Stephen L. Carter
New Haven, Conn.: Suddenly, the news media seem not so sure about who attacked the Boston Marathon.
The Wall Street Journal published a report this week on whether “alleged Boston bomber Tamerlan Tsarnaev met with a suspected militant during his six-month visit to Russia in 2012.” In the Daily Beast, we have an excellent dispatch from a radical Dagestan mosque visited by “alleged marathon bomber Tamerlan Tsarnaev.” Not to be outdone, the New York Times, in a coinage that was immediately copied around the Web, referred to Tamerlan Tsarnaev as “the suspect who died last week.”
The words of legalistic caution are everywhere: “alleged,” “suspected” and the rest. That was fast. Because, let’s remember, these stories aren’t about younger brother Dzhokhar, who is facing criminal charges. They’re about Tamerlan, who is dead. This trend is at best peculiar — to say nothing of confusing and unnecessary.
Ordinarily, journalists identify those who are arrested as “suspects,” their crimes “alleged,” because no trial has taken place. The rules stem from a desire to protect the presumption of innocence — not to taint the jury pool, for instance. Thus the usual caution can be considered a way of respecting the autonomy of the accused, who might yet be acquitted.
But Tamerlan can’t be acquitted. He’s dead.
So why the hedging? If we take the media at their meaning, the purpose must be to warn us readers that we would be wrong to conclude, on the evidence now available, that Tamerlan Tsarnaev bombed the Boston Marathon last week.
If this is the message, then the message is wrong. According to the Oxford English Dictionary, the adjective “alleged” means “claimed or asserted without proof, or pending proof,” and derives most probably from an Old French word meaning “to clear of an accusation.” Now, aside from the fact that the OED is inexact — what we demand is sufficient proof, evidence enough to overcome whatever may be the applicable standard of doubt — most of us aren’t going to examine much more proof of Tamerlan Tsarnaev’s guilt than we’ve seen already.
It’s easy to misunderstand the presumption of innocence. The rule comes from the common law, and reflects not an ethical guidepost for every aspect of life, but a way of describing the burden of the moving party at a trial. In criminal trials the presumption is of particular importance, because the state is proposing to take away a person’s liberty — perhaps even his life.
James Bradley Thayer, in his 1898 treatise on the law of evidence, presented what has become the modern formulation of the presumption: first, “that the accused stands innocent until he is proved guilty; and, second, that this proof of guilt must displace all reasonable doubt.”
But nobody is proposing to take away Tamerlan Tsarnaev’s liberty or life. Those are already gone. Because he isn’t facing trial, the presumption of innocence — which is a rule of evidence for the courtroom — doesn’t apply. Whatever conclusions we reach, we violate no right of his. If you don’t agree, ask yourself whether Tamerlan Tsarnaev’s status as mere “suspect” has an expiration date — or whether, because we can never try him, it lasts forever. (John Wilkes Booth never had a trial, either.)
This leads us to an important point: It makes perfect sense to refer to younger brother Dzhokhar as a suspect, because he does face criminal charges, and the government does intend to take his liberty away. But even in Dzhokhar’s case, the presumption of innocence is really only a rule of courtroom evidence.
There is, of course, a richer significance that we might attach to the presumption of evidence. Perhaps the message isn’t that we should preserve the question of guilt for trial, but rather that we should never rush to judgment on anyone, about anything.
This lovely sentiment was captured in the 1971 baccalaureate address of Yale University President Kingman Brewster, an epigram that is engraved on his tombstone: “The presumption of innocence is not just a legal concept. In commonplace terms it rests on that generosity of spirit which assumes the best, not the worst of the stranger.”
Assuming the best of the stranger: not a bad way to build a society. But, of course, the media willy-nilly present conclusory assertions about everyone else — in politics, say, or in business. It’s perfectly plain that we don’t assume the best of the stranger. Instead we indulge a habit of convicting in the court of public opinion on very modest proof.
Our politicians may understand this point better than our reporters. Consider the following circumlocution from ABC News: “In passionate remarks at a memorial service for slain Massachusetts Institute of Technology police officer Sean Collier, Vice President Joe Biden called the Boston Marathon bomber suspects ‘knock-off jihadis.’?” See the editing trick? Biden’s clever wordplay assumes that the audience shares his knowledge of who did what; it is the reporter who cautiously added that the vice president was referring to the “suspects.”
And journalists themselves don’t fully accept the need to presume innocence. Thus even as they insist that Tamerlan is only a “suspect” in the bombing, they tell us flatly, as if it’s all fact, that he was kicked out of his mosque, that he told his mother he was willing to die for Islam, and that he became increasingly radicalized over the past few years. Little of this hearsay would be admissible in a court of law; but on these predicate facts there is no hedging.
Maybe that’s just as well. There is such a thing as too much caution. Thayer, in his 1898 treatise, issued a prescient warning: “The presumption of innocence has been overdone in our hysterical American fashion of defending accused persons.” His allusion was to the opinion of a prominent lawyer of the day with whom he disagreed. But his words would seem applicable today to the verbal gymnastics of the news media.
What I would say is this: Calm down. Outside the courtroom, we already have sufficient evidence on which to make up our minds about the guilt of Tamerlan Tsarnaev. He isn’t a suspect. He’s dead. And he did it.
Carter is a Bloomberg View columnist and a professor of law at Yale University. He is the author of The Violence of Peace: America’s Wars in the Age of Obama, and the novel w. He can be emailed at firstname.lastname@example.org or @StepCarter on Twitter.