The Juice of Innocence

Orenthal James Simpson decided to join the world of Twitter and, despite amassing more than 600,000 followers, received pretty much the unsupportive reception one would expect. While some remain his fans, the vast majority of people despise him as the murderer of Nicole Brown and Ron Goldman.

He was, of course, acquitted of the murders. He was found liable in a subsequent civil trial for damages, and was later convicted of robbery in Nevada, for which he was sentenced to 33 years  imprisonment with parole eligibility after nine. He was released in 2017. But it’s not the robbery that inflames people against OJ; it’s the murders. The murders for which he was acquitted.

I could hear the dulcet whisper of my muse, Appellate Squawk, as I read comments about the loathsome and murderous OJ: But he was acquitted. He has never been found guilty of the murder of anyone, and yet here are people, lawyers, criminal defense lawyers, condemning him as a murderer. See the problem?

Indeed, I could. Like any relatively normal American, there was little doubt in my mind that OJ Simpson was involved in the murders of Nicole Brown and Ron Goldman. Yet, I try to be principled in my views, and few principles matter more than the presumption of innocence. And yet, here I was, and there were so many others, mindlessly abandoning the principle when it came to OJ. No doubt he isn’t the only acquitted defendant for whom broad societal condemnation ignored the presumption, but he was an excellent example to raise the problem, the inherent difficulty in holding tight to principle despite the belief, for many a certainty, that he is a killer.

So, fool that I am, I posed the conundrum on the twitters.

A test of principle. If the presumption of innocence remains intact for a defendant who’s acquitted, does it not hold for OJ?

It’s not whether you believe he’s guilty, or you’re convinced by the civil trial, but whether there is one rule for everyone, except OJ.

Most replies avoided the question, whether because confronting it was inconvenient or my interlocutors were unable to see a problem beyond their desire to rationalize their quasi-support for the “court rule” while enjoying their “right” to reject it personally. If you care to see who said what, you can read through the replies at your leisure. My purpose here isn’t to call anyone out.

A few remarkable things came of the exercise. First, many, and particularly lawyers, rejected the notion that the presumption of innocence is a principle at all, no less a foundational tenet of our jurisprudence. A typical response was that it was a legal technicality, a rule that courts had to apply, but not a principle that constrained any individual’s beliefs.* As one twitterer, whose bio ironically states that he “fights fascists,” responded:

People aren’t the state, Scott. We don’t have to presume a God damn thing.

And lest anyone think this is merely the vehemence of the insipid, some actively argued that the presumption of innocence was forced upon us by the the invisible hand of law in the sky, against our will and in conflict with our right to ethically believe whatever we want to believe.

The presumption of innocence, as you well know, is a device employed in the criminal law. It is not an ethical imperative that precludes any of us from reaching our own conclusions regarding who committed the double murder. I’ve reached mine.

It may be that this person was an eyewitness to the murders, and reached his conclusion from  his own observations. But that’s not likely. And yet, despite acquittal,** is it correct to opine that there is no ethical imperative to prevent us, whether it be from watching every moment of trial or some lesser basis, from reaching “our own” conclusions?

Our society is grounded in certain legal principles. One is that the mechanism by which a person is found guilty is the legal system, whether by plea or verdict of guilty. Another is that until a person is found guilty, he is presumed innocent. As juries are instructed, that presumption remains intact until a guilty verdict, and if the verdict is not guilty, then the defendant enjoys the presumption of innocence thereafter. No, it’s not proof of innocence, but then, proof of a negative, that he didn’t do it, is rarely possible. This is one of the reasons for the principle, that placing the burden on the accused to prove innocence is untenable.

While this principle is embodied in our rules, it didn’t get there by accident. We embrace it because we believe in the principle. Do we still? Is it a principle when applied to someone we favor, but a mere legal technicality to be suffered when applied to someone we despise?

Most curious is how many people, even zealous advocates for the rights of the accused, are both certain and comfortable in their opinion that OJ did it. The question isn’t whether people have the “right” to believe OJ is guilty, or the right to reject the presumption of innocence when it comes to their personal conclusions. There is no rule of law prohibiting people from believing anything they want to believe, from space aliens to OJ’s guilt. This is America, and we’re entitled to our beliefs no matter how right or wrong.

But that wasn’t the question.

That so many fail to recognize the presumption of innocence as a principle, rather than a legal technicality that constrains the state but not them, is unsurprising. We want to believe whatever we believe, and we’ll say whatever we can get away with to rationalize why our desired outcome doesn’t make us hypocrites. If enough people agree, then it can’t be an ethical imperative and our circumventing principle has the popular seal of approval. We’re right, no matter how dubious our path to get there.

I don’t condemn anyone for believing that OJ is guilty, even though he was acquitted. I suffer from the same sin. Perhaps the only difference is that, upon reflection, I recognize that my belief about Orenthal James Simpson is a failure of principle on my part. And yet, no one who responded offered a rationale that allows me to deny it. I was tested and fell short. Appellate Squawk would be disappointed in me.

*The takeaway for criminal defense lawyers summing up is that while your jurors may accept in their minds that the presumption of innocence must be applied, they may believe in their hearts that the defendant is very much guilty. They may accept the rule, but they don’t believe it.

**A curious aside is that some characterized the acquittal as jury nullification, others as a condemnation of systemic racism by the LAPD, and others as prosecutorial incompetence. Does it matter? If the verdict is “not guilty,” do we get to second-guess why?

67 thoughts on “The Juice of Innocence

  1. Holden114

    The State, having failed to secure a conviction against OJ, should treat him as an innocent man. In fact I was bothered that his second trial might be treated as a do-over and that a unjustly harsh sentence would be imposed (for the crime he was charged with) as a way of making up for the previous failure and everyone would be happy with that.

    Everyone who saw the trial is able to review the evidence, reach a different conclusion than the jury did, and adjust our opinion of OJ accordingly. He deserves presumption of innocence in all state related matters but outside of that, the evidence that’s been made public convinces us he is guilty. This is not an inconsistency, it’s different standards applied in different spheres of life (court conviction vs. personal satisfaction evidence shows he’s guilty).

    I’m sure you, Scott, have blackballed people who’ve done you wrong, or you’ve heard enough from people you trust to know they’re not to be trusted without relying on a court conviction.

    1. SHG Post author

      If a principle is inherently valid, is it magically rendered invalid because we’re able to create a rhetorical “different sphere”? Why is this court v. personal dichotomy intellectually valid, other than it allows us to believe whatever we want to believe?

      1. L David Gehrig

        We have granted the State the power and privilege of denying property, liberty, and life to all in its jurisdiction. Men do not have the ability to refuse dealing with the State as they may do with each other.

        It may be turtles all the way down, but I’m comfortable stopping at the elephants.

        1. SHG Post author

          So it’s a mere legal technicality, necessary before the imposition of state-sanctioned punishment, and not a principle?

          1. ppnl

            No, it is an important principle. An absolutely vital principle. But it is only binding on the state.

            It is just like the principle of free speech. The government cannot make me shut up. You can delete my comment here at will. It is a negative liberty created by denying a power to the government. The government’s right to drag me off and throw me in a hole is severely limited in the same way.

            Would you hire a babysitter that got off a child molestation charge because of a failure to Mirandize? Your rights and responsibilities are very different from those of government. That is also an important principle.

            But having said that, crowds with torches and pitchforks are almost always a bad idea. And the internet has made them so easy.

      2. Holden114

        The principle is that I will presume innocence until convincing evidence of guilt is produced. The state uses the court process to test that and make a final determination as far as the state is concerned. But we are not obligated to surrender our personal judgement of the weight of the evidence to the trial’s outcome, or maybe even evidence that never made it to the trial. Suppose video recording is found of OJ committing the crime, or he confesses to it in a late-night tweet binge. Are we still supposed to regard him as innocent until formally convicted? We all know that trials (for good reasons) have limitations, and judges & juries are human beings who can be wrong. I don’t think you can ask people to abandon their judgement to a trial’s conclusion.

        Yes, this can lead to social problems with innocent people socially branded as guilty or viceversa, or believing what we want to believe. See the continuing debate over Ford’s accusations of Kavanaugh and how that’s enough for many to be convinced he’s guilty absent a conviction. That’s one of the costs (perks?) of living in a free society where we can disagree with the state’s verdict. The people around Harvey Weinstein shouldn’t have waited for a guilty verdict to ostracize him once the mounting accusations and evidence of his culpability were made public.

      3. wilbur

        A better question may be: Is the principle indeed inherently valid, in the sense of innately or intrinsicly valid?

        The mere fact that so many people claim the principle is limited to that one sphere seems to indicate it is not. We have adopted it as a cornerstone of our criminal law, but the fact that it must be hammered home to juries is evidence that it runs counter to how people generally think about things.

        BTW, I’ve got some good stories about encountering OJ on South Florida golf courses. I’m sure you’re itching to hear them, aren’t you?

  2. andrews

    Perhaps some of the concern about the presumption is reflected in the different standards for civil and criminal cases. To prevail in a criminal case, the state has to prove “beyond a reasonable doubt”, where in a civil case I need to prove “50% + a feather”.

    If you are of the view that the state crossed the 50% threshhold, then, you may be justified in believing Mr. Simpson committed the crime subject of your reflections. This is so even if you can also believe that the state did not meet their burden of proof.

    I am not sure whether he actually did the crime. No need to allocate many brain cycles to the question, it does not affect me. I will say that where the state feels that it must rely on evidence planted by state actors, I have doubts as to whether the state can meet its burden. In that case, one of the cops bragged in a way that could be interpreted as boasting of planting evidence. That can hurt your case if the cop does not wait until after the verdict.

    1. SHG Post author

      Did everybody believe OJ innocent until after the civil verdict, whereupon satisfaction of the preponderance standard changed everyone’s mind?

  3. Guitardave

    Read some of the twits..fascinating how many ways they kept missing the question.
    It seems that the concept of ‘having principals’ is what escapes them.
    When it comes making judgments all you need is your feelz and…

    1. SHG Post author

      A lot of effort went into ignoring the question. That’s why I asked the question (and still does here, as the comments reveal), because it was a particularly hard question.

    2. Kirk A Taylor

      To answer the question…

      No, there is no ethical imperative to accept the conclusion of a court as the final word as to innocence except with regard to state action. In my mind, to do so would violate the principle of intellectual rigor, as well as many others.

      Last night someone asked me how someone can plead innocent when there is clear video evidence of the action. My first point was that there is video evidence of the person touching the breast, but that doesn’t mean the person committed the crime of sexual assault. (Sorry for my poor non lawyer explanation).

      I think it is safe to say that very few people believe the presumption of innocence to be a bedrock life principle or, at the very least, that the presumption can only be overcome through court. I may presume that it wasn’t my neighbors dog who shit on my lawn, but if I see the dog do it, i dont need a court to confirm it.

      On top of this, I dont trust the government to determine the length of my dick with any accuracy. Innocence or guilt is far beyond their capability.

  4. Clark Neily

    This seems uncharacteristically obtuse. Yes, there is a presumption of innocence in criminal prosecutions. Yes, the state must, in order to obtain a criminal conviction, either obtain a confession or prove a defendant’s guilt beyond a reasonable doubt to the satisfaction of a particular set of jurors, which California failed to do. But I can still call OJ Simpson a murderer without fear of being held liable for defamation because he is in fact a murderer. And—bonus round—I can express my disdain for anyone who chooses to socialize with OJ on the basis of my belief that he murdered two people and got away with it. Both your initial post and your responses to comments thus far suggest we are morally obliged to treat OJ as innocent of murder simply because he managed to bamboozle 12 rubes from LA County 25 years ago. If that’s not your position then it’s not clear to me what the point of this post is.

    1. SHG Post author

      I never suggest anyone is “morally obliged” to do anything. Of course you can do all of those things, but that has no bearing on whether it’s principled or you just get to do whatever you want to do.

      As for this post being uncharacteristically obtuse, I defer to others to decide.

    2. Miles

      You’re absolutely right that this post is obtuse, because otherwise it could force well-intended people to confront an extremely difficulty problem of reconciling their principles with their conflicting beliefs, and that would make them sad.

  5. Xon

    In order to maintain bona fide devotion to the legal principle, are we required to believe (or must self-flagellate for our falling short) that Messrs. Bryant and Milam did not murder Emmett Till?

    1. SHG Post author

      That’s an excellent question. It may be that we can draw an objective distinction when the prosecution deliberately fails that rationally distinguishes it from a legitimate prosecution.

      1. B. McLeod

        It seemed to me that the prosecutor made a legitimate effort to convict Bryant and Milam, but was simply faced with trial conditions in which no prosecutor ever born could hope to bring the case to such a conclusion. The local sheriff engaged in openly racist banter in the courtroom, daily, and the court took no action to address it. Defense counsel’s closing argument to the all white jury was essentially that they should free the defendants based on race, and there is every indication that they did just that. It wasn’t that the state’s attorney didn’t put on the evidence, the jury simply ignored it. It had to have been very difficult for the prosecutor to take the case to trial, especially knowing what would probably happen, but he stood by the duties of his office, and ought to be credited for that.

      2. David

        How is it a failure of principle to recognize that the presumption of innocence is a legal principle, and the legal system is imperfect? What’s wrong with acknowledging that a verdict, even with a proper prosecution and defence and judge and jury does not always accord with reality?

        Shouldn’t one remain open to the possibility that someone convicted is factually innocent, that someone found not guilty did do the deed, and that someone who is pardoned does not instantly lack moral culpability? Likewise if charges are dropped in some case because of a violation of constitutional rights, one may agree with the outcome, and not want the state to punish the individual, while still believing they did it (due to the excluded evidence).

        1. SHG Post author

          Reality? There’s a conceptual ledge of reality when one is a witness to a fact, but when the best we can do is hear it second hand at a trial, are we so arrogant as to believe that we know reality?

  6. B. McLeod

    By happenstance, I was at a conference packed with prosecutors the day that verdict came out. There was a widespread sentiment of disbelief. Myself, I had been expecting that verdict. From the omnipresent trial coverage on television, it was clear that the prosecutor (and the police before her) had cocked up the case, and the only way the state was going to land a conviction was if the jury disregarded the standard of proof instruction (they did not).

    Later that day, a kid making conversation on the elevator asked me if I thought OJ was guilty. Like all the people on social media, he didn’t understand what a verdict means, and that the case was over. (Later on, of course, there was the civil case in which OJ was found liable, and for almost everyone who is not a lawyer, that muddied the water irreparably).

    It seemed to me that both the criminal and civil juries did a good job and reached correct conclusions on the evidence before them. There was enough evidence to establish civil liability, but in the criminal trial, there was the glove that did not fit, and there was Mark Fuhrman. (Obscenely, the moronic gods of broadcast media have since picked Fuhrman up as a roving “expert” on forensics and police procedure). There was plenty of doubt, which the state (rather than OJ’s famous defense team) did a good job of proving. The case was such a rolling disaster and so poorly handled on both sides that it could be the subject of an upper-level law school course on how not to try a case.

    1. SHG Post author

      Yet curiously, for many who saw “plenty of doubt” to justify an acquittal at trial, it’s not enough doubt to prevent them from being absolutely certain he’s guilty. There’s a lot that going around.

      1. Pedantic Grammar Police

        Yes, he is innocent as a matter of law. But that doesn’t prevent anyone from thinking that he is guilty as a matter of fact. The legal finding of innocence in a case where the suspect is factually guilty can be a reflection of prosecutor/police misconduct or incompetence. Only by conflating the different meanings of “principle” can we conclude that it is intellectually dishonest to simultaneously accept the innocent verdict and think that he killed them.

        Is it unprincipled for a lawyer or a judge to tweet that he is guilty? That’s a hard question. It’s not hard for the rest of us.

        1. SHG Post author

          One toke over the line, sweet Jesus. If you don’t adhere to the principle of the presumption of innocence in the first place, there’s no reason you, as a non-lawyer, would be expected to adhere to it otherwise. It’s only a question of principle if you embrace it as valid foundational tenet of our jurisprudence. If on the other hand, you reject the concept, neither presume guilt nor innocence, then there is nothing hypocritical about believing anything you want to believe.

          1. Pedantic Grammar Police

            Why can’t I embrace it as a valid foundational tenet of our jurisprudence and at the same time decline to embrace it as a personal principle? I accept it under the “fundamental proposition” definition, I reject it under the other two.

            How many angels can dance on the head of a pin?

  7. Pedantic Grammar Police

    The problem is with the definition of principle. One definition is “a fundamental truth or proposition that serves as the foundation for a system of belief or behaviour or for a chain of reasoning.”

    By this definition I can recognize the presumption of innocence as a principle of the US justice system and I can see it binding lawyers, judges and juries. If I was on a jury, I would be bound by it. It’s not a fundamental truth, but it is a fundamental proposition underlying our justice system. To participate in that system as a judge, lawyer or jury member, we agree to follow that principle.

    Another definition is “a rule or belief governing one’s behaviour.”

    Another is “morally correct behaviour and attitudes.”

    The presumption of innocence does not match the latter 2 definitions. It just isn’t up there with things like “don’t kill,” “don’t steal,” and “don’t falsely accuse.” Even if I was a lawyer or a judge, or sitting on a jury, I don’t think I would necessarily accept this as a personal principle. I would accept it as a fundamental proposition of the system in which I was operating, and which I had agreed to allow to govern my behavior within the system, but that doesn’t mean that I would have to go home believing in my heart that OJ is innocent.

    1. SHG Post author

      When the principle at issue is jurisprudential, it’s best to use the relevant jurisprudential definition.

      1. Pedantic Grammar Police

        That’s my point. The people replying to you are not understanding which definition you used and they are using one of the other ones. They are answering a different question from what you are asking.

        You are expecting too much from the twittersphere. How is some random joe blow eating cheese puffs in his underwear supposed to know which definition of “principle” you’re using? And here you are wondering why they trampled your pearls into the mud.

        1. SHG Post author

          Were they pearls? I didn’t know, and thus far, still don’t. You may be right, that I expect too much. But then, it’s not easy to be so obtuse as to confuse the very smart Clark Neily.

  8. Richard Kopf

    SHG,

    Perhaps an answer and an antidote to your alleged failing is found in Blackstone’s ratio. That is, it is better that ten guilty persons escape than that one innocent suffer.

    Blackstone presupposes that we know many guilty persons–in every sense of that word “guilt”–will go free if the law is properly calibrated. So long as you are also truly an adherent to Blackstone mathematics your post does not fairly describe an unprincipled person. In other words, there is fundamental connection between the two concepts–presumption of innocence and Blackstone’s ratio–that should, and in fact does, save you from being unprincipled merely because you think Juice did the deed.

    I truly hope this glove fits. All the best,

    RGK

    1. SHG Post author

      As Ray Donovan asked, where does he go to get his reputation back? If an acquittal after trial isn’t good enough, what is? Where does an accused go, after acquittal, to prove the negative to the satisfaction of the masses?

      1. Richard Kopf

        SHG,

        For it is my fault and not yours (libertarians notwithstanding), I apologize for not seeing the essential thrust of your post.

        All the best.

        RGK

      2. David

        When someone who is acquitted puts out a book “If I Did It”, describing how, if they did it, they committed the crime, can they later fairly complain that people think they did it and their reputation hasn’t recovered?
        Also, there are other things (evidence of spousal abuse, and civil verdict and later robbery conviction as you note) that affect his reputation.

          1. David

            I wasn’t intending to offer a post-hoc rationalization for attitudes towards him in the past, but a present-day rationalization for attitudes towards him today. That is, before the book and his civil trial his reputation was better despite the criminal trial; after the book and the civil trial it was worse.

      3. Shannon

        I thought about this as well.

        As far as public figures are concerned, they have two trials. One in the legal system and the other in the court of public opinion.

        Preferably, they should be able to clear their names after one adjudication. For regular Joes, where their case gets little to no much media attention, that could happen.

        OJ was acquitted in the legal system – for better or for worse – and the state should treat him no differently than an innocent man, at least until his subsequent robbery conviction. But to be cleared in the court of public opinion, he’s going to need to hire a PR team, not lawyers. For me, the fact that there is no pro-OJ documentary on what happened after 25 years is telling.

        Maybe he should start work on a Netflix special.

        1. SHG Post author

          The joke years ago was that there are no rules of evidence in the Court of Public Opinion, and there’s no appeal. It’s no longer a joke.

      4. Jake

        “where does he go to get his reputation back?”

        I heard about these amazing businesses called PR firms. Apparently, they specialize in this sort of thing.

  9. Fubar

    And lest anyone think this is merely the vehemence of the insipid, some actively argued that the presumption of innocence was forced upon us by the the invisible hand of law in the sky, against our will and in conflict with our right to ethically believe whatever we want to believe.

    The quite visible hand of the law
    Demands only respect, not our awe.
    Even though we acquit,
    When its glove doesn’t fit,
    Then the conflict will stick in our craw!

  10. AE

    I too have failed this test. And anything I could say in my defense seems like weaseling, even to me.
    The best argument I have is to claim that I know this guy is guilty, guilty, guilty, but that I’d try to uphold the presumption if I was on a jury.
    Of course I’d do that wonderfully. My mommy says I’m special.

    I fail. It’s a hard idea to grasp.

  11. David

    At the founding, our forefathers risked death and ruin for these principles. Since then, we’ve taken them for granted and assumed an entitlement to accept them when they serve our cause and reject them with a shallow quip when they don’t.

    We’ve watched lives and careers ruined by MeToo accusations as surely as they would be after criminal convictions, but based on nothing more than unproven accusations. Like you, it feels to me as if there has to be some sound distinction between the presumption of innocence and our right to believe in guilt despite the lack of conviction. It just feels that way. And yet, like you, I can’t come up with a good reason why that should be.

    1. SHG Post author

      Harvey Weinstein is guilty. Everybody says so. Sure, he gets a trial. Sure, the jury will reach a verdict. But whatever that verdict is, he will still be guilty, because everybody says so.

      1. szr

        Your comment reveals an important related point—abandoning the presumption of innocence in cases were “everyone knows he did it” has cascading consequences. First, people declared that Weinstein was guilty; next, people declared Ron Sullivan was unfit to be a dean at Harvard because he represented Weinstein; then, people declared Sullivan’s wife Stephanie Robinson was also unfit to be dean because of the pretextual reasons used to punish Sullivan.

        If you take these cascading consequences seriously, then it becomes hard to deny that the presumption of innocence is both a foundational principle and an ethical imperative.

        1. SHG Post author

          It was my hope that someone would provide a principled distinction to this dilemma. The responses have been enormously disappointing, to say the least.

          1. Holden114

            There’s no dilemma. A trial is the mechanism by which we determine whether THE STATE should treat OJ as guilty of a crime. It is not the only process by which we arrive at the conclusion that someone is guilty or innocent. You can argue how imperfect those methods are, but the trial is imperfect too. And there is no reason to subordinate our judgement to the judgement of the jury that happened to be selected if we’ve all seen the same evidence.

            1. Skink

              This here Hotel is occupied by lawyers and judges. We grapple with hard questions. If you read the post, you’d know this one of them hard questions. If you didn’t catch that from the post, it should have been obvious from the comments before you chimed in with repeated dopiness.

              We know you’re not a lawyer. We knew it when you spelled “judgment” in a manner no lawyer would. That made me stop reading what you had to say. Why would I care what you have to say on an issue specific to lawyers?

              Somewhere in the Hotel manager’s office is a hat. I’ll try to get you one. Wear it proudly.

              SHG–you coupled an issue with a case that was sure to engender this. You might as well use the biblical Eve as the example. Sadly, I don’t have an answer for your conundrum. I’m a lawyer, so I think lawyer. My wife says I’m always a lawyer. Since she don’t like me, it’s hard to interpret the meaning.

  12. Anthony Kehoe

    I remember all the news coverage of this trial while I was growing up in Ireland (yes, it even made it over there). In today’s day and age, it is perfectly legitimate to some to assign guilt regardless of evidence. The facts in this case are simple. 12 people of LA county were presented with the evidence of this man’s guilt and they decided he wasn’t. Isn’t it really that simple? It’s the same reason “no Bills of Attainder” is in the main constitution and we have the 6th Amendment. For comparison, look to Blackstone’s country to see what happens when the feelz of the people undermine centuries of presumption of innocence. Different arrest warning, weakening of double jeopardy, requirement to present a defence at both questioning and trial.

  13. David

    I wasn’t claiming to know everything about reality with certainty; I’m arguing that one should be open-minded enough to consider that any court’s verdict, or eyewitness testimony no matter how honest, or one’s own memories or beliefs, or perception about someone, might be flawed.

  14. Jesse

    I think as a matter of integrity, absent any knowledge or investigation whatsoever, an individual should apply the principle personally. However, once an effort is made to educate one’s self about it, it does not remain unethical to lean one way or another about it. Even a jury member might be somewhat convinced through a trial that a defendant is guilty, but still posses enough doubt to require them to acquit. Stated another way, no, the principle is not something that ethically needs to apply to personal belief in perpetuity given a trial outcome but absolutely needs to apply procedurally.

    With regard to OJ, I think it’s fair for someone that has looked into it to think he likely did it, but then I wasn’t there, it isn’t on video, and I personally would never go on record saying he absolutely did it.

    I don’t think individuals are ethically required to accept a court trial outcome as the final word on guilt or innocence. I would perhaps modify the principle to say that an individual should recognize that unless they were a direct witness with perfect knowledge, there is room for personal doubt and it’s reckless to believe they possess the final truth.

  15. Pedantic Grammar Police

    After realizing that I didn’t understand what you were getting at, I read the entire Twitter thread, and I read your post a few more times, and all of the comments and responses, and I think I get it now. I think you are saying that the presumption of innocence fits all 3 definitions of a principle; that it is not only a fundamental proposition underlying our justice system, it is also a rule or belief that governs ones behavior and a morally correct attitude. Based on this, you are saying that you have failed your principles because you believe in your heart that OJ is guilty. If a jury decides that someone is not guilty of a criminal charge, then we must believe in our hearts that he is innocent, not only in the eyes of the law, but in fact; innocent of the accused conduct underlying the charge, or else we are unprincipled.

    That’s nonsense.

  16. Bryan Burroughs

    If we follow your proposition, is our legal system also not unprincipled? Would it not defy the presumption of innocence (and the verdict of the criminal trial) to allow a civil trial to proceed after an acquittal? For that matter, if the accused is presumed innocent, doesn’t a criminal trial violate that principle? He’s assumed innocent, leave him alone, right?

    It seems that you are taking the principle and using it to define the end of the decision-making process, instead of applying it at the start of any such process. Rather, such processes should start from that presumption, and then decide what level of evidence is required to overcome it. Civil and criminal trials suggest that it is perfectly reasonable to have different processes for determining guilt or innocence, each with their own rubrics governing how to arrive at the end result. These rubrics reflect different weighting of principles, which allows for different results based on the same input of facts. As a civil trial involves a dispute between two people (or sets o people), each with their own conflicting sets of rights, it seems natural that the weighting of principles in the rubric for that trial would be different than a criminal trial, which involves the State going up against an individual person.

    Viewed this way, it’s not that we should “ignore” the principle in different venues. Rather, it’s that different processes have different rubrics, with different deference to various principles, but all of which should include significant respect for the presumption of innocence. You have adeptly argued why “victim’s rights” shouldn’t be considered in arriving at the verdict of a criminal trial, yet surely they should be considered when that putative victim sues in civil court. The rubric is different.

    If I may be allowed to murder a few more words, if we accept that there can be a civil and a criminal process, it stands to reason that I can define my own process for “Bryan’s personal opinion of OJ Simpson’s guilt.” As long as the rubric I use gives proper weight to the presumption of innocence, I’m adhering to the principle. I can even use the trial verdict as evidence in my decision-making process, but it doesn’t have to dictate the end result. It should rightly be an obstacle to arriving at a different conclusion. And, as OJ Simpson isn’t particularly affected over my random-assed opinion of him, the rigor of my process or rubric isn’t as important as those of other process which do meaningfully affect him. And, the closer my decisions gets to affecting him, the more weight I give to his rights and concerns. From a libertarian perspective, that seems quite principled.

    1. SHG Post author

      No. Guilt is only decided at a criminal trial. Civil liability is not guilt. All those murdered words for absolutely nothing.

    2. Bryan Burroughs

      Such an extreme level of pedantry renders the originally posed question absurd. As I am not a criminal trial or court, nor a juror in the one in question, I can’t possibly determine or even consider someone “guilty” or “innocent,” much less provide the presumption of either. I can’t abide by the principle because it is not mine to consider. Likewise, as murder is purely a legal determination, I can no more “believe” him a murderer than I can “believe” 2+2=4, CAPTCHA be damned. He is what the court says he is; the presumption is meaningless.

      If this is the course you choose to take, what is the actual question?

      1. SHG Post author

        Sometimes I marvel at what contortions go on in people’s heads. Other times, I’m just glad I’m not them.

  17. Ben

    Presumption of innocence: What is it?

    A presumption is a proposition accepted as fact for a limited purpose.

    Aeschylus tells us that the purpose is to protect the accused from retribution, punishment and revenge, and from the furies of both the mob and individuals, until he has had the chance to defend himself before a neutral tribunal.

    As a legal rule it applies only to the state. But if it’s not just the law, but also a good idea, the principle applies to us too.

    It requires us to refrain from punitive actions and private revenge, and to restrain our fury. So nothing intended to “serve them right” or “give them what they deserve” nor to make them feel the disapproval of society, or to serve as a warning to them, or to others. No twitter mobs. No deplatforming. No shunning, boycotting, banning, withdrawing offers made, or throwing out of golf clubs.

    If you still think he is guilty in fact, you’ve no obligation to become or remain his friend. Treating him with the courtesy due a stranger is enough.

  18. CHenry

    If anyone could be said to have “won” acquittal, it would have to be O.J. “And if it do rhyme, you do no time”(the LAC ADA after the famous “if it does not fit, you must acquit” examination.) Yeah.

    Why is there confusion here? O.J. apparently lives a version of reality where the findings of his civil trial never took place, where acquittal and avoiding punishment is an entitlement to be seen by the world as not responsible at all. You’d have to wonder what would make him think anyone has any interest in him at this point, but his prison mailbox was probably always full.

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