Sen. Ted Stevens: An Innocent Man

Just the headline of this piece alone, I’ll bet, shocks a number of people.

Most people assume, or have concluded, that Sen. Ted Stevens (R-Alaska) is guilty. After all, didn’t a D.C. grand jury indict Mr. Stevens on seven felony counts? Haven’t the United States Government and its federal prosecutors concluded that Mr. Stevens failed to disclose taking more than $250,000 worth of gifts on his Senate financial disclosure forms?

Of course the media hype and page one, above-the-fold headlines about these charges lead to the public impression that Sen. Stevens must be guilty of ... well, something.

But just suppose all these media stories began with the following paragraph:

"Sen. Ted Stevens, who must be presumed to be an innocent man until he is proven guilty by the U.S. government beyond a reasonable doubt, today was indicted on charges of filing false statements in Senate financial disclosure forms. As is normal, the grand jury voted the indictment based on one-sided evidence presented by prosecutors, without Sen. Stevens or his attorneys having an opportunity to be present, to cross-examine witnesses, or to present contrary evidence that could have created a reasonable doubt regarding his guilt."

Most media people and government prosecutors would probably say such a lede would be naive and ridiculous. What they couldn’t say is that a single word of the above paragraph is untrue. Actually, the "presumption of innocence" appears nowhere in the U.S. Constitution. In 1895, the U.S. Supreme Court in Coffin v. U.S. held that such a presumption must be inferred from the Fifth, Sixth, and 14th amendments and guilt proven beyond a reasonable doubt. (Ironically, the very same conservative "strict constructionists" who insist that Roe v. Wade should be overturned because the right to privacy appears nowhere in the Constitution do not challenge inferring the "presumption of innocence" as a fundamental constitutional right.)

Here are a few examples to remember in case anyone forgets the importance of this presumption:

* Remember the three Duke lacrosse team players indicted on rape charges in the spring of 2006 by Durham County District Attorney Mike Nifong? There was Nancy Grace on CNN proclaiming guilt before trial when she said, "I’m so glad they didn’t miss a lacrosse game over a little thing like gang rape."

But then in 2007 came the findings of the North Carolina attorney general, who completely exonerated the indicted players and caused all charges to be dropped, accusing the since-retired and -disbarred Mr. Nifong of a "tragic rush to accuse."

* Remember Richard Jewell? During the 1996 Atlanta Olympics, he was publicly accused by the media in the Centennial Olympic Park bombing after having been lauded as a hero for having helped evacuate the park. The Atlanta Journal Constitution, citing anonymous law-enforcement officials, reported that he fit an FBI profile of a lone bomber and that the U.S. government was investigating him on that basis. He faced 24/7 media stakeouts in front of his home and news coverage every day that assumed his guilt. He was never even indicted.

Then, in April 2005, Eric Robert Rudolph pleaded guilty to planting the bomb and Mr. Jewell was completely exonerated. But not before his life was ruined and his heart broken long before he died, just last year, of diabetes and kidney failure at the age of 44.

* In recent days there is Steven J. Hatfill, a former scientist at the U.S. Army Research Institute of Infectious Diseases at Fort Detrick, Md. Mr. Hatfill was named through anonymous leaks from "law enforcement sources" as a prime suspect in the anthrax scare. His life, too, was virtually ruined, his reputation forever tarnished by law enforcement leaks to the media rather than by evidence heard under the rules of due process.

And then: In the last several weeks, the FBI has identified another suspect, Bruce E. Ivins, as the virtually certain source of the anthrax mailings at the same time it "settled" a civil case with Mr. Hatfill for a reported $5 million. Mr. Hatfill could be asking the same question as was once famously asked by former Republican Labor Secretary Raymond Donovan after a Bronx, N.Y., jury quickly acquitted him of multiple felony charges.

Mr. Donovan had suffered years of media innuendo fed largely by partisan Democrats making what turned out to be false charges of Mafia ties and corruption. When a reporter congratulated him after his quick acquittal on all charges, Mr. Donovan answered:

"Thank you: Now where do I go to get my reputation back?"

So whatever happens to Sen. Stevens, we all should learn and repeat the following Latin words:

Ei incumbit probatio qui dicit, non qui egat. ("The burden of proof rests on he who asserts, not he who denies.")

OK, OK — if you can’t remember those Latin words, then at least remember Mr. Jewell, the Duke lacrosse team and Mr. Hatfill before you convict Mr. Stevens in your mind based on a grand jury indicting, or the law enforcement authorities accusing.

Give the man his day in court.

That’s the least we can do in this presumption of guilt culture in which we live — and with which we are all complicit.


Lanny J. Davis is a Washington lawyer and a political analyst for Fox News. From 1996 to 1998, he served as special counsel to President Clinton. From 2005 to 2006, he served on President Bush's five-member Privacy and Civil Liberties Oversight Board.

This piece appeared in Mr. Davis's regular weekly column for The Washington Times, "Purple Nation," and was published Monday, Aug. 18, 2004.