In the wake of recent stories in the Washington Post where women have accused Republican Senate candidate Roy Moore of inappropriate sexual contact with them when they were teens and when Mr. Moore was in his 30s, there has been much discussion of the legal concepts of “innocent until proven guilty” and “proof beyond a reaonsable doubt.” A popular refrain from the right is that it is unfair for Mr. Moore to be evaluated as an unfit candidate for Senate when he has not been confronted by his accusers in court and where a jury has not weighed in on guilt beyond a reasonable doubt. This is not a policital post. If it were, I would discuss how odd it is to hear folks with certain political and religious leanings suddenly embracing core civil liberties concepts. And I would express my hope that their sudden interest in these concepts will remain with them when the accused is not a Republican candidate for the United States Senate.

What I would like to do, instead, is talk a bit more about where proof beyond a reasonable doubt and the presumption of innocence matter and where they don’t. I offer this perspective from having represented folks for years who are accused and who have been convicted crimes.

Proof beyond a reasonable doubt is necessary to overcome a legal presumption of innocence where a person has been formally accused of a crime and is facing trial for that crime in court. And, beyond that limited space, those concepts mean very little.

The overwhelming number of people accused of crimes do not wish for the opportunity to make a prosecutor prove their guilt beyond reasonable doubt. They would rather forego that opportunity in favor of a dismissal of charges, a plea to a lesser offense, a deal that results in no record of a conviction, or even an admission of guilt in exchange for probation. But the arena of proof beyond a reasonable doubt is a terrifying one. I suspect that the candidate, himself, and his followers would wish to forego the opportunity. That whole system, by the way, comes with some major flaws and a whole bunch of risk. We lawyers go to classes and read books to help us use marketing principles to influence juror behavior — both sides do it. Proof beyond a reasonable doubt and presumption of innocence are patriotic concepts that we run to when we feel an affinity for the accused. But the reality of all that is very messy.

Where else does the presumption of innocence and proof beyond a reasonable doubt matter beyond a criminal court? I am straining to think of a place outside of court where it actually matters. Consider the collateral consequence of being merely accused of a crime or of working out a case short of a pronouncement of guilt.

  • For employment purposes, a mere arrest may be sufficient for termination. This is particularly the case in employment at will states. I’ve had this discussion with many folks accused of crimes. And vast numbers of employers do not apply anything close to a beyond a reasonable doubt standard.
  • Licensing and Immigration. Many States offer deferred adjudication and dismissal opportunities such as Georgia’s First Offender Program. In the eyes of the criminal justice system, there is no conviction beyond a reasonable doubt. Indeed, the accused stands legally acquitted. Immigration will view the disposition as a conviction as will many licensing agencies for such things as real estate, insurance, law, and teaching.
  • Newspaper Articles and Candidate Evaluation. If proof beyond a reasonable doubt were the standard to run a news article, then there would not be much news being produced. Different papers have different standards for what it takes to substantiate a claim. Check out All the President’s Men to get a sense for what it takes (or once took) to run an expose in the Washington Post. Alas, voters are left to vet candidates for political office without the benefit of a criminal jury deciding whether something actually happened. And we can do that short of a jury trial on matters of character.

We make choices every day based upon truths derived other than by a criminal jury under a proof beyond a reasonable doubt standard. And many peoples lives turn upon an accusation of committing an act that would be a crime but where the claim is not tested by a jury. I’m not sure that we should give candidates a pass just because a claim hasn’t been tested by a jury. If that was the requirement, I’m not sure that we would have a way to choose. Or, in the alternative, many candidates would be getting charged with crimes for political purposes.

Do I wish the world worked differently? When I put on my criminal defense hat, the answer is yes. I have had many tearful meetings in my office with people whose lives are turned upside down by a criminal accusation who find that, after we win the court case, it is still very much upside down. That is how things work. It has been that way for a long time. Alas, there is not a Republican candidate for Senate loophole for any of it.

rubber stamp.jpgJudges seldom grant motions for new trial. I have various theories about why. And they range from being sympathetic to the judge to utter cynicism. Sometimes, there just wasn’t any harmful error. Sometimes, the judge couldn’t fathom that he made a mistake. Sometimes, it’s just too dang expensive to try the thing twice. And some judges take a Roy Moore sort of pride in being battered by them judges in Atlanta. That said, I think you should load up and give motions for new trial everything you have. There are a few good reasons to do so. 

  1. Issue spotting and Issue experimentation. I view the motion for new trial as the ultimate issue spotting exercise. I like to sit down with the trial transcript and summarize it. I then work from the summary to spot as many errors as I can and put them into the amended motion for new trial. Many will be jettisoned when it comes time to draft the appeal. But I like to build the amended motion for new trial as a menu of possible appellate issues. This process serves several purposes. You learn the record. You figure out what works and what doesn’t. You force your opponent to research everything you list out and see where he is weak. Finally, if you find yourself on the habeas witness stand, the amended motion for new trial is tangible proof that you considered all of the possible viable issues during the preliminary stages of the appeal. I suggest that you place a memo to the file setting forth why you have chosen to abandon issues when you draft the brief of appellant.
  2. It is an opportunity to put things in the record. In Georgia, you must raise ineffective assistance of counsel at your earliest possible opportunity. You can try to bootstrap issues not raised at trial through an ineffective assistance claim and call witnesses to proffer what a better trial would have looked like.
  3. If you were the client, you wouldn’t want your lawyer to coast through any stage. You should manage your client’s expectations of the hearing, but you should still give it everything you have. I went to a high school that moved up a division when I attended. We were outmatched in every game we ever played. Everybody knew that they were going to lose when they went into those games. But everybody gave it their all. Your client deserves your all, too. If you don’t like battling long odds, the probably the whole criminal appellate process isn’t for you.
  4. You just might win. It is possible that your performance at the motion for new trial hearing will scare the judge so much about a reversal or the prosecutor so much about the prospect of a new trial, that you might get a good offer or even win a new trial.

So if you have a motion for new trial coming up, come to it dressed to play. While you will likely lose, don’t treat it like the rubber stamp that it is and it might just not be a rubber stamp all the time.