The Supreme Court will hear arguments this term in Nelson v.
Colorado, a case raising some interesting and important questions about the
scope and meaning of the “presumption of innocence.”
Shannon Nelson was convicted in 2006 of five sexual assault
offenses she allegedly committed against her children. In addition to a prison
term, Nelson’s sentence included several monetary charges that state law
imposes on defendants who are convicted of crimes, including (1) a $125 fee
designated for Colorado’s Crime Victim Compensation Fund; (2) a $162.50
“surcharge” designated for Colorado’s Victims and Witnesses Assistance and Law
Enforcement Fund; (3) a “docket fee” of $35; (4) a “time payment fee” of $25;
and (5) restitution amounting to $7,845, for a total of $8,192.50.
Because she was unable to pay, the Colorado Department of
Corrections began deducting money from her inmate account while she was
incarcerated to satisfy the debt she owed to the state.
Nelson’s convictions were reversed on appeal, and on retrial
she was acquitted of all charges. She then filed a motion with the trial court,
seeking a return of the money — $702.10 — that had been transferred from her
prison account to the state pursuant to the now-vacated conviction.
The Colorado Supreme Court, over a stinging dissent by
Justice William Hood, held that the trial court did not have the authority to
order the state to refund Nelson’s money and that in order to obtain that
refund, Nelson would have to file a separate civil action under Colorado’s
Exoneration Act. That statute, enacted in 2013, authorizes an award of
compensation (up to $70,000 per year of incarceration) to those who have been
wrongfully incarcerated; additionally, it provides for a refund of fees and
costs paid to the state.
But individuals seeking such compensation and/or refund must
prove, by “clear and convincing evidence,” that they were “actually innocent”
of the crime with which they were charged – not merely that they were “legally
innocent” by virtue of never having been (validly) convicted, but innocent in
fact.
In other words, Nelson will not be “presumed innocent” in
the Exoneration Act proceeding; to get her money back — money that the state
acknowledges it would have had no claim on but for the now-vacated criminal
conviction — she will have the burden of persuading the court that she was, in
fact, innocent of the crimes charged.
It hardly seems fair.
You’ve seen it a thousand times on TV, the guy who’s been released from
jail who picks up, on his way out the door, all the stuff he had to turn over
to the cops when he was taken into custody — keys, phone, loose change,
wristwatch … It’s as though Colorado were to say: “We’re not going to give you
your stuff back unless you go to court and prove – by clear and convincing
evidence, no less! – that you’re actually innocent of the crime we thought you
had committed.”
An amicus brief submitted by the Institute for Justice and
the Cato Institute (that I helped write, and for which I’m counsel of record)
argues that not only is it not fair, it violates fundamental due-process
principles to reverse the presumption of innocence in this way.
There may well be no principle of law more familiar to most
people — if only from the uncountably large number of TV shows and movies that
have repeated the formulation — than the notion that a criminal defendant is
“presumed innocent” of all charges, and that the government has the burden of
proving guilt by proof “beyond a reasonable doubt.” And indeed, the Supreme
Court has held (see Coffin v U.S., 156 U.S. 432 (1895) and In re Winship, 397 U.S. 358 (1970) ) that
both parts of that formulation — that there is a “presumption of innocence” and
that it can only be overcome by proof “beyond a reasonable doubt” — are
incorporated into the due process clause of the Fifth Amendment, applicable to
state proceedings through the 14th Amendment.
The tricky part about this case is that Colorado hasn’t
reversed the presumption in a criminal proceeding; it is not proposing to force
criminal defendants to prove their actual innocence to avoid a criminal
conviction. That would be blatantly, and incontrovertibly, unconstitutional.
Instead, it is placing the burden of persuasion on Nelson (and others in her
position) in a civil proceeding — an Exoneration Act action for a refund of
fees and costs.
Our brief makes the argument, though, that due process requires
that the state apply the presumption of innocence even in the civil action
authorized by the Exoneration Act, at least with respect to persons who, like
Nelson, are not seeking some special benefit from the state (i.e., compensation
for the time they wrongfully served), but who are, rather, just seeking to get
back money that is rightfully theirs.
As we point out, the “presumption of innocence” has
extraordinarily deep roots in Anglo-American — indeed, in Western —
jurisprudence, traceable as far back as the Book of Deuteronomy (“one witness
is not enough to convict anyone accused of any crime”) and the law of ancient
Rome (in the maxim “de quolibet homine presumitur quod sit bonus homo donec
probetur in contrarium,” or “each person may be presumed to be a good man,
until the contrary is proved”).
In some ways, it’s a tricky legal construct, starting with
the idea that it’s not a true “presumption” at all. A true presumption is a rule of evidence,
requiring the fact-finder to accept that Fact B (the presumed fact) has been
established, either conclusively or until contrary evidence is produced, once
Fact A (the basic fact) has been proven.
A true presumption has a basis in fact; we mandate that the inference be
drawn, because it is more likely to be true than not. A child born of a husband
and wife living together is presumed to be the natural child of the husband. A
person who has disappeared and not been heard from for seven years is presumed
to be dead. A properly addressed letter delivered to the post office or a
common carrier was in fact delivered and received by the addressee.
But the presumption of innocence doesn’t work this way. It doesn’t mandate that the fact-finder draw
any factual inferences at all. It says
nothing about whether the defendant is innocent in fact. It would be odd if it
were otherwise; as anyone involved in the criminal-justice system will tell
you, it is almost certainly the case that most criminal defendants, in fact,
committed the acts on the basis of which they have been charged.
The presumption of innocence isn’t founded on any notion the
defendants generally are factually free from blame. It’s a broader principle,
rooted in policy, not statistical likelihood, that says that all people brought
before a tribunal “are taken, prima facie, i.e., in the absence of evidence to
the contrary, to be good, honest, and free from blame, presumed to do their
duty in every situation in life, so that no one need go forward, whether in
pleading or proof, to show as regards himself or another, that the fact is so,
but every one shall have it presumed in his favor.”
It actually works as a kind of anti-presumption. It forbids a fact-finder from inferring that
the defendant did commit the acts charged from the fact that she has been arrested,
arraigned, and indicted for a crime. It instructs fact-finders, as the Court
put it in Taylor v. Kentucky, 436 U.S. 478 (1978), to “put away from their
minds all the suspicion that arises from the arrest, the indictment, and the
arraignment, and to reach their conclusion solely from the legal evidence
adduced [and] nothing but the evidence, i.e., no surmises based on the present
situation of the accused.”
In an influential law review article published in 1895, the
eminent evidence scholar James Bradley Thayer put it nicely thus:
“It [the
presumption of innocence] says simply this: ‘It is the right of this man to be
convicted upon legal evidence applicable specifically to him. Start then with
the assumption that he is innocent, and adhere to it till he is proved guilty.
He is indeed under grave suspicion, and it is your duty to test and fairly to
weigh all the evidence against him as well as for him. But he is not to suffer
in your minds from these suspicions or this necessity of holding him confined
and trying him; he is to be affected by nothing but such evidence as the law
allows you to act upon. For the purposes of this trial you must take him to be
an innocent man, unless and until the government establishes his guilt.’ The
presumption of innocence reflects a long-standing societal judgment that ‘in
the eyes of the law every man is honest and innocent unless it be proved
legally to the contrary’.”
Shannon Nelson is legally innocent of any crimes. Whether she is factually innocent of those crimes
has not been determined and is irrelevant; in the eyes of the law, she is, like
all of us, assumed to be “honest and innocent,” and Colorado can’t deprive her
of her property until and until it proves otherwise (which is has not done).
* * *
David G. Post taught intellectual property and
Internet law at Temple and Georgetown Law Schools, and is the author of In
Search of Jefferson's Moose: Notes on the State of Cyberspace (Oxford). He is
currently is a Fellow at the Center for Democracy and Technology, and an
Adjunct Scholar at the Cato Institute.
No comments:
Post a Comment