil rights by denying him equal treatment under the law.
The central bankers are not hoping that the people figure this all out, because it could bring about a shut down of one of their 'profit centers' the prison camp industries.
The question is not one of innocence or guilt, That is incidental to the entire matter. The constitutional guarantee that all people are to receive 'Due Process of law,' including the governor, is the issue.
If these serious sorts of violations of a citizens constitutional rights can happen to a high elected official, 'can you imagine how many ordinary folks have had their civil rights violated by being subjected to a professional investigator, such as the Grand inquisitor Fitzgerald?'
The big difference between the governor and Fitzgerald is that the people that Fitzgerald is 'fronting' for are less sweet than the governor and his associates. At least Blagojevitch got a few working people their back pay that the bankers were slow in paying them.
"Let he who is without sin, cast the first nuclear weapon."
The last line is to share a thought about what the most important issue in our world really is. The second most important issue could be how large numbers of folks are being rail-roaded into prison, and how merely obeying the law and presenting all allegations to a Grand Jury before any arrest is made, could prevent this.
The law is clear, a Grand Jury is the only party that can carry forward with a criminal charge against anyone.
This is the law of the land and has been the law of the land since 1791.
A curious fact is that many people including some lawyers are not fully knowledgeable about this issue and the significance that this basic legal protection has for all: "NO person shall be called upon to answer for a crime except upon the presentment of an indictment issued from a Grand Jury."
This is a guarantee embodied in the 5th amendment to the constitution.
"There is protection in procedure."
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Patrick (0 articles, 0 quicklinks, 0 diaries, 519 comments [22 recommended, 0 rejected]) on Wednesday, Jan 14, 2009 at 12:09:12 AM
My article was not written in defense of Patrick Fitzgerald, who was much too timid with regard to his investigation of and prosecution of the leak of information about Valerie Plame, and it is possible that Patrick Fitzgerald may fumble the case against Governor Rod Blagojevich. Because you do not focus on the issue of the "presumption of innocence," I will address your erroneous assertions that Governor Bagojevich has been denied the "due process of law."
You have distorted the meaning of the phrase that you quoted from the Fifth Amendment with respect to the case of Governor Blagojevich. The Fifth Amendment to the Constitution states: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury," but the truth is that Governor Blagojevich will not be held to answer for any crime without the presentment of an indictment by a Grand Jury. The Speedy Trial Act of 1974 provides that the government must present an indictment within 30 days from the date of an arrest, but a Federal judge is allowed to grant a request from either the government or the defendant (or on the judge's own motion) for an extension of that time limit. Governor Blagojevich's attorneys did not object to Patrick Fitzgerald's request for a 90-day extension in the time limit for filing a formal indictment against Governor Blagojevich. Your reference to the arrest of Governor Blagojevich as a "false arrest" is a premature ejaculation. If Patrick Fitzgerald does not present a formal indictment against Governor Blagojevich, Governor Blagojevich will not be held to answer for any crime.
You state: "As a civil matter, the governor has been 'Libeled and Slandered' in a crass attempt to remove what was given to him by the voters of the State of Illinois." Because the truth is not considered to be libelous or slanderous, you must have determined in your own mind that Governor Blagojevich is innocent of the charges made against him in the criminal complaint, and it is possible that you are correct, but you have made your determination based on your own prejudices rather than based on an objective analysis of the information that is currently available. You also have alleged that Governor Blagojevich is the victim of a conspiracy, but you provide no evidence of this conspiracy except our own opinions. Although you have a right to express your opinions, you should not confuse your unsubstantiated opinions with the facts.
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Blaine Kinsey (12 articles, 0 quicklinks, 0 diaries, 181 comments [80 recommended, 8 rejected]) on Wednesday, Jan 14, 2009 at 8:57:54 PM
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