It didn’t hurt Danny Abrams, young lawyer cum TV pundit, to have a father named Floyd as he sat at his desk in his rumpled shirt in the swamp lands of Secaucus, New Jersey.  He was a nice kid, though one wondered how someone without any real experience actually being a lawyer got to talk about it on cable television.  Not that there is anything unusual about that.

But when Danny became Mr. Abrams as he got kicked upstairs, it was unclear just what he brought to the table.  Dan has clarified this in his WSJ Op-Ed, and I wonder what happened to the kid with the rumpled collar.

People constantly complain to me about news coverage of criminal cases. “What happened to the presumption of innocence?” they ask at almost every turn. Well, I’m tired of it.

First, I seriously doubt that people constantly complain about this aspect of news coverage.  I hear just the opposite, so who is doing all this complaining?  But there’s a difference for Dan.  He’s now the Chief Legal Analyst for NBC News.  Put aside that his lack of legal experience, since this is entertainment, but since when is someone who is paid to be factually accurate entitled to grow tired of doing his job? 

As a citizen — or even a TV legal analyst — am I required to presume innocence, i.e., that the authorities arrest the wrong person in every case? Not a chance. Imagine how this might play out on television:

“So Dan, how bad is it for (insert name of minor reality-show celebrity here) that the authorities found a pound of cocaine and four ounces of heroin on his person and in his car, the entire arrest was captured on videotape and the defendant confessed the drugs were his?”

“Bad? Bob, I have to presume the defendant innocent, so I’ll presume those drugs were planted by corrupt police officers well before the car came into focus on the tape. And that confession? Well, it must have been coerced.” That would hardly reflect an effort to assess and evaluate the legal strategies and evidence as fairly and objectively as possible.

Citizens can hold any view they want, right, wrong or otherwise.  I assume that Dan learned in law school that the presumption of innocence applies to the law, not to public opinion.  As a TV legal analyst, one’s duty is accuracy.  Unless he witnessed the crime, he knows no more about it then he’s told, and hence lacks the basis for a conclusion as to perceived guilt or innocence. 

Worse, though, is Dan’s presentation of the options.  The presumption of innocence doesn’t demand that he presume the cops planted drugs, but that he not editorialize guilt as a concluded fact.  He can opine away with the caveat that it is based upon the information currently known.  I don’t expect legal analysts to be omniscient or have secret powers to know the future.  Does Dan?

Essentially 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.

Only someone who has never noticed that 97% of all criminal defendants end up convicted can say that we stack the legal deck in favor of the defendant.  One would hope that a network legal analyst knew better. This is where hyperbole overshadows experience, and frankly raises some serious questions about Danny’s depth of understanding.  Remember, this is the guy who tells people about the law.  Eek.

While he’s under no constitutional duty to “embrace that legal fiction,” is he really free to substitute his own personal guesswork and bias for facts and reality?  Perhaps some NBC executive can best answer that based on what they expect from a legal analyst.  It would be my hope that words that come out of his mouth would be reasonably reliable, and the he would have a legal, if not moral, duty to make a stab at accurate reporting.

The same applies, for example, to hearsay evidence. It’s generally inadmissible in court, and yet most of us live our lives based on what people we trust tell us they heard or learned.

Now Dan is absolutely right when he says that most of us, in our ordinary lives, rely on hearsay.  But that’s not because hearsay is so wonderfully reliable, but because we have no other choice.  After all, we can’t get original source material for every decision or thought we have as we go about our daily business, so we are constrained to rely on probability.  But is Dan, the network legal analyst, saying he trusts cops, and if cops say so, then it must be?  Did he miss that day in evidence class where they explained why hearsay isn’t sufficiently reliable?

What about those like CNN’s Nancy Grace who seems to presume every defendant guilty? Criticize her if you like, but such behavior doesn’t mean the rest of us must feign ignorance. We can question police and prosecutors without necessarily presuming they are corrupt or misguided.

This quote is taken just because it makes no sense whatsoever, and it’s good to see that Dan, despite his lofty analyst position, suffers from the occasional non-sequitur just like the rest of us. 

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.

I suspect this is what happens to exceptionally inexperienced lawyers who are told that their every thought is meaningful.  Dan Abrams isn’t a bad kid, but he’s never had any experience in the trenches and operates under the mistaken impression that he knows what he’s talking about.  To the public, he’s a pundit.  To real lawyers, he’s simplistic and naive.  I always liked Danny.  But he would have done better to spend a decade in the trenches than on air.