One of the ongoing themes of this blog and the accompanying Facebook discussion page that inspired it is the concept of #Culturalinertia.
More specifically, shifting the way we think and talk about the issues that have become so ingrained in our culture that we may not even recognize the influences that prevent us from progressing forward with new thinking and approaches to the problems at hand.
We have explored, and will continue to explore, many aspects of this cultural phenomenon.
One of the things that makes this Cultural Inertia difficult to expose is the emotional attachments we form to the thinking that has us bogged down and stuck on the path we’ve been on for so long, especially if we attempt to deal with specifics that we all have strong opinions about.
The issue today is the concept of “Innocent until proven guilty,” and how it applies to our society outside of a court of law.
It has been a core tenant of our American legal philosophy that even someone suspected of committing a crime is to be considered innocent until proven guilty in a court of law before a jury of their peers.
However, over the years, that has expanded to a societal claim that we as a society must treat others with this same presumption of innocence. Despite this claim, society does not function this way. It never has. It is not supposed to.
We have seen many people lose their jobs over the #MeToo movement without a criminal trial regarding the allegations. We have seen many people lose their careers and public standing over videos of them giving racist rants in public spaces have surfaced, without a court of law making a determination of discrimination or assault.
After Dylann Roof confessed to killing multiple people in a church in Charleston, South Carolina, and his personal manifesto was found along with motivations posted on his social media, I commented on his guilt. I was told we needed to wait for a court of law to decide his guilt at trial before we could speculate.
He had confessed. We had witnesses. We had proof. Everyone knew he was guilty. That wasn’t the issue, the issue was could the evidence be presented in a court of law beyond a reasonable doubt without committing a procedural violation allowing the cased to be dismissed on a technicality.
Even if the court had found him “not guilty’ for any reason, it would not have changed the fact that he had committed this crime.
Saying he did would not open us up to charges of “defamation” or “slander” for which we could then be sued.
This is exactly why courts use “Not guilty” instead of “Innocent” as a final verdict option.
For an example of the other perspective, our current President famously took out a full page advertisement in a major United States newspaper calling for the execution of five young men that had been accused and convicted of a horrible crime. They were later exonerated of all charges, actually proven innocent of the crime for which they had been convicted.
Those men have no legal recourse against the man who called for the public to execute them for something they had not done. Their accuser is now President of the United States, he has never retracted or apologized for this. He has actually defended it.
The important points being that it is possible to be convicted of a crime of which you are innocent and it is possible to be found guilty of a crime of which you are not innocent.
Now it is also important to note that while there is a statute of limitations preventing some criminal charges from being prosecuted after a specific amount of time has passed, there is no such statute of limitations on public outrage.
This is an important distinction, especially when we get into evaluating personal and professional qualifications for elected and appointed governmental officials.
A political campaign or a political confirmation hearing are not criminal law courts (with the exception of a Senate impeachment trial) and do not operate under the same presumption of innocence.
When running for mayor, governor, Senate, House of Representatives, President, or any other elected office, the candidate is basically put on public trial. In this process, the press serves as prosecutor, the campaign team serves as defense, and the public serves as the jury. This jury must only reach a majority verdict not a unanimous one, and in the event of a tie, a retrial (run-off election) is performed.
Both Presidents Bill Clinton and George W. Bush were known to have, and admitted to, using drugs in their youth. Clinton with marijuana and Bush with cocaine. The public elected them both despite these issues, neither of which they could have been arrested and tried for at the time they were running for President due to the amount of time that had passed and the lack of proof beyond a confession offered while not under oath and not having been read their Miranda rights prior to confessing. If they had confessed to or been suspected of murder instead of recreational drug usage, every aspect of that would have been much different.
Now we as a people are faced with a Supreme Court candidate that has been credibly accused of an attempted rape. The only third party witness is also a named accomplice and he refuses to testify. So it is the word of two different people against each other with no physical evidence available to provide proof.
A court of law would not convict him based on this allegation. Nor would it provide him, nor any government official, grounds for a “defamation” law suit.
According to many courts, a public official is a government employee who has, or appears to the public to have, a significant role in the business of government and public affairs. Such people are considered to be held in a position that would draw or even demand public scrutiny. They also are considered to have significant ability to defend themselves regarding such public scrutiny and therefore cannot claim defamation unless the statement is not only proven to be false, but the defamer is proven to have shown reckless disregard for that falsity. New York Times Co. v. Sullivan, 376 U.S. 254.
This rule also applies to public figures. Not all courts have not specifically defined “public figure,” but they do identify candidates for public office and people who have achieved pervasive fame or notoriety as fitting this description. Curtis Pub. Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). A public figure could also be someone who voluntarily enters the public eye because of a particular public issue or controversy.
Courts have upheld this rule based on the U.S. belief that the public should be able to freely discuss national issues without fear of repercussions. If a public official or public figure believes that he or she has been defamed, he or she must prove with convincing evidence that the statement is false. The public official also must prove that the defamer showed reckless disregard for that falsity, either because the defamer knew the statement was false or should have known. Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979).
Just as a defendant is supposed to be set free if they cannot be found guilty beyond a reasonable doubt; a nominee for a lifetime appointment to the Supreme Court should be deemed unimpeachable beyond a reasonable doubt at the time of appointment.
From allegations of sexual abuse, clear proof of multiple counts of perjury, and possible qualification discussions with members of Trump’s personal defense firm, far too much reasonable doubt exists for his confirmation.
There is no requirement for presumption of innocence in the court of public opinion nor is there a statute of limitations on public outrage and outcry.
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