The Blood Draw and the Burden of Proof

How a phlebotomist’s casual question cut to the heart of why the presumption of innocence still matters

Every system takes its sample—some from the arm, some from the soul

I didn’t have an appointment, so I waited. As a criminal defense lawyer in private practice, it’s difficult for me to know when I’m going to have enough time to spend a morning doing this, just for a blood draw.

Nearly two hours in a lab full of people coughing into their elbows, checking their watches, and trying not to eavesdrop on each other’s phone calls. The Wi-Fi worked fine, so I read a few Substacks, caught up on the Wall Street Journal, and watched the market slide downhill for the second time this week.

By the time I left, I was lighter by a few vials of blood and bled about five hundred dollars in market losses. The stocks I’d bought earlier in the week — “good prices,” because of the first slide — had decided on “even better prices” while I sat there.

When the next-available vampire finally called my name, she smiled the way people do when they mean well. She asked what I did for a living. I braced myself and told her I’m a criminal defense lawyer.

She hesitated for a moment, then said, “Oh. I could never defend criminals.”

Bingo. Standard expected response. At least she didn’t recoil from me as if I were a few dozen cloves of garlic!

I knew she didn’t mean it as an insult. But she said what most people believe: that defending the accused is the same thing as defending the guilty.

There’s a funny kind of faith that keeps both markets and justice running. Investors bet that downturns are temporary, because most of them have been. Jurors and bystanders bet that accusations are reliable, though many aren’t. One belief is grounded in pattern; the other in fear. Both spare us the discomfort of doubt.

It’s not that my vampire was wrong to believe in guilt; she was wrong to believe it’s enough.

⚖️ This is where I always wonder what readers think: is “innocent until proven guilty” still believable to you, or has the phrase lost its pulse?

Because once belief replaces proof, you don’t need a trial — just a transaction. Which explains the number of times I’ve had jurors ask why we’re bothering with the one they’re trying to get out of.

Even justice looks different when you put it under the microscope

Beyond a Reasonable Accusation

A few years ago, I wrote about how the presumption of innocence has quietly withered into something performative — a ceremonial phrase the courts recite, not a principle they honor. Back then, I put it this way:

Our legal system no longer seriously endorses a presumption of innocence, and people have been taught that belief in a presumption of innocence is almost laughable.

— Rick Horowitz, The Presumption of Guilt (March 4, 2020)

That hasn’t changed. If anything, it’s worse.

Every day I watch people nod along to accusations as if they were verdicts. They trust the narrative the way investors trust a ticker symbol. Once the price moves — or the story breaks — they assume the movement means something. Rarely do they ask whether it was rumor, manipulation, or just noise.

And just as “buy low, sell high” sounds like wisdom until you’ve tried it, “believe victims” sounds righteous until you’ve seen how easily it becomes “believe accusations.” The slogans make us feel moral. The results make us less human.

Trials were never about efficiency. They were humanity’s admission that truth is hard — that people lie, that memory fails, and that certainty is dangerous when mixed with power. But efficiency has replaced fairness, and faith has replaced doubt.

The presumption of innocence isn’t a technicality. It’s the bloodstream of the system. Lose it, and the whole body of law starts clotting.

If no one wanted to fight for the person accused of a crime, then it’s likely that innocent people would suffer. And not just “innocent people accused of crimes”, but also innocent people who were targets of criminally-minded people.

Huh?

As I said a long time ago,

You could ask, “What about the victims? Don’t they matter?” The answer, of course, is yes. And you may find this hard to believe, but I do what I do for the victims—real, or not—also. Too often, individuals become the target of allegations for wrong reasons. An officer jumps to conclusions. Sometimes an accused person is the wrong person; i.e., not the one who actually committed the crime. Other times, an accused person is falsely accused, which is not exactly the same thing. In the first case, we end up with two victims: the original victim, and the accused person who, wrongly accused, thereby becomes a victim. In the second case, the whole idea of who is victimizing who gets turned on its head.

— Rick Horowitz, On Defending Real People; or Not Losing Sight of the Trees for the Forest (May 29, 2017)

This is why we (should) require proof beyond a reasonable doubt in criminal cases, rather than just find people guilty based on a reasonable accusation.

People Lie, and People Believe Them

Scott Greenfield once wrote,

People lie. Men are people. Women are people. Blacks are people. Whites are people. We’re all people, no matter what combination of intersectionality you raise. And people lie.

— Scott Greenfield, People Lie (October 15, 2022)

He’s right. It isn’t cynicism; it’s experience. After twenty years of watching testimony unravel, you stop assuming that every story told with tears in its eyes is true. People lie to get revenge, to get attention, to get custody, or just to get even. Sometimes they lie because they’ve convinced themselves the lie is justice.

When the vampire — I’m sorry, it’s just more fun to say that than “phlebotomoist”, especially just after Halloween — told me she could never defend “criminals,” I said, “Me, either. I defend people. People who are accused of crimes. My job is to make sure their rights are defended; they get a fair trial; and, if the prosecution is able to prove the case, then so be it.” I explained how people — not just accused people, but people who accuse people — lie.

I’ve seen cases where a couple is duking it out in Family Law court, fighting for custody of the kids. Suddenly, mom says, “He’s been touching my girls; he’s touching my boys.”

And she’s not talking about pats on the head, or “attaboy” thumps on the back.

I’ve seen cases where women fabricated domestic violence charges because they wanted to be rid of their husbands. Divorce, I guess, wasn’t good enough. At least not if what you want is to be rid of the husband and keep all the property.

And I’ve seen people go to prison for 10, 20 years, or even life, based on those lies.

But the thought stayed with me while I watched my portfolio bleed red. People lie, numbers lie, and both make a kind of sense when you need to believe in order to function.

That’s why the presumption of innocence matters. It’s the legal system’s way of saying belief isn’t enough. You have to prove it. You have to bring evidence that stands up to the kind of doubt honest people should have.

I said, “If you were falsely accused of a crime, wouldn’t you want someone like me defending you?” She didn’t think she would be falsely accused. But I told her about the cases I’ve seen. I asked her, “What’s the first thought in your head if someone says, ‘John has been molesting my 5-year-old daughter!’” She agreed that she would instantly hate John.

But what if the accusation is all there is? What if John never came close to anyone’s daughter? When everyone takes the stance the woman draining my lifeblood away takes, what then?

We’ve gotten comfortable treating accusation as proof because it’s faster. Our hidden brain loves heuristics and jumping to conclusions. Believing is easier than thinking. But once we believe, everything else starts to look like confirmation.

The presumption of innocence isn’t a technical rule. It’s the bloodstream of justice, circulating doubt so the system doesn’t die of certainty.

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By the time I walked out of the lab, the market slide had slowed and my bleeding had stopped. My losses were only numbers on a screen. But I was reminded that the real damage, as always, is what happens when belief hardens into conviction long before the evidence arrives.

The Illusion of Safety

What my sweet-hearted (I think she really is) vampire really meant, of course, was that she couldn’t live with the uncertainty. To defend someone accused of a crime means sitting in that tension between what’s alleged and what’s true, between what people think they know and what can actually be proved. Most people don’t want to live there.

That’s why we build systems, rituals, and slogans that give the illusion of certainty. It’s why when dealing with things like the stock market and people accused of crimes, our hidden brain handles the heavier load for us. We tell ourselves that good people don’t get accused. That justice sorts itself out. That juries always know. It’s the same illusion that keeps investors convinced the market always recovers, even when history says otherwise.

Certainty makes people feel safe. Doubt makes them feel complicit.

But defense lawyers live in doubt. We have to. It’s where all the truth lives — in that uncomfortable space where you can’t quite be sure, but you also can’t quite let go. And, anyway, it doesn’t matter. Because our job — I prefer to think of it as a calling — is to defend people regardless of what we think about their guilt, non-guilt, or them in general.

People sometimes think that makes us cynical. I think it makes us honest.

The Fear of Contamination

There’s also something else at work when people say they couldn’t do what I do. It’s the false fear that defending someone accused of evil will somehow make you part of it. As if guilt were contagious, and the defense attorney is the carrier.

It’s an old superstition. John Adams — one of the so-called “Founding Fathers” who would later become the second President of the United States — was called a traitor for defending the British soldiers in the Boston Massacre. Centuries later, lawyers who represented Guantánamo detainees were accused of “aiding the enemy.” And when Judy Clarke defended Dzhokhar Tsarnaev, the Boston Marathon bomber, talk-radio callers called her “evil,” “a traitor,” even “as bad as he is.” The papers didn’t say that — the public did. And in fact,

As a result of the public uproar over the [Susan] Smith sentencing, South Carolina passed a law barring out-of-state counsel in its capital cases.

— Beau Friedlander, The Legendary Lawyer Who Will Defend Loughner: Judy Clarke (January 12, 2011)

Different eras, same reflex: stand too close to the accused, and the stain becomes yours.

Negative impacts on family members were also reported, with those close to the wrongfully accused also experiencing stigma and psychological difficulties. For those who were wrongfully imprisoned, traumatic experiences during their incarceration exacerbated the psychological difficulties they faced.

— Samantha K. Brooks & Neil Greenberg, Psychological Impact of Being Wrongfully Accused of Criminal Offences: A Systematic Literature Review, 61 Med. Sci. & L. 44 (2021)

But guilt doesn’t work that way. It doesn’t rub off on contact. What does spread, though, is indifference — the quiet comfort of thinking that people accused of crimes — “criminals” — deserve whatever happens to them, because they are presumed guilty.

Just because they were accused.

I’ve seen it in judges who deny bail before reading a report, in prosecutors who suppress evidence because “he’s probably guilty anyway,” and in jurors who walk into court already sure of the verdict. Each one convinced they’re on the side of righteousness, and each one chipping away at the foundation that makes a fair trial possible.

If guilt can’t contaminate you, certainty can.

When the System Becomes a Machine

The woman with the needle wasn’t trying to insult me. She was reflecting what the system itself teaches her every day. We’ve mechanized judgment. The criminal courts run on volume, not virtue.

It’s conveyor-belt justice — cases in, convictions out. The faster the process, the better it’s praised. Everyone gets to feel productive.

That’s what I mean when I say belief has replaced proof. Proof takes time. Proof takes care. Proof requires that you see the accused as a person, not a data point.

A system that runs on speed can’t afford that. So it runs on faith instead. Faith in police reports. Faith in prosecutors. Faith that the accused “must have done something.”

The legal principle “innocent until proven guilty” is ingrained in society. It’s echoed in news coverage, TV shows, movies, social media and everyday conversations. But in reality, when criminal trials are publicized, people have already formed their opinions about guilt and innocence. Many are quick to automatically assume defendants are guilty and root for the criminal justice system to give them to get what they “deserve.”

— Ilya Halecky, Guilty Until Proven Innocent: Why People Root for the Criminal Justice System, Interrogating Just. (Aug. 8, 2022)

It’s easier that way. Until the day the machine decides it’s your turn on the belt.

The Emotional Cost of Doubt

I don’t blame my sweet vampire for wanting clarity. There are days I’d like some myself. Trials are messy. Juries unpredictable. Evidence disappears. Memories distort. Even when you win, it can feel like a loss — a reminder that the truth barely limped across the finish line.

I once had a case that dragged on for nearly five years while my client sat in custody. Every delay cut another slice out of his life — first COVID, then continuances, then the slow machinery of a system that treats postponement as policy. He missed birthdays, graduations, a good part of his children’s childhoods.

I believed he was innocent. I still do. But belief doesn’t stop the clock, and it doesn’t outweigh the risk of dying in prison. The case ended, finally, not with the exoneration he deserved but with a compromise that kept him alive and gave him a future. It got him out of custody and avoided the potential life sentence if we’d lost the case. That’s what passes for victory sometimes: you salvage what’s left of a life instead of proving what’s right.

But that’s the cost of living in doubt: it’s exhausting. You start to envy the certainty of the righteous. You start to understand why people would rather believe than think.

And yet, in that very exhaustion is where justice lives. Not in the comfort of conviction, but in the unease of doubt.

Doubt is not weakness. Doubt is conscience.

What the Vampire Taught Me

So yes, I lost a little blood yesterday morning, and a little more in the market. But what I really lost — or maybe gained — was another reminder of how fragile our faith in fairness has become.

We live in a world that runs on accusation. Social media runs on it. News cycles run on it. Even elections now run on it. Somewhere along the line, “innocent unless proven guilty” stopped being a moral statement and became a marketing slogan.

And like all slogans, it wears out fast.

When I told her I defend people, not criminals, she smiled politely, the way people do when they think you’re splitting hairs. But the difference matters.

Because when words lose their meaning, rights lose their footing.

When “accused” becomes “criminal,” the rest is just procedure.

And when that happens, it’s not just the accused who bleed. It’s the idea of justice itself.

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One question: What belief did you hold long after the proof arrived — and how did it change you?