Presumption Of Innocence Is For The Privileged

I believe in the presumption of innocence. As an American, a lawyer, and a black woman, I believe it is perhaps the most important principle in our criminal justice system — a last bulwark against the structural momentum that incentivizes convictions over justice and minimizes the value of some lives under the pretext of protecting others.

The presumption of innocence is, in fact, the fundamental project of Black Lives Matter. The controversial movement, born from a controversial hashtag, was intended to elevate black lives not above others, but so that they are considered equally valuable. It’s a movement intended to call attention to the fact that some Americans, disproportionately black and poor, are frequently presumed guilty in extrajudicial contexts — killed by police officers who rarely face consequences; they are denied due process and the presumption of innocence.

The political right in this country has typically aligned itself behind law enforcement as a principle, regardless of how faithful individual officers have been to the duties that come with their shields. As a result, the presumption of innocence and other constitutional protections intended to safeguard the life and liberty of ordinary citizens have been of secondary importance to them, if they register at all.

That is, until Brett Kavanaugh.

A few weeks ago, news broke that a psychology professor named Christine Blasey Ford had come forward with an accusation that the Supreme Court nominee sexually assaulted her at a house party in 1982. Last Thursday, both Ford and Kavanaugh offered testimony to the Senate Judiciary Committee. Kavanaugh denied Ford’s accusations, but to most observers, Ford — measured and sincere where Kavanaugh was evasive and angry — appeared to be the more credible of the two.

Since the hearings, Republicans have rushed to explain and defend Kavanaugh’s furious testimony, framing his rage as the rational response of an innocent man falsely accused. Some conservatives have even abdicated the pretense of Kavanaugh’s innocence, writing articles arguing that “Kavanaugh should be confirmed to the Supreme Court even if he’s guilty.” The standard by which we should judge Kavanaugh, they seem to say, is beyond guilt or innocence. It’s something more. It’s beyond credibility. He’s literally beyond a reasonable doubt.

Tuesday night, at a rally in Mississippi, President Donald Trump expressed concern about what precedent a failure to confirm Kavanaugh would set. He lamented what it would mean if a stranger could cause a person to lose their job by merely making an accusation. “Guilty until proven innocent, that’s very dangerous for our country. That’s very dangerous for our country,” he repeated, emphasizing that in America, due process comes first.

Of course, he used to feel differently.

On April 19, 1989, Trisha Meili was assaulted, raped, and nearly beaten to death while jogging in Central Park. Subsequently, five boys, then ages 14 to 16, were arrested and jailed for the assault. On May 1, 11 days later, and before the conclusion of any investigation, much less a trial, Trump spent $85,000 on a full-page ad in all four of New York’s major newspapers, including the New York Times, calling on New York to “BRING BACK THE DEATH PENALTY. BRING BACK OUR POLICE!” Even if you remember the ad from when it ran, it’s worth taking another look at the small print today. “They must serve as examples so that others will think long and hard before committing a crime or an act of violence,” Trump inveighed. “I am not looking to psychoanalyze or understand them, I am looking to punish them. If the punishment is strong, the attacks on innocent people will stop.”

All five convictions were vacated in 2002, after Matias Reyes, a serial rapist and convicted murderer, confessed to raping Meili, and DNA evidence confirmed his guilt. To date, Trump has never apologized for calling for the deaths of these innocent children.

“At what point did we cross the line from the fine and noble pursuit of genuine civil liberties,” asked Trump in his 1989 ad, “to the reckless and dangerously permissive atmosphere which allows criminals of every age to beat and rape a helpless woman and then laugh her family’s anguish. And why do they laugh? They laugh because they know that soon, very soon, they will be returned to the streets to rape and maim and kill once again — and yet face no great personal risk to themselves.” They laugh, in other words, with impunity.

This week, in Mississippi, Trump was the one laughing. With an enthusiastic crowd behind him, Trump joked about Ford’s inability to remember certain details about the night of her alleged assault, 36 years ago: “How did you get home? ‘I don’t remember.’ What neighborhood was it? ‘I don’t know.’ Where’s the house? ‘I don’t know.’ Upstairs, downstairs, where was it? ‘I don’t know. But I had one beer.’” As the crowd behind him jeered, it was difficult not to recall Ford’s fragile testimony, during which she said one thing she could never forget was the laughter of her attackers, “indelible in the hippocampus,” still echoing 36 years later.

At last Tuesday’s rally, Trump seemed to consider, for a moment, that the claims against Kavanaugh might have merit. But it didn’t seem to matter. “People are saying, ‘well maybe it’s true.’ And because of the fact that maybe it’s true, he should not become a United States Supreme Court Justice,” he said. “How horrible is this? How horrible is this?” It wasn’t a denial. It was a rejection of the premise that anything, even a credible assault claim, should stand between Kavanaugh and his destiny.

How horrible is it for one extremely powerful man to be barred from ascending to an even higher, more influential position — at least while a credible claim of assault is investigated? Is it more horrible than condemning five minors to death without due process, 11 days after their arrest? A concern for “due process” was no bar against Trump’s public ire then. What does it say about Trump’s interest in deterring sexual predators that he won’t deny Kavanaugh a job promotion — even temporarily? What does it say about his concern for women and young girls who, like Ford, have been pinned to beds — muzzled by a forceful hand while another searches frantically for the borders of their bathing suits?

Kavanaugh is being cast as not just innocent, but chosen. “No. 1 in his class at Yale, perfect human being,” is how Trump described him Tuesday night. He was “destined for the Supreme Court.” “Top in his class at Yale Law School,” he emphasized again. “He’s led, like, a life that’s unbelievable. He’s had no problems.” How dare Democrats accuse him of a “gang rape!” averred Trump.

It was a rejection of the premise that anything, even a credible assault claim, should stand between Kavanaugh and his destiny.

It’s a heavy accusation indeed. But when the targets were Hispanic and black teenagers, Trump didn’t hesitate to declare that “CIVIL LIBERTIES END WHEN AN ATTACK ON OUR SAFETY BEGINS!” Today, the impulse to curb civil liberties in favor of safety is no more. Gone is the goal of disincentivizing bad behavior. There’s no “bad behavior” that merits keeping a good ol’ boy off the bench.

Trump finds it unconscionable that Kavanaugh — raised in a wealthy family, sent to a prestigious prep school, admitted to Yale as a legacy student, plucked to sit on the second most powerful court in the land (without ever having spent a day as a judge), and now nominated to the Supreme Court — might not get exactly what he wants. Who but the most egoistic narcissist would feel entitled to a job that only 113 Americans have ever had? Trump is angry on Kavanaugh’s behalf not because Kavanaugh earned a position on the Supreme Court, but because he sees infinite privilege as their shared birthright. It’s clear that Trump, who was recently exposed by the New York Times as having benefited enormously from his father’s fortune, both legally and illegally, relates personally to Kavanaugh in more ways than one. “I’ve had dozens of accusations like this against my myself,” Trump repeated several times last Tuesday. The conclusion to be drawn from that admission was tacit: I’ve been accused, yet I am president. Why should we start holding anyone responsible for sexual assault now?

Perhaps if the Central Park Five had gone to a prep school Trump would have been more sympathetic. But they spent their high school years, and beyond, in Rikers. Perhaps if Trump saw their lives as valuable, he would have hesitated before accusing children of “gang rape.” Perhaps he would not have casually tossed aside the importance of the presumption of innocence if one of those boys were in a position to help him, the way Kavanaugh is poised to protect Trump from the criminal consequences of the Mueller investigation. Perhaps.

Another tearful testimony occurred Tuesday, this one in a Chicago courtroom. It was from Officer Jason Van Dyke, of the Chicago Police Department, who shot 17-year-old Laquan McDonald to death on October 20, 2014, almost four years ago. McDonald had a knife that night. And he was wielding it. But Van Dyke, standing 10 feet away, had a gun. His proximity to McDonald, was not the result of McDonald’s approach, but Van Dyke’s: Van Dyke testified that he drove up to McDonald in his squad car with the intention of knocking him over with his door. But his plan failed. Instead, he got out of the car and pointed his gun at McDonald.

Police video shows McDonald walking in the middle of the street, parallel perhaps, but not toward the officers who stood, guns drawn, to his left. Suddenly, seemingly out of nowhere, he falls to the ground, spinning from the force of the bullet and collapsing like a rag doll. The video has no audio, so it’s difficult to tell from looking, but an autopsy confirmed that Van Dyke emptied 15 more rounds into McDonald after he was on the ground. He fired until his gun was empty.

Van Dyke said he shot McDonald “in defense of his life.” He said he emptied his gun into McDonald because he thought that the 17-year-old was getting back up. “I could see him starting to push up with his left hand off the ground,” he said. “And I see his left shoulder start to come up, and I still see him holding that knife with his right hand, not letting go of it. And his eyes are still bugged out. His face has got no expression on it.”

The video shows none of this. And when the prosecutor asked Van Dyke to show where, on the tape, McDonald tried to get up, he said “the video doesn’t show my perspective.” When asked to tell the court what he said immediately after the shooting, he said he couldn’t recall. “I was still in shock.” When asked why he didn’t move away from McDonald if he felt threatened, he said he thought he did. He then shifted the blame to McDonald: “He could have made a decisive turn and walked in the opposite direction. He could have thrown that knife away and ended it all right then and there.”

Due process is not a shield behind which the privileged can duck the social consequences of their bad choices. It’s a bedrock principle, not a political playing card.

But the only one who acted with forethought that night was Van Dyke. It was Van Dyke who decided to get close to McDonald. He felt safe doing so because he knew he had a gun, and McDonald didn’t. Van Dyke knew that, if push came to shove, he could always kill McDonald if he got scared. He contemplated as much before he arrived on the scene, saying to his partner, “Oh my God, we are going to have to shoot the guy.”

I ask you to consider in what world does an armed police officer, safe in his car, minutes away from man with a knife, contemplate murder as a necessary recourse? In what world does he exit a car and approach an erratic young man with a knife unless he sees killing a suspect as a reasonable option? How might a person act differently if the murder of a 17-year-old weren’t so casually on the table? Might they keep their distance? Wait for the Taser team, which was en route, before approaching? Might they, at the very least, stop firing bullets into the young man once he lay prostrate on the ground?

What does it say about the value of a life when killing a suspect seems a reasonable path of first resort? And might this be evidence that all lives don’t matter in the eyes of the law?

The presumption of innocence is based on the principle that all human lives have inherent value and are worth protecting equally. It’s intended to protect the weak and the powerful alike from claims that would strip them of life and liberty. Due process is a call to inquire into facts: to hear and vet testimony, to consider memory lapses in context (be they Ford’s or Van Dyke’s), and to weigh the evidence impartially. It’s not meant to be a shield behind which the privileged can duck the social consequences of their bad choices. It’s a bedrock principle, not a political playing card. And it’s a right that should not be extended selectively based on race, class, or pedigree.

Republicans don’t want to see the Kavanaugh hearing as having to do with race, and in some ways I agree. It’s about more than just race. It’s about that fact that Kavanaugh is a member of a particular class in this country, overwhelmingly white, for whom the presumption of innocence is a birthright. This week, for once, Americans are asking that a member of this class be held responsible for his actions and denied a promotion — not that he be sent to jail, like the innocent teenagers of the Central Park Five, and not that he be murdered, like McDonald, who was sentenced to death for the crime of wielding a knife without judge, jury, or sentencing — without due process.

All that is being asked of the Republicans on the Senate Judiciary Committee is to not treat a seat on the Supreme Court like an entitlement.

All that is being asked of the Republicans on the Senate Judiciary Committee is that Kavanaugh be treated the same as ordinary Americans — the same as the middle- and working-class whites who cheered Trump on at Tuesday night’s rally would be treated. All that’s being asked is that Kavanaugh be judged like most Americans who didn’t go to Yale; whose lives aren’t so charmed as his; who aren’t considered “destined” to ascend to a lifetime appointment on the highest court of the land.

All that is being asked of the Republicans on the Senate Judiciary Committee is to not treat a seat on the Supreme Court like an entitlement. Due process is important. But this is not a trial. And a Supreme Court nomination is a privilege to be earned, not bestowed.

If they confirm Kavanaugh, the Republicans in the Senate will be abandoning all pretense that they care about meritocracy or the victims of crimes. They’ll be preserving the impunity of the elite, and they’ll be doing so with the imprimatur of average, everyday Republicans who will never be given the same benefit of the doubt as Kavanaugh, and his “perfect” life. Even more painfully, they’ll be doing so over the voices of millions of Americans, citizens who are equally the responsibility of Trump and other Republican leaders — women, people of color, the poor, and their allies — who, for centuries, have had our claims considered beyond reason; doubted, because of who we are.