Customer Reviews

Guilty: The Collapse of Criminal Justice

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This book pulls no punches and contains no fancy words. Harold Rothwax tells it like it is....

When the criminal justice system fails, and the obviously and often admittedly guilty go free to wreak more havoc on innocent citizens, we should feel outraged... and I'd guess that we do, when we hear about it as we do infrequently. But the sympathy extended to the perpetrators of violent crimes is both misplaced and as wrong as the crimes themselves. Rothwax, a judge, sees these decisions made routinely, as he deals with their aftermath. He is outraged. He is beyond outraged.

He makes a compelling case for a modification in our criminal justice system. Criminal juries shouldn't need 100% agreement to deliver a verdict, which they already don't need in civil cases. One lone kook shouldn't hold up what's obvious to a clear majority. He suggests forgetting Miranda... if someone is screaming confessions, it's a CONFESSION. What a lot of effort, time, and money those confessions save! Getting criminals off on technicalities -- especially technicalities that lawyers search for painstakingly with the sole goal of getting their clients off -- is a perverse and morally reprehensible function of the court, and it should be inadmissable when the parties involved behaved with logic and discretion to the satisfaction of the court.

The cases that Rothwax cites, cases in which innocent adults and children suffered at the hands of a meticulous and ill-advised court, will break your heart and make you scream for justice.

For this is a book about justice. It is not a book about law. Unfortunately, the two diverge more than the American public would like to acknowledge.

While almost all would agree that the American judicial system has its flaws, Judge Harold Rothwax proposes some of the most drastic changes to the system I have encountered. If Judge Rothwax's experiences in the New York City courts have transformed him from a card-carrying ACLU member to a staunch advocate for the revocation of Miranda and search-and-seizure laws, then I am in fear of what truly occurs in our courtrooms.

Judge Rothwax provides many controversial and honestly expressed opinions about how our legal system is currently operating. His book is outspoken, candid, spare, and understandable. I think we will see more people adopt his ideas as time goes by, but it will take time. A very worthwhile reading experience.

Judge Rothwax has done an excellent work of telling us the truth in an easy to read format. The text reads well and was worth the effort to read it non-stop in four hours. If you had doubts about the current judical system this should scare the hell out of you to hear from the bench how criminals are often the winners in our judical system while law abiding citizens are the victims.

I wish Judge Rothwax would have given some of his personal history on how a former legal aid lawyer and card carring member of the ACLU changed into what most would call a hard nosed conservative. This missing part in no way detracts from the book.

An absolute must buy!!!!

Judge Rothwax is committed to improving the criminal justice system at almost any cost. While his insights are thought-provoking his review of the problems tend to lack analysis of possible solutions. Albeit, there are no easy answers to what ails the justice system -- particularly in New York -- but it is difficult to accept his harsh criticisms of the system without a more thorough analysis. Overall this is an excellent book for people who have a sense of what courtroom life is about (and not from Court TV), are interested in the issues of social justice and the implications of the basic principal of "innocent until proven guilty". Judge Rothwax does an excellent job of stimulating this debate.

It is dishonest to claim that criminal justice has collapsed. This one-sided book should not be read by people who do not understand Rothwax's perverse criticisms. He is arguing against the Constitution and the Bill or Rights (p.234), and for features of the European Civil Law system (which derive from royal rule). There is no index in this book so you can't reference the many topics. In Chapter 11 Rothwax suggests "basic changes" to our Common Law system that subverts it. He says the Miranda ruling is unnecessary because of video tape. But isn't that the result of the Miranda decision? Speedy trials are required by the Bill of Rights. No "right to an attorney"? Shame on you, Rothwax! Logically and legally people are innocent until proven guilty; you can't prove innocence. Rothwax would change that to require a defendant to testify (p.237). Allow judges a "more active role" (p.238)? The experience of America has been to restrict judges, and make them elected, not chosen by political bosses. The reversals on "technical" grounds usually means some law was violated in the trial. Any trial which disregards law is not justice, which involves applying the laws. If the justice system is a search for the truth, why does Rothwax object to that? Something is wrong here. Maybe he needs a new career?

Rothwax claims our justice system was "relatively simple" in the past (p.24). F. Lee Bailey can explain about Dr. Sam Sheppard. The right to a speedy trial is to prevent mischief by the clique running the government (p.25). The "reliability of an identification" is to prevent wrongful conviction from unreliable eyewitnesses (p.26). Rothwax complains about suppressing evidence but admits it is impossible to establish clear rules to govern all future cases (p.49). Rothwax explains the Miranda decision as evolving from earlier cases (pp.76-77). Miranda requires objective facts, not opinions (p.82). Rothwax admits it was used against "unlawful police conduct" (p.86). The examples on pages 112-119 suggest political and personality conflicts in the judicial system.

Chapter 6 doesn't tell you that the Canon of Ethics requires a lawyer to use all lawful means to defend a client. This system of advocates developed from Trial by Combat in Medieval times. Plea bargaining greases the wheels of justice and provides more production of guilty defendants at a lower cost to the public. Rothwax doesn't mention the European Civil Law system here (Chapter 7). In Chapter 8 Rothwax argues for reciprocal discovery but admits the Fifth Amendment forbids this (p.179)! Do not be fooled by Rothwax's "Sealed Envelope Proposal" (p.184). It violates the Common Law (innocent until proven guilty). In Chapter 9 Rothwax again attacks the Fifth Amendment to force a defendant to testify (p.189)! Can an innocent person explain something they didn't do (p.191)? Ordinary people can't match a skilled lawyer. Rothwax's disdain for the Bill of Rights suggests philosophical subversion (p.196).

In Chapter 10 Rothwax criticizes the jury system (p.200). His opinion about a "too knowledgeable" juror can be another name for bias (pp.203-204). Or someone likely to be trapped in minor details? Rothwax wants to abolish peremptory challenges (p.205). Will that help a search for truth? Rothwax attacks the requirement of a unanimous jury verdict (p.213)! Wasn't this amount developed over the centuries as an optimal size? The complaint about "annotated" verdict sheets seems wrong-headed (p.217). Printing only "some of the statutory elements of the counts" is misleading to jurors. "Jurors have the power to ignore a judge's instructions and do whatever they please" (p.218)? Rothwax has a strange love of the Civil Law system (p.220) considering he has never lived under it! You should read Marshall Houts' book "King's X and the Common Law System ..." to be better educated than by this tabloid-style story about laws. The photographic angle for the back-cover picture tells something.

Judge Rothwax has masterfully documented the reality of a criminal justice system gone mad. His examples of how the criminal element in our society can use the system to escape justice is frightening. As a former police officer I witnessed suspects leaving the police station before I was finished with my arrest reports. Judge Rothwax gives examples of how difficult it is for a police officer to know if what he is doing is even legal on any given day. This book gives disturbing true stories of how the court system has chosen to ignor the question of "is he guilty," and instead focus with how evidence was gathered. This book is a must read for anyone even slightly interested in our justice system.

I had never read a book by a judge until this one. I thought all judges regarded the American criminal system as a model for the world to observe so I was surprised to read this one and see his opinions. Judge Rothwax sits on the New York Supreme Court and has done so for twenty-five years. I think this lends credence to the belief he knows much about the law of the land and any criticism from him should be held in high regard. And he uses this book of his to find plenty of faults in our present system, with proposed solutions. I am a layman in law but I do disagree with some of his proposals, I wouls like to see what other lawyers and judges might have to say about the book. One of my first questions is about the Warren Court and its rulings on many cases. Judge Rothwax does not criticize the court directly, On reading the book I feel that the criminal system had many faults during that period and several rulings were made to correct these faults. I know interrogation at that time was referred to as the "Third Degree" and involved forms of torture in attempts to get confessions or statements that could be used against the defendant. I also know laws of search and seizure were flexible, mainly in favor of the prosecution in criminal cases, and the Fourth, Fifth, and Sixth Constitutional Amendments, part of the "Bill of Rights", were often stretched in one direction which is why the Warren Court has stretched them in the opposite. In this case I have stretched "The Warren court" well beyond its composition with Earl Warren to include rulings of the Supreme Court which have caused a fair amount of discussion and argument as to "original meaning" and "modern interpretation". Judge
Rothwax does not enter such discussions, he has his own axe to grind.
Being a layman, I do not intend to set forth my own ideas, I only want to say you should read the book, see if "search and seizure" favor the defendant too much, if the Miranda ruling has been expanded beyond just rulings, whether fairness has concealed truth and what to do about it, is Judge Rothwax right? Other questionable ideas are the right to silence and should the jury use it in its deliberations, the plea bargain, is it coercive? And finally, is the jury system run correctly with its exclusions selection process? Judge Rothwax comes up with ideas, are they good or bad and why? Certainly the book deserves reading in the present state of criminal affairs, on which side has justice and truth fallen? Can and should it be fixed? Remember, if it ain't broke, don't fix it.
In the book Judge Rothwax makes many allusions to the O. J. Simpson trial, mainly disparaging as to its conduct and verdict but no direct review until the final chapter, where he really comes out with his feelings about the conduct of the case. To judge for yourself, it might be good to read the Goldman book, "I Did It." by Simpson himself. This is a self-serving book, can you spot the trouble spots? Read Judge Rothwax.

I agree that Judge Rothwax is Supreme Court material. (see review below...) We need minds that can reason like this.

I believe this book should be required reading to graduate from high school. We need an informed citizenry. Although parts are a bit tough to get through, the incredible, true cases that are highlighted in this book are eye opening.

We live in a great country but recently it seems we are headed in the wrong direction. This book helps you understand what we are doing wrong. And the recommendations at the end of the book could start a "grass roots" movement to get us turned around and going in the right direction.

Don't hesitate to buy this for anyone who has an interest in how we can improve our legal system. We should all read it and send copies to our legislators.

And thanks to Judge Rothwax for informing us!

Here is a book from a judge that reviews some obvious problems with our criminal justice system. Some of these problems have been most obvious in high-profile cases, but that in no way means that the system is working for low-profile ones, as Rothwax shows.

Rothwax starts by making a very strong point. The main problem is that criminal justice rarely involves a search for the truth. It is all well and good to discuss police misconduct or various extenuating factors, but none of this is proper until you answer what ought to be the very first question: did the defendant commit the crime? If you get that answer right, you can try to make a just ruling. If you can't get that one right, that is a big problem.

And in some cases, the evidence of guilt is simply suppressed. How can that help us produce justice?

One very good recommendation that Rothwax makes is to have defendents come up with their side of the story in a sealed envelope. Defendants would not be required to do this: they'd need to do it only if they wanted to see the prosecution's case via pretrial discovery. As things stand, they change their stories to fit the prosecution case. As Rothwax says, they'll start with "I wasn't there!" And when the prosecution has a video to disprove that, they'll say "It was self-defence!" And when the prosecution proves that the victim had no weapon, they'll say "I was crazy!" Stories are concocted to fit the facts the prosecution has discovered. The Menendez and O. J. Simpson trials are dramatic examples of this.

Rothwax's point is simple: "truth must be the goal of any rational procedural system."

Next we get to laws about search and seizure. These are shown to be hopelessly confusing, particularly when it is vehicles that are being searched or seized. Rothwax says that we should get rid of the mandatory "exclusionary rule," and replace it by a reasonableness criterion, as is done in Germany, for example.

The Miranda rule is discussed after that. While it has been useful in some cases to avoid having people get browbeaten into confessing to crimes, it is sometimes wrongfully applied to voluntary confessions. Once again, the first question ought to be: did the defendant commit the crime? If we answer that one correctly, we can proceed from there. We may even let a guilty person go free because the police mistreated him, but it ought to be with the full legal knowledge that he committed the crime he was accused of. Rothwax points out that the effect of Miranda is to say to a defendant "I urge you not to confess." It helps make trials a kind of game in which any defendant always has a sporting chance to escape, and that is quite a ways from truth or justice.

Two more points that Rothwax makes include the fact that peremptory challenges of jurors should be disallowed (they tend to result in stacking the jury), and that juries should be told to regard the refusal of a defendant to testify to explain what would normally be considered evidence against him as indicating the truth of that evidence.

But perhaps the best point of all that the author makes is that juries simply are very poor determiners of truth.