Presumed To Believe

As a tactical matter, it was smart of Liz Georges to begin by explaining why she wasn’t some graduate of the Twitter School of Law, but a person with credentials, worthy of credit.

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.

34 thoughts on “Presumed To Believe

    1. Kathleen Casey

      I was just about to say that.

      Cooley?? The Grey Lady would let it slide. Will let it slide.

  1. Guitardave

    “They say truth is the first casualty of war. Law is gaining quickly.”
    …that’s because just laws are the physical embodiment of that oft spoken, ethereal, and un-definable T-word..
    ….but you know this. Nice post…that a person with cred would say toss ITPG…That literally sent a chill down my spine…LIT…nevermind..

  2. DaveL

    The attempt to pin “Innocent until Proven Guilty” to some particular stage or form of legal proceeding is a red herring. The burden of a claimant to prove what he or she claims is not even unique to law. It’s a feature common to all disciplined truth-seeking. It’s the reason why scholarly works are expected to cite sources. It’s the reason why mathematicians write proofs. It permeates every level of our society, from having students write exams to checking ID at the liquor store.

    1. AngryChiAtty

      Of course you would say that. Scholarship, mathematics, and liquor stores are tools of the patriarchy you shitlord

      1. Billy Bob

        Are you having a 1968 fflashback, or are you merely bbipolar? Innquiring Minds demand answers.
        Let me guess: You are LGBTQ, trapped in an ungodly body of distorted proportions. You hate yourself and everyone surrounding you. STop the world, you wanna get off! Rahm Emanuel-breath. We feel your pain, yes we do.
        P.S., We luv U. Chicago. Been there, done that, yessiree Bob. A great universe city.

  3. Mark Brooks

    Mr. Greenfield, I am a Jamaican who lives in Jamaica. Our justice system came from Britain and our Final Court of Appeal is still the Privy Council. I am a Justice of the Peace (Lay Magistrate), having received my commission in 1987. Part of my duties included presiding over Petty Session Court (Criminal and Civil) as well as Juvenile Court. As Justices gain seniority (age !) they are excused from Court duties and I am no longer serving on the bench

    Having seen the “circus” going on the USA over the SCOTUS nomination of Mr. Kavanaugh, I am amazed at the comments made by many attorneys and law professors that I see on TV. I say this, because your legal system descended from the same system as ours, where the presumption of innocence was sacrosanct.

    I keep hearing the term “credible” being banned about as if it means “truthful”. As far as I am aware “credible” means “worthy of belief”. An allegation that is deemed “credible” means that is “worthy of investigation” and nothing more.

    When the allegations by Dr. Ford were first presented, they could be deemed “credible”. (Note, I was skeptical about certain aspects of the allegations, but that is another matter and the prosecutor, Ms. Mitchell was provided an excellent summary). When Mr. Kavanaugh declared that he had done no such thing, that did not diminish the “credibility” of the allegations. As Dr. Ford alleged that Mr. Judge was involved in the actions, I viewed him as complicit in the alleged actions and so not an independent witness. So his declaration did not diminish the “credibility” of the allegations.

    When Mr. Smyth declared that he “had NO knowledge” of the allegations, the “credibility” of the allegations diminished some what. However, Mr. Smyth was apparently a close friend of Mr. Kavanaugh at some time and had endorsed him for the position, the possibility that he might make a false statement existed. Then Mrs. Keyser. termed as a “close friend of Dr Ford”, said she “does not know Mr. Kavanaugh and has no recollection of ever being at a gathering with him and Dr. Ford”. As she is supposedly a close friend of Dr. Ford, in my mind, she would not be supporting Mr. Kavanaugh and as such, Dr. Ford’s allegations were then no longer “credible”.

    Whether Mrs. Keyser witnessed the alleged assault or not is immaterial, as the underpinnings of the alleged incident is based on these people being present together at this gathering.

    I am sorry for rambling on, but I find it “incredible” (could not resist the pun) to see the these attorneys (some said to be former prosecutors) and law professors equating “credible” with “truthful”.

    Cheers
    Mark Brooks

    1. SHG Post author

      It’s unfortunate that you’re no longer presiding in court, as every litigant deserves a judge (lay or not) with your ability to remain above the emotional fray. Your clarity in the face of the insanity occurring here is deeply appreciated.

      1. Mark Brooks

        Mr. Greenfield, Thank you for kind comments. I did enjoy my time on the bench, especially keeping the Court Clerks “in place” when they would want to protect police friends who were abusing the system.

        As for for my service, it is common practice here, to paraphrase Gen. MacCarthur, “old Justices never die, they just fade away”.

        I should add that I enjoy your wit in your twits !
        Cheers
        Mark Brooks

        1. OtherJay

          Mr Brooks,

          As a non-lawyer watching this play out on television, points of view from ‘above the fray’ such as yours and those of our host are much appreciated. It is unfortunate that people like Ms. George have such a large platform and audience.

          Cheers!

  4. PseudonymousKid

    Dear Papa,

    If non-lawyers fuck up “innocent until proven guilty” why in the hell does Georges* with all her education think that they’re gonna get 12(b)(6), especially considering she misses the point herself? All those words and nothing about notice pleading, you know the whole purpose of filing a complaint? Tsk. Tsk.

    *You call her George a lot. Her post says “Georges.” I don’t think you did that on purpose.

    Best,
    PK

      1. Patrick Maupin

        Still a couple of uncorrected “George” out there as of last time I looked. Of course, the lady herself remains uncorrected and that’s unlikely to change. Also, of course, you should take this comment out with the rest of the trash.

        1. SHG Post author

          Nah, I’m in the mood to leave it in. I see how I missed them in my search, so thanks for letting me know. Frankly, the little stuff like typos bothers me less and less lately, as I’m burning out on the realization that I can’t seem to get my point across in the way I intended it. And I am becoming increasingly aware that nobody really seems to care enough to think harder than twit-length platitudinous crap. So, why bother?

          1. Kirk A Taylor

            I try to point out typos only when they affect the message you are sending. I don’t want to come across as a grammar Nazi (I’m more of a grammar Naxo). But I figure if I struggle to get the meaning, and I’m a Super Genius (says so right on my blog) others probably struggle as well.

            1. SHG Post author

              It’s that I don’t want to correct typos. I do, and appreciate being told of them. But if I’m not getting my point across, typos or not, correcting typos isn’t good enough.

          2. Patrick Maupin

            You’re looking at it wrong. There’s over 7 billion people on the planet. All those people that didn’t comment? They not only got your point but agreed with it.

  5. Jonathan

    Writing intelligently about this could educate lay-people about standards of proof. At least any who were interested to learn. But it’s all drivel out there.

  6. Anonymous Coward

    Georges’ fixation on wording and a subsectionof a single ammendment reminds me of the magic word “Sovereign Citizens” use to claim immunity from the law. Also her recitation of her CV as opening seems like argument from authority.

    1. SHG Post author

      Being a lawyer is a minimum standard for legal commentary. Maybe the law clerk piece puts here into the argument from authority category, but given how loony she is, she needed all the help she could get.

  7. B. McLeod

    The value of her “reasoning” is foreshadowed by her early expression of her desire to whack in the head anyone who uses concepts in a context she disagrees with. Nowhere does she ever show how logic or sense supports her “believe the woman” postulate. Even if there were no presumption of innocence in any context, that would not bridge the gap to “believe the woman.” Likewise, she utterly fails to explain why or how this is different from a general “believe the accuser” premise for all accusations of all types. So her screed comes down to, “I have had legal training, but I am an idiot.”

  8. Jake

    “They say truth is the first casualty of war. Law is gaining quickly.”

    Mmm. So visceral. So frothy and emotional. You really should move to Hollywood. By the way, who are they? Sun Tsu? Aeschylus? Alfred E. Neuman? Ruddy Kipling?

    1. SHG Post author

      That would be Hiram Johnson (1866-1945), and he was frothy indeed, which is why the saying became ubiquitous in your grandparents’ day. Not sure if he’s as visceral as all that, but he sent emotional chills down my spine. But then, you know how I cry at truth.

  9. Weebs

    You know who else “believed the plaintiff?” The dudes who strung up Emmett Till.

    She should ask Till what he thinks about it … oh wait, she can’t.

      1. Weebs

        My heartfelt apologies …

        Perhaps we could substitute the Rolling Stone UVA story or the Duke lacrosse case.

        1. SHG Post author

          Either would have been preferable, but bear in mind, most people here are already well aware of all of these stories and aren’t in need of the obvious being noted.

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