Lies the government told you (28 page)

We must stop this foolish war, and stop letting the government talk us into it year after year, election after election. As we have learned throughout this book, the government does two things very well: it scares us to death, and it spends our money. The war on drugs is no different than any other government scam employed to steal our money. When will there be a “War on Big Government,” in which the taxpayers get money from Washington to keep the federal government from spiraling further out of control?

Lie #12
“Everyone Is Innocent Until Proven
Guilty”

One beautiful day in Washington, D.C., a twelve-year-old girl named Ansche Hedgepeth was arrested by an undercover transit officer on her way home from school. She was handcuffed, taken to a juvenile processing center, fingerprinted, photographed, and detained for three hours. Ansche was not arrested for murder, or assault, or theft; rather, she had the audacity to eat a French fry on the subway. And the United States Court of Appeals for the D.C. Circuit sanctioned her three-hour incarceration.
¹
(This case, which would have normally been brought in a District of Columbia city court, was filed in federal court in Washington because the girl’s mother claimed that the Washington transit authority had violated her daughter’s right to equal protection under the law.)

If children on the subway are subjected to such unconstitutional conduct, imagine what adults face when police officers have the right to lock them up and treat them as guilty before even the semblance of a trial is held. And then imagine a court system that denies the presumption of innocence until the jury is impaneled. And then imagine judges who permit it; and a government that denies it.

Probably the least questioned and most believed government lie is also the most famous maxim of the American judicial system: that all persons are presumed “innocent until proven guilty” beyond a reasonable doubt. This presumption of innocence is a standard taught to the youngest of school children and which the government hails as a founding principle of justice because it presumes that, like the oft-repeated Lord Justice William Blackstone ratio, “Better that ten guilty persons escape than that one innocent suffer.”
²

Of course, “innocent until proven guilty” has been at the core of Western judicial systems since biblical times.
³
We are indoctrinated so thoroughly that the average person rarely considers whether the phrase is true or not. Yet when we carefully examine the system, we find that it does not function as the government would like us to believe. Beneath the surface of various platitudes, the falsity of the presumption of innocence
becomes readily apparent.

Presuming the Presumption

The presumption was first recognized by the United States Supreme Court in
Coffin v. United States
(1895), in which it stated that “the principle that there is a presumption of innocence in favor of the accused is the
undoubted law
, axiomatic and elementary, and its enforcement
lies at the foundation
of the administration of our criminal [law] system”
⁴
(emphases added). Somehow though, this undoubted law of presumed innocence has been tossed to the wayside in the courts, though the government continues to teach it in its classrooms. But what was once elementary is now a complicated and convoluted field of the law.

In 1951, in the case of
Stack v. Boyle
, the Supreme Court held that “the traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction . . . Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.”
⁵
Yet less than twenty years later, President Nixon signed a bill into law that allowed judges to consider the factor of “danger to the community” in noncapital bail cases, with the Department of Justice “arguing that the presumption of innocence was
merely a rule of evidence
with no application to pretrial proceedings”
⁶
(emphases added). Apparently, even though one is “innocent until
proven
guilty,” what the government hides is that this principle applies only
during
the trial, and that the government believes that defendants are “guilty until trial,” if convenient for the government, under the auspices of community safety.

Does that make any sense? Before you’ve even had a chance to go to trial, pretrial proceedings, which contain much lower protections of the innocent than those of a trial, can drop what is often cited as the most elementary principle of the justice system. Astoundingly, what the Supreme Court had just reaffirmed in
Stack v. Boyle
as a traditional freedom that secured the presumption of innocence was now being legislatively eroded on the claim that such grand principles do not apply between an arrest and the beginning of the trial, a period of time that is almost always much longer than the trial itself.

Even if we were to accept that people the government deems “dangerous” should be kept separate from the community, they do not deserve to be treated like convicted criminals. Yet even though the government has often claimed that they are not, this is not the reality. Once in jail, there is no distinction made between the “innocent” and the guilty. Instead, the indicted-but-not-convicted prisoners are mixed in with those convicted “in overcrowded jails . . . regularly subjected to degradations and restrictions amounting to punishment.”
⁷

Imagine that, punishment beginning before you have even had a chance to prove your innocence (even though the government should actually be proving your guilt). Is that consistent with the presumption of innocence? The U.S. Court of Appeals for the Second Circuit, in
Wolfish v. Levi
(1978), certainly did not think so. It held, in this class action suit brought by all persons detained at New York’s Metropolitan Correction Center, that the “restrictions” imposed on innocent defendants were unjustified and violated “their right to be treated as innocent until proven guilty.”
⁸

Unfortunately, the Supreme Court of the United States chose to approve the actions of the government, while attempting to maintain the myth that one is innocent until proven guilty. On appeal, then-Justice Rehnquist wrote that the presumption of innocence did not have any application before trial.
⁹
The result of this, noted by Justice Thurgood Marshall, was effectively the same as if the Court had chosen to decree that the “presumption did not exist at all.”
¹⁰

These cases, which assume that once you are arrested you will be considered guilty until your trial starts, began the resulting erosion of the presumption of innocence. And while schoolchildren are still taught that this maxim is true (at least in government-owned schools), the government continues its lie, claiming that it has not abridged this right and justifying itself with the constant “for the public safety” argument. These “supposedly innocent” people cannot be judged as such because they may present a danger to society. And whether or not the argument has justification, its outcome still results in people—like little Ansche Hedgepeth—who should be considered innocent under our system being adjudged as guilty and punished before they have the chance to defend themselves. In essence, these people are considered “guilty” until they have a chance to prove their innocence at trial.

If our courts can lose sight of such a presumption of innocence and continue to authorize the police to arrest you at any time for even the most minute crimes, like not
wearing a seat belt while parked
, or
juggling cigar boxes
on a sidewalk in Times Square in New York City without a license, or being
quietly drunk in a bar
in the State of Texas recently, then our rights extend only as far as the police subjectively allow.

Guilty Until Proven Insane

While pretrial presumptions of innocence are allowed to be thrown out the window, the government reminds us that
during
trial, one is still “innocent until proven guilty.” Strangely enough, this, too, is also not always true. In certain states, when a defendant in a criminal case asserts the insanity defense, the burden of proof as to his insanity rests with the defendant.
¹¹
Given that insanity means that you are legally, if not factually, innocent—because you could not have the mental capacity required by the law to commit the crime—then forcing the defendant to prove his own insanity (and thereby his innocence) is a direct violation of the presumption of innocence, which is supposed to permeate our entire justice system. While the Supreme Court in 1895 stated that in a federal prosecution the burden would be on the prosecution to prove that the defendant belongs “to a class capable of committing crime,”
¹²
some courts still allow the presumption of sanity, and therefore guilt, to stand unless the defendant affirmatively proves his insanity and therefore his innocence.

Such conduct was upheld by the Supreme Court in 1952, in the case of
Leland v. Oregon
. The Court held that an Oregon law requiring that the defendant prove his insanity
beyond a reasonable doubt
was not a violation of the Fourteenth Amendment, even though it essentially required him to prove his innocence.
¹³
This is especially shocking considering that, unlike other states that only required the defendant to prove this by a preponderance of the evidence, Oregon required proof beyond a reasonable doubt. This is the same burden, the same obligation of coming forward with evidence, the same level and quality of proof as the government must meet in its case-in-chief in order to obtain a conviction. This is also an utter rejection of the presumption of innocence.

What is most shocking about such a requirement is that it shifts the burden of proof from the prosecution to the defense. In every criminal trial, the prosecution has the burden of proving every element of the charged crime—every component of guilt—beyond a reasonable doubt. The defendant does not have to examine any witnesses or present any evidence. The defendant does not have any burden; he is not required to prove anything at all. This is the meaning of “innocent until proven guilty,” that the defendant is presumed innocent and the prosecution must prove to the jury that he is guilty
beyond a reasonable doubt
.

Therefore, when the courts enforce a requirement that the defendant prove his insanity, this means that they are presuming him sane, thereby also presuming an element of guilt. If the jury takes as a given
any
element of guilt, and the defendant needs to prove to the jury that that element is not so, that is a perversion of our system of justice. The courts should never sanction such a requirement. Yet some do, and the Supreme Court has allowed them that discretion. And still we believe that the presumption of innocence is holding strong?

Discarding Actual Innocence

Sadly, the Supreme Court has also held that once an innocent man is found guilty by a jury, he cannot appeal on the basis that he has proof of his
actual
innocence
. The court held that the Due Process Clause did not require that “every conceivable step is taken, at whatever cost, to eliminate the possibility of convicting an innocent person.”
¹⁴
So while the basic premise of our system is preached to be that no innocent man be jailed, no matter how many guilty go free, apparently this does not apply when the cost of ensuring this gets too high.

The idea of a cost-benefit analysis applied to innocents in the justice system is not the most heartwarming of thoughts. Leonel Torres Herrera, who was convicted of killing a police officer and once convicted of that death, pled guilty to the death of another, is the example of where such a path will lead. After being sentenced to death, Herrera appealed based on “actual innocence.” In effect, he provided proof that he had not committed the crime, including the affidavits of a lawyer, a former classmate, and a former cellmate of his brother’s, all three of whom swore that Herrera’s brother had confessed to them of committing the crime. He also had a statement from his nephew attesting that he had witnessed his own father kill the police officers. This was the evidence that Herrera presented in order to argue that he should not be executed. None of the five people had reason to lie. Yet the Supreme Court decided that this was not important and that “actual innocence” was not a matter for appeal, since the defendant could instead work to get a pardon.

Imagine being jailed, about to be executed for a crime you did not commit, and having to depend on an elected official to take mercy on you, even when this will ensure that he is portrayed as “soft on crime.” This is what happened to Herrera. Though he appealed to the governor, he was denied and the heartless, lawless future President who denied an innocent man his life was then-Governor George W. Bush of Texas. Only four months after the Supreme Court ruled that actual innocence does not matter, Leonel Torres Herrera was executed. His last statement was, “I am innocent, innocent, innocent. Make no mistake about this; I owe society nothing. Continue the struggle for human rights, helping those who are innocent . . . I am an innocent man, and something very wrong is taking place tonight. May God bless you all. I am ready.”

How can we say that the idea that “it is better for guilty men to go free than for one innocent man to be punished” is still a mantra of our justice system, if a man who has definite proof of his innocence cannot be saved by the highest court in the land? The justices of the Supreme Court did not seem to have much of a problem permitting the execution of a man, even when confronted with proof of his actual innocence, justifying their actions by stating that the courts would be too busy if they were forced to review every case. But this is not every case: Herrera brought forward more than doubt about his guilt; he brought actual evidence of innocence. And if that is the case, how can anyone tell him that he deserves to die? Of course the court also noted that
assuming
that “in a capital case, a truly persuasive demonstration of actual innocence made after trial would render the execution of the defendant unconstitutional . . . the threshold showing for such an assumed right would necessarily be extraordinarily high.”
¹⁵