I have a confession to make. I have come to the conclusion that the notion that an accused citizen is innocent until proven guilty is a concept in name only, and is not something people really, truly believe. I fear it has gone the way of proverbs like “an apple a day keeps the doctor away” and “the way to a man’s heart is through his stomach” old-fashioned adages not accepted as true in the modern world.
As you all know, the notion of innocent until proven guilty is, of course, explicitly in the United States Constitution, right? Not so much. These words do not, in fact, appear in the Constitution, the Bill of Rights or any other amendment. It is generally held that this crucial principle of law flows from the 4th, 5th, and 14th amendments. Indeed, it makes its first appearance in an 1895 Supreme Court opinion Coffin v. United States: “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law….”
So it has been a fundamental tenant of law since at least 1895. But today, still? With the proliferation of instantaneous information and a 24-hour news cycle, I cannot shake the feeling that it is a concept that society no longer embraces. Be honest … how often have you picked up a newspaper (or gone to a virtual paper on the internet because newspapers have pretty much gone the way of the Edsel) and seen an article about an alleged but unproven crime and asked yourself: “Why would he do that?”; “How could she be so stupid?”; “Didn’t he think he would get caught?”. I think … no, I know it happens all the time. I, myself, a criminal defense attorney who should have innocent until proven guilty tattooed on my forehead, routinely catch myself doing it.
In the wake of recent events, I was disheartened to know that it was not just me, so many of my colleagues and neighbors have the same reaction. The anecdotal evidence of this can be demonstrated in the starkest of ways. On June 14, 2016, the United States Attorney’s Office for the Southern District of New York and the Securities and Exchange Commission charged Visium Asset Management portfolio manager Sanjay Valvani with insider trading. Days after the government announced the charges, Mr. Valvani apparently and tragically took his own life. In the wake of this devastating event, you cannot imagine how many times I heard, from defense attorneys and real people alike: “I guess that means he did it.” Some will say this is the logical conclusion; that causes me great sadness and an equal amount of concern.
The notion of innocent until proven guilty means that the government has to amass evidence and demonstrate to a jury of 12, before a judge enforcing the rules of law, that a citizen has committed a crime. How can the presumption of innocence be applied in a court of law but ignored in the court of public opinion? I am well aware that the court of public opinion is different than a court of law, but a charged citizen should get the benefit of the doubt in both (especially because those who make of the court of public opinion also inevitably make up the jury of 12).
Regardless of the presumption of innocence, the default position of virtually everyone I spoke to was that Mr. Valvani was guilty and that is why he took his life. What an unbelievably sad thought process. Why is it, if innocent until proven guilty is considered to be an inalienable right that we all demand for ourselves, that those same people did not choose to believe that Mr. Valvani is innocent and was, perhaps, driven to his actions due to the despair over having his greatest business accomplishment torn apart by the government, having friends and colleagues turn on him and provide (what is still untested and in many cases, no doubt, self-serving) information about the trades in question and seeing the dismantling of his reputation and livelihood.
If we, as a society, truly believe that a person is innocent until the government proves beyond a reasonable doubt in a court of law that a person is, in fact, guilty, “I guess that means he did it” would be our last thought, not our first. Mr. Valvani’s lawyer, Barry Berke stated it in a way that resonates with me and hopefully with many others well-beyond this terrible tragedy: “We hope for the sake of [Mr. Valvani’s] family and his memory that it will not be forgotten that the charges against him were only unproven accusations and he had always maintained his innocence.”
Innocent until proven guilty means that anyone charged with a crime should get the benefit of the doubt. That benefit should start the moment we see, hear, or read about accusations against a person and it should not end until we see, hear or read that a jury of the defendants’ peers convicted him/her after a full and fair trial. If we cannot cling tightly to this fundamental, bedrock principle of law, then innocent until proven guilty really has gone the way of antiquated notions like: “Sticks and stones may break my bones but names will never hurt me.”
Gregory Morvillo is a partner in the New York office of Morvillo LLP. He specializes in insider trading and securities fraud cases.
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