The presumption of innocence, fair trials, and defendants who won't/can't argue "they didn't do it"

Over at the US News & World Report blog, Leslie Marshall asks "Can Mohamed Osman Mohamud Get a Fair Trial?":

My problem with this is not the arrest. My problem with this is not the innocence or guilt of Mohamed. My problem with this is that Mohamed Osman Mohamud has been tried in the court of public opinion before a jury has been selected. And I have to ask you America, can this man get a fair trial? Truly?

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So what bothers me is where is Ei incumbit probation qui dicit, non qui negat? That’s Latin for the principle that one is considered innocent until proven guilty? It’s my legal right, it’s yours and like it or not, it’s Mohamed Osman Mohamud’s.

But I fear when we have allegations from law enforcement, combined with press releases, the word terrorist and a person who is Muslim with a Muslim name, that all goes out the window.

This is something I've started thinking about in connection with this case and that of the Fort Hood shooter, but it would be generalizable to other crimes that share the same characteristic of having a defense that does not challenge the fact that the defendant is the person who committed the act in question; rather the defense relates to the culpability of the defendant.

In other words, in such cases, the defendant is, as usual, innocent until proven guilty.  But the innocence really relates to the legal consequences of the actions, as opposed to uncertainty of whether the actions were committed by this defendant.  This stands in contrast to more typical cases, where the identity of the perpetrator is in doubt.

For example, in the Fort Hood shooter case, the police did not identify Nidal Malik Hasan through forensic analysis of crime scene evidence, circumstantial evidence, or the like.  They identified him because he had finally been shot after shooting dozens of soldiers at Fort Hood.  I suppose it's vaguely possible that there was some kind of massive conspiracy through which someone killed 13 people and wounded 30+ others, shot Hasan as well, and framed him, but if you think someone can do all that without having it leak, you're probably not really going to be trusting the justice system anyway.

How do we go about discussing Hasan's case while respecting his presumption of innocence?  On the one hand, it seems safest to call him the "alleged Fort Hood shooter" or the "accused Fort Hood shooter."  But on the other hand, isn't that a bit ridiculous?  It would be wrong to call him a multiple murderer right now, since he hasn't been convicted of anything, and murder means it's not just a killing, but an unlawful one with the requisite mental state (i.e., intent to kill).  Hasan's lawyer earlier indicated that he might raise an insanity defense, which if successful would negate the mental state for culpability.

So, I think it's reasonable to call Hasan the "Fort Hood shooter" without making it "accused" or "alleged," so long as it's not an expression of legal guilt.  Unless he gets convicted, in which case, he's the Fort Hood mass murderer.

Back to Leslie Marshall's question, can Mohamud get a fair trial?

Seeing that so many letters being published by the Portland Tribune and the Oregonian (here and here) express considerable skepticism toward the FBI and the sting operation, despite having heard only the government's side of the story, I'd venture a guess that the answer is "yes, he can get a fair trial."  This is especially true if, as it appears will be the case, that Mohamud's defense won't challenge the assertion that on Nov. 26, 2010, he pressed the button the cellphone in an attempt to detonate what he thought was a bomb.  Instead, the defense will challenge whether the government made him do it.  It sounds like a number of Portlanders are open to that argument.

Comments

[opit]

This is way late out the gate ... but I got the impression at the time that the Malik Hasan case might well be a frame up to stimulate the Islamofascist meme. The reason being in that case there were original reports of 2 or 3 shooters....and the site of embarkation to Afghanistan tended to have such incidents with some regularity.

[Apple iPhone 5]

You could argue in a Clintonesque way that the use of the conditional "would" denotes a hypothetical situation, which does support his contention that he was speaking as if he were not the USC coach.