The Presumption of Innocence & the Presumption of Dangerousness

This past weekend, UC Irvine’s Literary Journalism Program together with UCI’s School of law sponsored a unique interdisciplinary conference titled “Justice and Injustice: The Consequences of Storytelling in the Courtroom.”

The conference (in which I was fortunate enough to take part) was unusually dynamic, and many of the topics discussed by the event’s panelists and keynote speakers will find their way into WLA stories and posts in the future.

But a cluster of this week’s news stories pointed directly to two issues that came up repeatedly, including in the Friday evening presentation of superstar lawyer, author, and justice advocate Bryan Stevenson.

The issues are the presumption of innocence and what Stevenson called, “the presumption of dangerousness.”

Here are the stories that brought those two concepts—at least tangentially—to mind:

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IS THE DEFENDANT WHITE OR NOT?

As the jury selection takes place in the trial of Dzhokhar Tsarnaev, one of the two alleged Boston Marathon bombers, there is a lot of concern about whether or not the ethnicity of the jurors will affect their views.

But, it appears there is another likely significant factor that could affect jurors’ potential for impartiality, which social scientists Nour Kteily and Sara Cotterill bring up in an Op Ed for the New York Times.

While Kteily and Cotterill are writing about Tsarnaev, the results of research they conducted regarding his case, point well beyond the matter of the alleged Boston Marathon Bomber to some discomforting conclusions about the part race may play—in general—in certain people’s perceptions of how lightly or harshly a defendant should be treated by the justice system.

Here’s a clip from their essay:

No sooner did the F.B.I. release photographs of Mr. Tsarnaev and his older brother, Tamerlan, three days after the bombings, than questions arose about the racial identity of the suspects. (“Are the Tsarnaev Brothers White?” ran a headline in Salon.) Although neither brother matched the visual prototype of a white American, both hailed from the Caucasus, the region that gave rise to the term “Caucasian,” and both had lived in America for many years.

In the aftermath of the bombings, we sought to answer two questions: If white people perceived Dzhokhar Tsarnaev as less white, did that influence their support for treating him harshly? (Tamerlan was dead by this point.) And if people varied in how white they considered Mr. Tsarnaev to be, what psychological propensities, if any, determined whether they perceived him as more like “us” or more like “them”? We, along with three of our colleagues, published our findings last year in the journal Personality and Social Psychology Bulletin.

Within hours of the F.B.I.’s release of the suspects’ photographs, we collected responses from 426 white Americans to a broad questionnaire assessing a range of their demographic information as well as aspects of their ideological orientations. Eight days later, we offered these same participants the opportunity to respond to a second questionnaire. Here, we presented them with the original F.B.I. photos, and asked them to tell us how white they thought the suspects looked.

We then asked the participants whether they endorsed statements such as “I hope the perpetrator of the Boston Marathon attacks rots in hell” and “It is O.K. for Tsarnaev not to have been read his Miranda rights before interrogation” and “We shouldn’t rush to judgment in bringing the perpetrator of the Boston Marathon attacks to justice.” They were also asked to indicate the sentence that they felt Mr. Tsarnaev ought to receive should he be found guilty, with options ranging from “a maximum of 20 years in prison with the possibility of parole” to “the death penalty.”

We found that there was substantial ambiguity about whether the Tsarnaev brothers were white. On a scale from zero (nonwhite) to 100 (white), the participants varied in their perceptions, with ratings running the full gamut from zero to 100. The average rating was around 64.

When the researchers asked the same research participants about what kind of punishment Tsarnaev ought to receive, it turned out that those who rated Mr. Tsarnaev lowest on the “looking white” scale, were in favor of punishing him the most severely.

“In a case like Mr. Tsarnaev’s,” Kteily and Cotterill concluded, “where guilt is widely presumed and where the outcome will most likely fall on one side of the line between life imprisonment and death, this finding seems especially relevant [when it comes to jury selection].

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IS THE LITERAL APPEARANCE OF INNOCENCE NECESSARY FOR THE ASSUMPTION OF INNOCENCE?

The week also features jury selection for another alleged purveyor of mass violence, namely James Holmes, the man accused of killing 12 people in a Colorado movie theater. As with Tsarnaev, the issue is less one of guilt or innocence than it is a matter of what kind of punishment should be meted out. With this in mind, Holmes’ attorneys naturally want their client to look the most ordinary and the least threatening possible.

Beth Schwartzapfel of the Marshall Project writes about the issue in general of shackling or not shackling prisoners when they come to court, how such decisions can affect a trial’s outcome, and whether the garb of innocence is important to the presumption of innocence that is supposed to be a pillar of the American legal system.

Here are a couple of short clips:

When jury selection began this week in the trial of James Holmes — the man accused of killing 12 people in a Colorado movie theater — he looked different than he had in prior court hearings. He traded his jail garb for khakis and a sport coat. Instead of wearing shackles and chains, he was discreetly anchored to the floor by a tan cable meant to disappear into the tangle of computer cords at the defense table.

That cable, which was attached to a harness under Holmes’s clothes, was the result of much legal volleying before any potential jurors arrived. His lawyers had argued that seeing Holmes in restraints would ruin his opportunity to be presumed innocent. Shackles and other extreme security measures (like the snipers posted on the roofs of nearby buildings) would give jurors the impression that “extraordinary security is necessary to contain Mr. Holmes,” they wrote, “and few things could be more prejudicial to a man on trial for his life.”

[SNIP]

James Holmes’s legal team seeks to persuade the jury that their client’s crimes were committed as a result of his longstanding mental illness. Under the law, he will have the best chance of a fair trial if he appears before jurors looking like an ordinary person. “The presumption of innocence requires the garb of innocence,” wrote a judge in another Colorado courtroom almost 70 years ago, “and regardless of the ultimate outcome, or of the evidence awaiting presentation, every defendant is entitled to be brought before the court with the appearance, dignity, and self-respect of a free and innocent man

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THE PERILS OF THE PRESUMPTION OF DANGEROUSNESS

One of the topics that threaded through many of the panel discussions at the Justice and Injustice conference I mentioned above, was the legal precept of the presumption of innocence, which both the defense attorneys and prosecutors on the various conference panels said that—with rare exceptions—seemed increasingly hard to come by in criminal court.

A twin topic that keynote speaker Bryan Stevenson talked about was something he called the presumption of dangerousness. He brought it up regarding the disproportionately harsh treatment of young men of color by the criminal justice system.

It is that presumption of dangerousness that clearly frightened NY Times columnist Charles Blow when he heard about his Yale student son’s experience as the young man made his way back to his dorm room from the school library.

Here’s a clip from Blow’s column:

Saturday evening, I got a call that no parent wants to get. It was my son calling from college — he’s a third-year student at Yale. He had been accosted by a campus police officer, at gunpoint!

This is how my son remembers it:

He left for the library around 5:45 p.m. to check the status of a book he had requested. The book hadn’t arrived yet, but since he was there he put in a request for some multimedia equipment for a project he was working on.

Then he left to walk back to his dorm room. He says he saw an officer “jogging” toward the entrance of another building across the grounds from the building he’d just left.

Then this:

“I did not pay him any mind, and continued to walk back towards my room. I looked behind me, and noticed that the police officer was following me. He spoke into his shoulder-mounted radio and said, ‘I got him.’

“I faced forward again, presuming that the officer was not talking to me. I then heard him say, ‘Hey, turn around!’ — which I did.

“The officer raised his gun at me, and told me to get on the ground.

“At this point, I stopped looking directly at the officer, and looked down towards the pavement. I dropped to my knees first, with my hands raised, then laid down on my stomach.

“The officer asked me what my name was. I gave him my name.

“The officer asked me what school I went to. I told him Yale University.

“At this point, the officer told me to get up.”

The officer gave his name, then asked my son to “give him a call the next day.”

My son continued:

“I got up slowly, and continued to walk back to my room. I was scared. My legs were shaking slightly. After a few more paces, the officer said, ‘Hey, my man. Can you step off to the side?’ I did.”

The officer asked him to turn around so he could see the back of his jacket. He asked his name again, then, finally, asked to see my son’s ID. My son produced his school ID from his wallet.

The officer asked more questions, and my son answered. All the while the officer was relaying this information to someone over his radio.

My son heard someone on the radio say back to the officer “something to the effect of: ‘Keep him there until we get this sorted out.’ ” The officer told my son that an incident report would be filed, and then he walked away.

[SNIP]

What if my son had panicked under the stress, having never had a gun pointed at him before, and made what the officer considered a “suspicious” movement? Had I come close to losing him? Triggers cannot be unpulled. Bullets cannot be called back.

My son was unarmed, possessed no plunder, obeyed all instructions, answered all questions, did not attempt to flee or resist in any way.

This is the scenario I have always dreaded: my son at the wrong end of a gun barrel, face down on the concrete. I had always dreaded the moment that we would share stories about encounters with the police in which our lives hung in the balance, intergenerational stories of joining the inglorious “club.”

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AND IN OTHER NEWS……OBJECTIONS TO WAZE TRACKING COPS CONTINUES TO HEAT UP

Still more law enforcement voices are calling for the WAZE communal traffic tracking Ap to remove any police tracking features. LAPD Chief Charlie Beck has been a strong voice in the matter.

NPR’s Sam Sanders has the story for NPR’s Morning Edition.

Here’s a clip:

Waze, the popular navigation app boasting more than 50 million users worldwide, has a new critic: police officers. Over the last few weeks, law enforcement officials have been urging the app and its owner, Google, to disable a feature that allows users to report when they’ve spotted a police officer, in real time, for all other Waze users to see.

Sergio Kopelev, a reserve sheriff in Orange County, Calif., is one of the law enforcement officials behind the push to remove Waze’s police-tracker. He says he first discovered the feature through his family.

“In early December, or mid-December, I saw my wife using the app when she picked me up from the airport,” Kopelev tells NPR. “I saw her tag a location of a police officer. And then as the officer was moving, I saw her update the location… She told me about Waze, and I said, ‘Look, this isn’t good.'”

After that day, Kopelev reached out to Waze directly. He made posts about the feature on Facebook. And he eventually gave a talk about the app and its police tracker to the National Sheriffs Association’s annual convention. His talk there led to even more outcry from officials and a good amount of media coverage, but even before that conference, police around the country had been speaking out about it.

In late December, LAPD Chief Charlie Beck sent an open letter to Google CEO Larry Page, saying that the app endangers officers’ lives. “I am concerned about the safety of law enforcement officers and the community, and the potential for your Waze product to be misused by those with criminal intent to endanger police officers and the community,” Beck wrote.

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MINI THERAPY HORSE JOINS THE LASD

One more thing in case you’ve missed it: a ridiculously cute miniature therapy horse has just joined the Los Angeles Sheriff’s Department.

Just thought you’d like to know.