Lately, I’ve been having odd dreams. In a way, it’s a real bummer. “In real life,” I fight with judges on a daily basis. Sometimes I have to practically beg them to follow the law. And now I’m doing the same thing in my dreams. Now, “in real life,” and also inside my head while sleeping, I’m fighting for a dream of justice.

The Presumption of Guilt

I fought for and — very much to my surprise — won an amazing victory for a falsely-accused man about a week ago.

The prosecutor alleged the man violated two crimes of a type that, without wanting to, I’ve “sort of” begun to focus on, and which I do reluctantly, because I find them very difficult to fight: sex crimes.

I say “reluctantly” because while I fight for, and dream of justice, the law transformed in a different direction.

Over the last 40 years, rape laws have undergone a fundamental transformation. In some ways, these changes have removed barriers to rape victims receiving a fair trial and have helped bring many rapists to justice. But in other ways the reforms have gone too far, upending traditional tenets of criminal procedure and removing due process protections for the accused.

The overall effect has been to shift the burden of proof to the defendant, likely resulting in more wrongful convictions. In Washington state, for example, juries receive the following instruction: “The burden is on the defendant to prove by a preponderance of the evidence that the sexual intercourse was consensual.”

As a result, false allegations have increased, thus diluting the availability of services and protections for victims, and diminishing the credibility of future victims’ claims.

— Center for Prosecutor Integrity, “How Rape Laws Remove the Presumption of Innocence” (undated)

If the Charges Involve a Minor, It’s Even Worse

When the prosecutor charges someone with sex crimes involving minors, things get worse. Sex crimes alleged involving minors invoke a presumption of guilt more strongly. And the worst of sex allegations invoke it more strongly still. But it’s no perversion to say #allcrimesinvokeit. What I said before clearly shows it.

This is why the neighbors in Mario’s argument [that the presumption is just a technical rule] did not ask, “I wonder why they’re taking our neighbor away” instead of being “convinced that you must’ve done something to provoke this reaction” of the authorities. This is why our judges’ benchbooks, our system of bail, and our entire criminal justice system presume guilt. This is how Americans were turned into ‘merkins.

— Rick Horowitz, “The Presumption of Guilt” (March 4, 2020)(bracket section added)

And, as I said, crimes involving minors only make it worse.

But that first quote above from the Center for Prosecutor Integrity — a unicorn if ever there were one — buries more than just one problem. When it says, “rape victims receiving a fair trial” it makes a different presumption. Unless you mean to talk about a civil trial (and we aren’t as is clear by the reference to “convictions”), the jury judges the defendant. Criminal trials try defendants, not victims. In fact, unless the charge is proven, there is no victim.

The Problem of Requiring Proof

When I started this post, I thought it was going to be about bail motions. In my dream of justice I had right before waking to write this, I was in a bail hearing. It was the presumption of guilt in bail hearings that I was discussing with a judge.

Maybe I’ll somehow get back to that. But as I thought about the case I just miraculously won — and I do very much consider it a miracle, even though I believed my client innocent from the start — everything came back to sex. (A couple of attorney-friends and my client say it was my skill. But I’ve done enough of these cases to realize even the best arguments usually lose at the preliminary hearing, which is what this was.)

And, by the way, why couldn’t I have just had a regular sex dream?!

But, as Scott Greenfield might say, I digest. (I actually take a medication that slows that, causing me great grief, so, in my case, I really do. Digest, that is. Longer and with more discomfort than used to be the case. But now I digress.)

For an innocent man to fight a false charge involving sexual allegations these days is almost nuts.

#MeToo Means Only Guilt for You

And why? Because the #metoo movement virtually guarantees nothing short of definitively proving you were on another planet at the time of the commission of the alleged crime will result in a “not guilty” verdict. As one unknown writer put it:

I recommend reviewing any given allegation carefully, and proceeding accordingly. If it is clearly not credible – for example, if the alleged perpetrator can document having been elsewhere at the time of the alleged assault – it is fine to express skepticism regarding the complaint.

In lieu of clear evidence to the contrary, I think it is best to refrain from dismissing the allegation out of hand. 

— Trauma Institute & Child Trauma Institute, “The Problem With ‘Innocent Until Proven Guilty’” (undated)

Yet, read the article. “Express skepticism” — that doesn’t mean find the accused “not guilty,” by the way — if he “can document having been elsewhere at the time of the alleged assault[.]” The article otherwise allows no justification for “skepticism,” let alone a verdict of “not guilty.” In fact, the author recommends we make the “alleged perpetrator” into a social pariah, “so that offenders do at least face social and financial consequences[.]” You know, in case some jury of 12 disinterested people — people who by now have been trained to convict, but sometimes don’t after seeing all the actual evidence — decides not to find enough evidence for guilt. I mean, the jury might be stupid, but we who did not have all the evidence presented to us know better.

At least one court struck down the state law requiring an accused-but-not-convicted child molester to prove his own innocence or suffer automatic conviction. But more people these days agree with the unnamed writer above: there’s a problem with “innocent until proven guilty.”

Oh. By the way, the actual rule was “innocent unless proven guilty.” You’re not “innocent” for a little while, and then you’re “proven guilty.” The old rule is you’re presumed innocent — from the start — and you remain innocent unless a jury decides otherwise.

Or unless the people who did not hear or see the evidence, as I noted above, decide you’re guilty no matter what the people who did hear or see the evidence decide.

A Mind Prepped for Guilt

Okay. So let’s see if we can get to bail, after all. No doubt the presumption of guilt that infects our system today comes from more than one source. But the most obvious place criminal defense lawyers like me fought it involved trying to get our clients bailed out of jail. Here, the dream of justice has very much become a nightmare.

Back in 1974, a California appellate court said,

We are of [the] opinion that the Constitution, in declaring bail to be a matter of right, contemplated only those cases in which the guilt of the party had not been already judicially ascertained; cases in which the prisoner as yet stood upon his plea of not guilty, supported with all the presumptions of innocence with which the law delights to surround him.

People v. Turner, 39 Cal.App.3d 682, 684 (1974)(alteration in original).

But the courts made a wrong — or maybe I should say “right” (as in right-wingnut conservative) — turn on the way to bail hearings. The last few years, numerous appellate opinions argued that, at least for bail hearings, judges presume the accused is guilty of the charged crimes.

Even after the decision in In re Humphrey, appellate courts — including the California Supreme Court — continued to state,

Along with those primary considerations of victim and public safety, the court must assume the truth of the criminal charges.

In re Humphrey, 11 Cal.5th 135, 153 (Cal. 2021)

I have always argued against this. Most recently, I had argued the following in numerous briefs in superior courts, appellate courts, and even to the California Supreme Court:

Any reliance on the line of cases from the late 1800s and early 1900s for the idea that guilt must be presumed is misplaced, misstated, and based upon a misunderstanding, because all those cases involved the setting of bail after an indictment, which necessarily involved a finding of probable cause, based on evidence, by a grand jury. E.g., In re Application of Horiuchi, 105 Cal.App. 714, 715 (1931), quoting Ex parte Ryan, 44 Cal.555 (1872); Ex parte Ruef, 7 Cal.App. 750 (1908). Courts are not permitted to substitute their own judgments for those of grand juries. Stark v. Superior Court, 52 Cal.4th 368, 406-07 (2011)(duty of court limited in reviewing indictments; court does not substitute its judgment as to weight of evidence).

I also always pointed out:

If the charges alone were sufficient evidence, the Criminal Complaint would be evidence. It is not.

— my briefs, citing Sheard v. Superior Court, 40 Cal.App.3d 207, 212 (1974)

Until the recent decision in Harris — about which I’ll say more in a moment — it never did any good. No matter how I argued it, courts always fell back on “I must presume the truth of the charges.” Their minds thus primed for guilt, pretrial detention became the norm. Nor did it matter if, as in one of my cases, there was ample evidence the accused was actually the victim of the crime, and someone else committed the crime against him.

That guy sat in jail for about six months before we were able to do the preliminary hearing, which I won, and the judge ordered him released.

The Presumption of Guilt No Longer Part of Bail Hearings

In Harris, the California Supreme Court finally said,

To hold that a court must assume the truth of the criminal charges in making such a determination [of guilt] would improperly relieve the People of the burden that the constitutional text, so construed, assigns to them. Accordingly, we clarify here that a court does not assume the truth of the criminal charges when evaluating whether to order a defendant held without bail under article I, section 12(b).

In re Harris, 16 Cal. 5th 292, 321 (2024)(bracketed portion added)

That, of course, just happened. The lower courts have not been able to wrap their heads around it yet. Nor do they want to, because they fear the public turning them out — firing them — if they do. Especially when it comes to sex crimes.

So now, instead of assuming the truth of the charges, they instead say “the facts are evident [and] the presumption [of guilt] great.” See Cal. Const., art. I, § 12. Why? Because the prosecutor told the judge that someone said the accused person was guilty. We’re still presuming guilt. We’re just giving a different reason for why we’re doing it.

A New Start?

As of today, judges in the areas where I practice are still essentially presuming guilt. They intone, as a priest would, the magic words that “the facts are evident [and] the presumption great.” (The brackets are because it’s really “or,” but the judges nearly always say “and.”)

Obviously, they don’t follow the law when they do this. And, often, that’s not the only part of the new approach appellate courts take that superior courts ignore.

So criminal defense lawyers like me will continue to dream of justice. We will continue to fight the presumption of guilt. And we will file as many writs as it takes until the superior court judges begin to understand that trials are for determining guilt.

Until then, an accused person is “presumably [an] innocent person.” Harris, supra, 16 Cal.5th at 318.

But good luck getting a superior court judge to believe it.

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