People v. State

Thus writes Justice Ginsburg, joined by Justices Sotomayor and Breyer, in their dissenting opinion in Cavazos v. Smith, in which the majority summarily reversed a Ninth Circuit decision holding that no rational trier of fact could have found beyond a reasonable doubt that the defendant was guilty of shaking her grandchild and causing his death in 1996. As a result of the majority’s decision, the grandmother, who has been free for the last five years, will now have to return to prison.

The very fact that the presumably-rational Ninth Circuit judges found that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt should itself demonstrate to a rational mind that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Even the majority on the SCOTUS admitted that “Doubts about whether Smith is in fact guilty are understandable.” If those doubts are understandable, they’re reasonable.

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Strike the Root links today to my recent post on the Presumption of Innocence, which largely consisted of quoting J. Tony Serra on the subject. I wanted to add one thing to Serra’s inspirational words: A recent Gallup poll found that, for the first time since Gallup began asking in 1969, more Americans support legalization of marijuana than oppose it. My view is that, so long as fewer than 92% of Americans (nevermind 50%) have supported the criminalization of marijuana, so long has the criminalization of marijuana been exposed as itself an infamous crime.

If 11 out of 12 jurors in a criminal case vote to convict, only 91.66% of those jurors have voted to convict. We righteously require more than that to overcome the presumption of innocence and convict a person of a crime.

If we the people really believe that government derives its just powers from the consent of the governed, and that we are endowed by our Creator with the inalienable right to the pursuit of happiness, then we should presume innocent not only every person but every person’s pursuit of happiness, and it should take a lot more than just a bare majority of self-serving politicians to rebut that presumption and to deem anything anybody does a crime.

My idol Tony Serra is quoted in Lust for Justice as saying to a graduating class of law students:

I believe that the presumption of innocence is a fabulous thing. It’s perhaps the most cherished thing that we have given body to as a culture. Americans don’t really stand for very much. We’ve invented the cowboy movie. We’ve certainly invented a lot of implements of destruction: military airplanes, deadly toxins, and bombs. We jealously guard our atomic weaponry and disallow everyone else to have it. But on the good side, we’ve given concrete form and expression to the concept of presumption of innocence and we’re giving it now to the world. It’s really one of the pillars of a free society. We presume innocence. We make the prosecution prove its case beyond a reasonable doubt, to a moral certainty. What a fabulous notion!

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The above was the original subtitle of this blog, before I changed it sometime back to “Fairly Undermining Public Confidence in the Administration of Justice.”

But you know who really excels at illuminating the philosophy and practice of law and liberty? Matt Brown, relative to whom I’m a piker. I want to highlight here a couple paragraphs from his latest post.

First:

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