Bad Guys: When the Presumption of Innocence Becomes a Joke

So you’ve been accused of a crime.

Maybe you’re completely innocent. Or guilty as sin. Either way, buckle up, because the well-worn wheels are now in motion. This ride will strip you of your humanity in a thousand ways. Your reputation will suffer. You will lose things: jobs, apartments, relationships. Maybe even your children.

In the world of public opinion, the cloak of suspicion will feel heavy on your back.

But things are different in the courtroom. Or at least, they’re supposed to be. Here, everyone is presumed innocent.

The presumption of innocence isn’t an empty platitude. It’s an absolute right enshrined in the U.S. Constitution. Without it, justice crumbles.

Nearly every miscarriage of justice can be traced by to violating a person’s presumption of innocence. It’s the single principle separating us from kangaroo courts, lynchings, and wrongful convictions.

So when a public sign in sheet in a San Francisco courtroom listed defendants as “bad guys,” my fellow public defenders and I were alarmed. When the judge laughed off the incident as a joke, we got angry.

If you care about justice, you should be angry too.

Department 11 in San Francisco Superior Court is constantly bustling with the work of criminal justice administration. Prosecutors, defense attorneys, clerks and court reporters all doing their work in an effort to clear the judge’s calendar. That’s how it was on Aug. 8, when a paper on the court clerk’s desk caught Deputy Public Defender Ilona Solomon’s eye.

It was a witness sign-in sheet, something distributed daily by the San Francisco District Attorney’s office to help prosecutors keep track of people — both police officers and ordinary citizens — who are scheduled to testify in hearings.

Only where it should have said “Defendant’s Name,” someone had written “Bad Guy.” The paper had circulated in the gallery, viewed by people already afraid the system won’t give them, or those they love, a fair shake. It was handled by witnesses whose testimony would be influenced by seeing official confirmation that the defendant is a “bad guy.”

Ilona voiced her concern to the clerk, who destroyed the document. But not before Ilona snapped a photo.

A short time later, I brought the issue to the judge’s attention.

The judge began to to survey the court officers. Did they court clerk circulate the list? No. What about the assistant district attorney on the case? No, he insisted — he had been in chambers with the judge. The ADA’s intern? After some hesitation, she denied it too. The court reporter? No.

Then the judge shrugged off the issue as a joke. Furthermore, isn’t “bad guy” essentially the same thing as defendant?

Well, no, Judge. Bad guy is most certainly not the same as defendant. And there’s an important reason for the distinction, explained another colleague in Dept. 11 that day, Deputy Public Defender Mark Jacobs.

And so it went, on and on. We public defenders asked for the judge to identify the mystery author. We urged him to further question the prosecutor and his intern. The prosecutor protested that if that’s what we wanted, we ought to get some additional defense attorneys to represent them during questioning.

The judge agreed with the prosecutor. There would be no questions without attorneys present. We asked for the judge to admonish them.

Court was adjourned. During a break, a citizen from the courtroom gallery approached me. He was there for a family member. He read the words “bad guys” as the sheet passed. He told me he saw the intern from the DA’s office circulating the paper.

When we reconvened, he told the judge. And I asked the intern if it was true. The ADA didn’t let her answer, and quickly called his supervisor. As the prosecutor and I argued before the judge, the intern left the courtroom. When I asked her about it later in the hallway, she told me she had been instructed not to answer my questions.

The judge, annoyed, refused to entertain the matter further.

Interning is about learning. I don’t fault a young law student for making a mistake, if indeed she was the one who circulated the sheet. After all, everything in our culture tells her that criminal defendants are indeed “bad guys.”

But the absolute lack of reflection and accountability on the part of the ADA and the judge — -men with many years in the justice system who regularly hold people’s fates and freedoms in their hands — is troubling.

Not only does it mock the soul of our justice system — that we are all innocent until proven guilty — it ignores systemic problems at the root of crime. As long as we can demonize criminal defendants, why should we bother improving our mental health system, offering substance abuse treatment, or addressing homelessness?

Yes, predators are real. But they are rare. Instead, most of our clients are prey. In a typical day, public defenders across the U.S. represent thousands of the following Bad Guys: Veterans and other trauma survivors whose psychiatric needs have been criminalized instead of met. Beloved sons and daughters so wracked by addiction they cannot find their way back. People so poor they will break into cars to sleep.

It is easy to dismiss those who are already powerless, particularly if you have the full weight of the State behind you. But labeling all criminal defendants as bad guys attacks the credibility of a system that promises to be fair.

You can read this article – which is significantly enhanced by visual transcripts of the exchanges – in its original publishing HERE