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.