on July 28, 2001
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.
This book should be read and discussed in class by every law student, with a view to finding ways to improve our justice system. Not that all of Judge Rothwax's recommendations should be followed, but he certainly provides good starting points for a lively and instructive class discussion that could lead eventually to improvements in our system of justice which could benefit nearly everyone.
Judge Rothwax is, quite reasonably, incensed by the abuses of our legal system by defendants and their lawyers. He has detailed for us several examples of those abuses, and they are indeed horrible examples.
He offers, in the final chapter, ten recommendations, which I will address shortly, but first, attention should be called to the unusual nature of the Supreme Court of the State of New York. It is not at all comparable to the U.S. Supreme Court or to the Supreme Courts of most other states, which are courts of FINAL jurisdiction. The New York State Supreme Court is a court of ORIGINAL jurisdiction, not the highest court but for many cases, the lowest.
Now to the Judge's ten recommendations (pp. 237-238), each followed by my comment(s):
1. The Vast and unknowable search-and-seizure laws, based loosely on the Fourth Amendment, must be simplified and clarified to prevent a guessing game on the street and in the courtroom. As long as the law remains unknowable, there is no justification for the mandatory exclusion rule.
One could hardly object to any needed clarification of the laws, but simplifying them is questionable: a simple rule is very likely to be "one size fits all" that often doesn't fit. And as long as higher courts can reinterpret the law, it will be "unknowable."
2. The Miranda ruling is an unnecessary overreaction to past abuses that videotapes and other technology can now preclude, and it should be abandoned.
And police don't know how to turn off the videotaping and other technology so they can force a suspect to confess of his own free will, especially one they already know to be guilty of WAWB or DWB (Walking Around or Driving While Black [or Hispanic, or Native American, or . . . .])
3. Speedy trial statutes, based on a precise formula of days and weeks, only protect those who are most interested in getting away with crimes and manipulating the system. Reasonableness, not a ticking clock, should determine speed.
I would suggest that whenever one side (prosecution or defense) asks for and is granted more time, the other side becomes automatically entitled to (but not required to take) an equal amount more time.
4. The right to an attorney should not be a factor in the investigative stage, but only in the pretrial and trial stages. Asking questions and receiving answers from a suspect is a legitimate aspect of crime-solving.
Police should have an unlimited right to go on fishing expeditions to try to find something to charge someone with ??
5. If it appears from the evidence that the defendant could reasonably be expected to explain or deny evidence presented against him, the jury should be instructed that they may consider his failure to do so as tending to indicate the truth of such evidence.
Given that rule, it would probably be an extremely rare occasion when it would not so appear to the prosecution.
6. If defendants seek pretrial discovery from the state, they should be asked to place a written version of their story in a sealed envelope before receiving that discovery to preclude manipulation and lying. [sic]
Seems reasonable to me.
7. Peremptory challenges should be limited to three or fewer to avoid stacked juries.
I don't know what the optimal number of peremptory challenges is; it may be more or less than three. It may even vary between different localities, for all I know. Maybe there should be a scientific study to find out.
8. Unanimous jury verdicts are less likely to speak the truth than majority verdicts, and should be replaced by ten-to-two or eleven-to-one verdicts in criminal trials.
If mere majority verdicts are better, why require a supermajority? Why not accept 7-5, 8-4, and 9-3 verdicts as well?
(Actually, I wouldn't feel good about accepting a mere majority, and apparently neither does Judge Rothwax.) I do think it would be reasonable to accept 10-2 or better, as Judge Rothwax recommends, but I don't think 8. states his case very well.
9. American judges should be allowed a more active role in the courtroom to assure that the process is swift, sure, and according to the laws of evidence.
Why not try that out somewhere and see how it works out?
10. The fact that, in recent years, an ever-increasing number of major criminal cases have had decisions reversed on technical (and often irrational) grounds, unrelated to our core values, demands we reevaluate our fundamental philosophy and procedures.
OF COURSE we should have an ongoing process of reviewing and seeking to improve how our courts, civil as well as criminal, operate, to make them more just and more efficient.
Two recommendations Judge Rothwax should have made, but didn't:
A. Reduce the caseload of the courts by decriminalizing victimless 'crimes.'
It makes no sense at all to let murderers, rapists, robbers, and other violent criminals go free because our courts are too busy prosecuting persons for consensual sex or recreational use of marijuana. And by not filling our jails with the harmless, we can make room for the dangerous.
B. Increase by at least an order of magnitude the number of courtrooms and judges, so there will be enough to handle the case load.
on November 13, 2004
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.
on September 21, 2006
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.