NBC’s Abrams On Presuming Innocence & Duke Lax Case

NBC News’ chief legal analyst Don Abrams’ opinion piece in today’s WJS is titled “Presumed Innocent? Bernie Madoff?”

Abrams, one of the first in media to question the Duke lacrosse hoax and frame-up attempt, argues that presumption of innocence doesn’t require citizens to presume, outside of a jury box, that an accused is innocent.

Abrams says there are cases where the facts weigh so strongly against the accused that its not realistic to expect citizens to presume innocence or necessary for the administration of justice provided cases are determined within the legal system by those who do presume innocence:

Essentially [with presumption of innocence] 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.

I disagree with much that Abrams says.

One reason I disagree is that presumption of innocence enables citizens to maintain as skeptical an attitude as possible about the defendant’s quilt until at least after a trial outcome. (In many plea bargains, innocent people declare their guilt because the plea deal allows them to go free based on time already spent in jail awaiting trial.)

I’m sure the WSJ will publish letters from attorneys who can explain better than I why presumption of innocence is something citizens should strive to maintain at least through trial outcome.

Regarding the Duke lacrosse case Abrams says:

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.

Abrams should've been more specific about what he meant by “people who suggest that the presumption of innocence be applied in all aspects of society [.]” (italics added)

I wonder if he didn’t mean something like “in all cases involving people accused of lawbreaking.”

There’s a huge difference between the two phrases.

The “evidence” presented in Spring 2006 to support the frame-up attempt was certainly “flimsy.”

However, Abrams overstates when he claims that “[t] hose of us who examined the evidence, even superficially, quickly realized the case was flimsy at best.”

Many in media and many who accessed the media (some Duke faculty and Durham “activists,” for instance) looked at the “flimsy” evidence and pronounced the players guilty.

The Duke lacrosse case reminds us how hard it can be for people in certain circumstances to look past their presumptions to evidence challenging or outright contradicting their presumptions.

We’ll do best in our pursuit of justice by encouraging all citizens to value the presumption of innocence at least to the point that they maintain the kind of skepticism that in the face of “open and shut” cases helps prevent people from “rushing to judgment” and joining witch hunts.

Thanks to cks for the heads up on the Abrams piece.

I hope she and others will keep their eyes out for the attorneys letters I’m sure will appear in the WSJ. I’d like to post on them.

Here's another link to Abrams' piece.