The presumption of innocence, errant

14 November 2009 by Mike Gogulski
Posted in crime | 25 Comments »

It is one of the greatest aspects of legal systems derived from the English common law that a defendant should be presumed innocent until proven guilty. The presumption of innocence is a massive check on state power, especially when combined with a jury system in which freely-acting members of a community may discover the facts and judge both the law and the circumstances for themselves.

In our current situation, would that this basic protection of man against state even be applied consistently and forcefully.

Even so, I hold that the presumption is fundamentally lacking so long as it is not attached to another, very important consideration. And so, I rephrase:

Let no person be held guilty until proven innocent, except insofar as when that person is a privileged actor of state (or other similarly socially privileged group), they shall not enjoy such presumption.

The Last Jew in Vinnitsa

The Last Jew in Vinnitsa

Photo via Distributed Republic.

I hold that none of the uniformed men in this photo should have ever enjoyed a presumption of innocence.

I might not gun them all down myself. I might not assist in doing so. But I decidedly would oppose anyone who aimed to get in the way of that happening.

  1. 25 Responses to “The presumption of innocence, errant”

  2. By Anthony Martin on 14 November 2009

    I guess I’m a little uncomfortable. Typically, I am uncomfortable because I disagree but I have come to realize it might be cognitive dissonance on my part.

    When this was discussed before, it was a public figure who needed no trial because his guilt was widely known as fact. Now we’re talking about anyone pictured here in uniform. Have you dropped the required criteria just a bit or no?

    I guess I just don’t know what to think, but I wanted to voice my discomfort at the very least.

  3. By Mike Gogulski on 14 November 2009

    Then let my disquiet echo your own, Anthony.

  4. By David Z on 14 November 2009

    Anthony, didn’t all those present in that picture have some power to prevent a f*cking mass murder? If not individually, then certainly they could’ve prevented it, collectively. Instead, they all turned a blind eye & took their paychecks, went home and bought Christmas presents for their children, ate home-cooked meals, and generally enjoyed the rest of a normal human life.

    I have zero sympathy for anyone willing to abide that sort of atrocity. I might not pull the trigger on the rotten lot of them myself, but then again, I might. Let’s just say I wouldn’t put it past me.

  5. By Mike Gogulski on 14 November 2009

    David’s got it.

    I don’t want to become a killer. Doesn’t matter the right or the wrong, I don’t want it.

    I look here, though, and I see a place where I would, if I had the chance. Not because I want to be a killer, but… ach.

  6. By David Z on 14 November 2009

    Even in that situation pictured, I might, as futile as it seems…

  7. By George Donnelly on 14 November 2009

    Mike, everyone deserves the legal presumption of innocence when entering court proceedings. Without it, good people have to prove they’re innocent. Kind of like proving a negative.

    Of course the jury might not give these brutes much slack, but that’s their business.

    Although long, this documentary illuminates the brainwashing that was used on the average brute. Perhaps not too unlike the brainwashing on the brutes round here, the kind that drone on about things being “the law”.

  8. By Mike Gogulski on 14 November 2009

    @George: Agreed, but note what I didn’t say in my rephrasing. It doesn’t concern state court proceedings at all, though I do suggest we’d be better off if such were extended into the courts as well. The bigger problem I see is that the “presumption of innocence”, coupled to state privilege, makes it almost impossible to ever retaliate against state agents for their crimes.

    Outside the state courts, if an observer saw a gang of people beating a defenseless someone lying on the ground, they might try to intervene to save that someone. The aggressors are commonly perceived to be guilty of violating that other person. Put uniforms on that gang and call them “police” or “soldiers”, however, and most observers are going to presume they’re doing the right thing, at least in the modern western states. The good Samaritans in such situations are almost never to be found.

  9. By Anthony Martin on 14 November 2009

    Do you have any use for the moral high-ground?

    If not, bye bye, boys! Have fun storming the castle!

  10. By Mike Gogulski on 14 November 2009

    Where’s the high ground here, Anthony?

  11. By Anthony Martin on 14 November 2009

    Is that a serious question or are you suggesting that there is no moral high-ground here?

  12. By Mike Gogulski on 14 November 2009

    Serious question.

  13. By Anthony Martin on 14 November 2009

    Ok, I suppose the moral high-ground is the presumption of innocence here. I didn’t really think about until just now that they might be one in the same.

    So let me ask this. Were Gandhi and MLK just wrong, then?

  14. By Mike Gogulski on 14 November 2009

    What I’m suggesting — without being entirely convinced of it myself — is twofold: that a presumption of innocence toward state actors is foolish at best, and that given the war depicted in the photo above has not ended, we might seek higher ground less in moral discourse, than in the world of action.

    But I lack the referents to reply, here. Where Gandhi and MLK wrong? When they did or said what? I leap, now to extrapolations.

    Both men advocated for, embodied, and led peaceful actions toward change for the better in their societies. Their methods were, for the large part, exemplary, in that they served to activate the conscience of the society around them to make the oppression of those they advocated for cease to be possible in that public conscience. As modelers of social transformation — of revolution — I would prefer Gandhi and MLK over many, many others.

    That said, where are they today? Where are the circumstances which make the emergence of such leaders possible? I don’t see them — but maybe this is a fault of my own vision, rather than of what’s on the field.

    And so I fall back upon a different form on consciousness-raising, perhaps.

  15. By Anthony Martin on 15 November 2009

    I could be wrong, I could be jumping to conclusions, but I believe your goal here is to prepare your readers to accept the option of assassination politics. And you should certainly be free to advocate that.

    AP has absolutely no use for the presumption of innocence.

    But I believe all AP will lead to is more crack-downs. Well before AP will have any positive influence, the political class will make owning a camera illegal and such.

    Then, I believe AP will basically ensure that only the most psychotic dangerous people will seek office.

    I could certainly be wrong. You want to try it, I will not stop you. But I will not participate in AP on any level except discourse and discourse protection.

  16. By Mike Gogulski on 15 November 2009

    Anthony, you are really too clever by far.

    If your intended inclination toward AP is what you state, then I know you are an ally. Hell, I knew that already.

    No mistakes, though. I have been readying my own defense/support/advocacy post for AP for some time. Maybe I should just snag the essay and a couple of reaction pieces and post them now, for future comment. Ah, yes… they’re already in the buffers.

    We live in a damned ugly world. AP, anarcho-capitalism, or a change in common perception toward the common presumption of innocence isn’t going to change that… at least, not very soon.

    What I *do* want is a dialogue which takes people from theory to action — from the moral high ground to the messy world of real things among people. Gandhi and MLK were both theorists and actors. And I believe we should be the same — even when we have trouble with our own theories.

    (very cryptic mood, excuse me)

  17. By George Donnelly on 15 November 2009

    I didn’t mention *state* courts either. And the presumption of innocence only has meaning in a legal context. Who talks about it with any significance outside that context?

    You’re right, state justice is rigged. See my recent post on “The Take” (2004) where I argued this point and asserted that workers who occupy their factories against the wishes of the “owners” and judicial system are doing the right thing.

    We can start our own free market justice system anytime. Bad guys can be tried in absentia. AP could simply be the death penalty for bad guys tried and found guilty.

  18. By John Galt on 15 November 2009

    Tried, how, though, George. It makes a difference. In absentia by design, or would you serve notice in some fashion? (Use the state’s certified mail, heavy irony.) And with what rules for the defense? Can they have counsel? Present a case? Confront witnesses against them? Compel favorable witnesses to come forward? No? Then why have a trial?

    In the picture, it is war. In the war, many resistance fighters killed many Nazis. At check points. By luring them to restaurants. By guns, by poison, by whatever. In war, there is a presumption of guilt – you wear the uniform of the enemy you can get gunned down without warning. Even if you wear it as a spy and someone shoots before asking for the pass word. And I say the resistance fighters were right, and that there was no need for a trial.

    The men in the Warsaw ghetto who took a single gun, went out, found a Nazi soldier, killed him quietly, and brought back his gun and ammo (and food, and other salvage) didn’t have to wonder whether this particular Nazi had killed a Jew, or a dozen. None of them were off limits, all were fair game.

    Now, if it is war, fine. AP would be then just a method of hiring fighters and compensating them. Don’t bother with trials, you don’t have time, and you don’t have to explain. They’ve been killing us for many years. Carl Drega, the Waco killers, the students at Kent State, many others to name.

    But if it is war, more effective tools than AP would be needed.

  19. By P.M.Lawrence on 15 November 2009

    Also, you have moved the problem one level further back. What should we presume people’s status as state workers is? In a sense, the way things are now, we all work for a state. Should there be some specific criteria for what working for the state really is? Who should determine and/or apply those?

    Don’t forget that any such loosening in the rules can be turned against people, as in Robert Bolt’s A Man For All Seasons:

    Roper: So, now you give the Devil the benefit of law!

    More: Yes! What would you do? Cut a great road through the law to get after the Devil?

    Roper: Yes, I’d cut down every law in England to do that!

    More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

  20. By George Donnelly on 15 November 2009

    In absentia by design? How would that be fair?

    Of course they can present their case. Common law rules should be observed.

    “The presumption of innocence – being considered innocent until proven guilty – is a legal right that the accused in criminal trials has in many modern countries.”

    So if you’re talking about it outside of a legal context, it’s up to you to specify that and define it’s meaning there.

  21. By Jim Davidson on 16 November 2009

    I mention red markets and assassination politics in my latest blog over at – Classical Liberalism: Fail.

  22. By Winterset on 16 November 2009

    My TrackBacks never seem to work so I’ll post a note saying I commented on this on my blog. You can check it and comment back over here.

  23. By marta pe on 18 November 2009

    it’s unethical.
    a priviliged actor of state is still a human being and to treat her as a different species is ethically wrong.
    however, proving somebody guilty doesn’t have to require trials, i think. if you see the guy in the picture murdering somebody you know is innocent, not wanting to be killed etc., then you are ethically right to stop that. i guess.

  24. By George Donnelly on 18 November 2009

    Absolutely, if you’re there you can exercise the other person’s right to self-defense. But if it’s after the fact, best to get a jury together IMHO.

  25. By WageSlave on 18 November 2009

    This discussion from Mike’s original thoughts onward have been very thought provoking and it’s good we are forced to face these questions. Moral and ethical people do these exercises to make sure they stay in that framework. Also good to consider the various POV’s given.

    However, try something of a different approach but look again at the picture and ignore the uniforms and other symbols of state and then pose the questions of presumption of innocense. How would the State for example see you if you acted to stop the taking of this man’s life? How would the State see you if in order to preserve the innocent man’s life, you took the life of the aggressor? Consider all aspects of this event as if all actors were non-state. The man with the gun is a neo-nazi, anti-semitic gang leader and the rest his followers and this event is some initiation rite.

    Now return to the photo where the State actors have the illusion of law (legal orders to kill jews) and then commit the same actions on your part to save the man and then see on your behalf how far presumption of innocense applies from the State itself? Would it be fair to say that you’d see that day’s sunset at room temperture from the inside of a box? Executed for the purpose of preserving the presumption of innocense?

    Non State actors, you are hero! State actors, you are villian! Would that be fair to say? Now consider again the presumption of innocense using the State’s standards? Should that be ours? Us and Them? They set the rules so make them live with it? Reject morals and ethics because they did? Tempting is it not?

    This may in no way answer the greater question at hand and what the moral direction might be but it sure blows the lid off the illusion of presumption of innocense IMO that anyone dealing with state actors might think they have. When we fight among ourselves as non-state actors, the presumption of innocense may exist although one might consider this link—Pt-1/18$49343 before accepting even that as fact. Go against the state, do as I in the 80’s and 90’s and thumb the nose at IRS even with good legal standing, and like Toto, you’ll see real quick how the man behind the curtain really acts.

    However, to follow their example IMO negates the need to dissolve from their system to create our own but rather stay in their system and fight it from within. Good luck with that!

    I don’t pretend to answer the many vexing questions that Mike’s original comments have posed or the many good ones posed by others but understand, the state when you oppose it sees only one thing, GUILTY AS HELL and that’s before the theater of trial by jury.

    I abhore violence as violence begets violence but how far to exact punishment on State actors can become a deadly question. Revolutions can start out under noble reasons but devolve into killing fields once the revolters take control and the blood stains on their hands can be just as bad if not worse than the previous monster.

    Consider the words to the song “The Knife” by Genesis and how easily we can take a wrong turn and become what our enemies were!

    enjoyed thoughts of all on this subject

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