Two points. First, at bottom, the presumption of innocence is merely a trial mechanism which fixes the burden of proof (imposing it on the prosecution). It is not a requirement that we all view the accused as innocent.

There are contexts in which, as a society, we want the unconvicted defendant to be presumed guilty. It is unethical, for example, for prosecutors to seek indictments unless they believe the government has a sufficient case and is likely to prevail at trial – i.e., unless they presume that the accused is guilty. (Would anyone really want to live in a place where that wasn’t true?) Also, defendants who are accused of certain drug and violent crimes are presumptively incarcerated prior to trial for the protection of the community. Such detainees frequently contend that this denies them the presumption of innocence, but this is nonsense. They get that presumption in the one and only place they are entitled to it: the four corners of the criminal trial. Similarly, when judges weigh whether the government’s evidence should be admitted at trial, they do not presume the defendant innocent. Instead, evidence that tends to suggest guilt is allowed even though the defendant obviously has not yet been found guilty at that point. It is only the trial jury that owes a defendant the presumption of innocence; not the rest of us.

Second, what I take to be Jonah’s main point is worth repeating, often, to counter the prevalence in the ubiquitous legal talking head commentary of what I call the game theory of trials. This is the philosophy holding that there simply must be two sides to every story and that the defendant is entitled to a defense – whether he actually has one or not. In point of fact, the system is designed to allow a defendant wide latitude to present whatever defense he truly has. But we are not required to give him one just to make things ostensibly fair and interesting.

If the New England Patriots play the little sisters of the poor in a football game, the final score should be about 5000 to nothing, and it should look every bit like the rout one would expect. Same for an overwhelmingly guilty defendant. Yes, in a close case, the system prefers to set a likely guilty person free than risk the conviction of an innocent. Hence, the requirement of proof beyond a reasonable doubt. But its point is still to protect the innocent, not spare the guilty. A guilty person going free is not justice, even if it is procedurally proper.