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EDITORIAL: Restoring due process

The Supreme Court gets an opportunity to leash rogue prosecutors

- - Wednesday, October 16, 2013

The legal principle that a man is innocent until proved guilty is a relic among some lawyers and even certain judges, and this is how respect for the courts erodes. Through tortured abuse of plain language, the judiciary has enhanced the government's power to punish those who have never had a trial or have never been found guilty of wrongdoing. The Supreme Court on Wednesday took up a case that gives justices the opportunity to make things right.

In 2005, Kerri Kaley and her husband, Brian, of Cold Spring Harbor, N.Y., were accused of stealing expensive medical devices from hospitals and selling them on the black market. To pay the costs of defending themselves, estimated to reach $500,000, they mortgaged their home. Once the government learned that this cash was available, a seizure notice was issued and the government seized the money on the grounds that the money they used to buy the house was "traceable" to a crime. No crime had been proven.

The Kaleys might be guilty, and they might not be. Only a jury can decide that, and no jury has heard any evidence. For seven years, the Kaleys have argued that they have been denied the hearing they're entitled to before the government can take their money. The 11th Circuit U.S. Court of Appeals disagreed, saying that would amount to a "mini-trial" before the main event. "Because, as we see it," the court ruled last year, "the defendants are not entitled to try the entire case twice, once before trial and then again before a judge and jury." That sounds like a nightmare tale from Kafka, but it's too true.

Now that it's up to the Supreme Court to settle the dispute, the justices should reaffirm the presumption of innocence as central to the rule of law. The venerable concept can be found in the Old Testament and underlies the legal customs of ancient Rome and Greece. William Blackstone, the English legal commentator, famously summarized the principle this way: "It is better that ten guilty persons escape than that one innocent suffer." In defending British soldiers accused of murder in the 1770 Boston massacre, John Adams invoked the principle to explain that if the innocent are punished, lawlessness would follow. "It is immaterial to me whether I behave well or ill," said Adams, "for virtue itself is no security."

A virtuous man has no chance against a prosecutor with an ax to grind, and the authority to use it and to deny the accused the ability to mount a proper legal defense. This doesn't affect just those accused of serious felonies such as grand theft, but a pernicious abuse of the law that filters all the way down to a lowly parking ticket. It's past time to set things right.