The year after I graduated from one of the top law schools in the country I went to clerk for a Federal District Court Judge. I tell you this up front because I want you to understand that what I am about to tell you is not an uninformed statement.
But this is the only smart thing she did, and despite her somewhat vague establishment of credibility, what follows makes clear that whatever cred she might otherwise have enjoyed has been squandered on a pocketful of mumbles, such are promises.
Y’all need to delete the phrase “innocent until proven guilty” from your lexicon until you are prepared to use it correctly. Seriously. Next one of you I hear blithely parroting this phrase in the wrong context, I might just have to whack you upside the head.
Georges, like so many of you, has allowed what’s left of her mind to be twisted around Kavanaugh, deconstructing the entirety of law for fear that it will serve to aid him in getting away with “it,” whichever “it” you fear he’ll be getting away with. Some argue that Kavanaugh is entitled to the presumption of innocence. Georges, well, disagrees.
That is some bullshit right there. That’s not how the law works, and it’s not what “innocent until proven guilty” signifies in our legal system. And to use the phrase in this way is to perpetuate injustice and misogyny.
A compelling argument, right? It’s correct that those arguing that Kavanaugh enjoys the “presumption of innocence” are mistaken, as it applies only to criminal prosecutions. But the reason for the rule, the rationale for the presumption, remains. We presume innocence because it’s impossible to prove a negative and because our jurisprudence has chosen to side with letting the guilty go rather than condemning the innocent. No, the rule doesn’t apply here. Yes, the reason for the rule remains reasonable.
But if there is anything Georges is not, it’s reasonable.
The phrase is applied in the context of the 8th Amendment, which reads in toto: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” In evaluating 8th Amendment claims, courts operate under the presumption that “a man is innocent until proven guilty” and therefore we cannot inflict certain punishments on a criminal defendant unless and until he is actually convicted.
This is sheer lunacy. There is absolutely nothing about this bizarre rant, that the presumption of innocence exists only for 8th Amendment bail purposes, Sure, it applies to the 8th Amendment, but it also applies to every aspect of a prosecution as a presumption, and more importantly, to how we frame the resolution of an accusation in general.
But Georges isn’t done polluting what remains of her reader’s heads. It’s not just that the presumption of innocence is “some bullshit right there,” but there is another presumption, a better presumption, that she needs to get out.
There is actually a standard that courts use to decide whether a civil plaintiff or a criminal indictment may proceed past the allegation stage and into the investigative and trial phases. It’s well settled law in the US, so much so that every first year law student learns it in their first civil procedure class and, if they become a litigator of any stripe, will end up using it over and over again for the rest of their legal career. As a judicial clerk I applied this standard in nearly every matter I worked on every day.
At this point, one has to wonder what district court judge had the pleasure of her insight.
Taking all the facts alleged in the complaint as true can be better explained with three words: “Believe the plaintiff.”
See what she did there? Smooth. It’s not that she’s making this up from whole cloth, as it’s correct that a court, when considering a motion to dismiss, will accept the allegations as true, but that it’s applicability is limited to whether the allegations, even if true, would suffice to make a claim. It’s the lowest of the low threshold, the barest minimum for a claimant to be allowed to waste a court’s time. What it is not is the shifting of the burden of proof from the accuser to the accused.
So, when we say “believe women” when they allege harassment and assault and abuse, that is, in fact, the appropriate legal standard being applied to the question at issue, ie., should we force the accused to have to respond to the accusations being levied against him? We do not and in fact, SHOULD NOT be presuming the defendant did not do anything wrong. We should be presuming that the accuser’s claims of what the defendant did are what actually happened. ONLY AFTER those accusations are investigated and the results of the investigation presented in court do we get the right to choose who we believe, to declare and take as truth that someone is innocent.
And we’re back to nothing about what Georges says being remotely correct. Her conflation of concepts, that allegations, if true, would suffice to overcome a motion to dismiss for failure to state an actionable claim only gets her in the courthouse door. The burden remains entirely, and always, on the accuser to then prove her allegations are true.
But then, if we’re applying these concepts to the Kavanaugh hearing, none fit properly because it’s no more a trial for Kavanaugh than it was for Ford. There are no presumptions applied as a matter of law. There is no “taking the allegations are true” for the sake of a motion to dismiss. None of this has any applicability to a political proceeding per se. To the extent the underlying rationale for their existence remains sound reasoning, it applies, but only because good reasons remain good reasons, not because there are any rules that say so.
More to the point, yet another critical concept of law is under attack because it might inure to Kavanaugh’s benefit. Are the woke now against the presumption of innocence for all defendants accused of sexual assault in criminal courts? Is the presumption of innocence now misogyny, along with due process?
As they vilify the constitutional concepts that protect the innocent for the sake of attacking Kavanaugh, do they grasp the harm they do to the law because of their hysterical zeal to destroy this one enemy? No. No they don’t. Not even a little bit.
They say truth is the first casualty of war. Law is gaining quickly.