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Judge Not...

[Review of Guilty: The Collapse of Criminal Justice by Harold Rothwax (Random House). Originally published in Commentary, May, 1996]

In Detroit, a rapist held fourteen-year-old Angela Skinner captive in his apartment, threatening to shoot her if she tried to escape. When police broke down a padlocked gate to free her, she led them to a closet where the man kept his guns. The rapist was convicted, but on appeal a federal court excluded the weapons from evidence and overturned his conviction because the police had obtained Angela's permission alone to look in the closet, and not his.

To much of the American public, stories like this are familiar, and infuriating: ever since the Warren Court proclaimed a series of new rights for criminal defendants in the 1960's and 1970's, the bad guys have gotten off on technicalities and crime rates have soared. Yet members of the legal establishment see things differently. Tales like Angela's, they say, are atypical; the new constitutional protections undercut relatively few prosecutions, and in any case the origins of the crime wave lie outside the legal system. Thus, a 1988 American Bar Association (ABA) report complains that "the public mistakenly looks to the criminal-justice system to eliminate the crime problem," and contrasts that unlettered view with the perspective held by "professionals," like the ABA's own members, who know the courts play "a more limited role in crime control and crime prevention."

The ABA's view has become a bit less tenable with the appearance of Guilty: The Collapse of Criminal Justice. Harold Rothwax, a judge in the New York State courts for the past 25 years, is nothing if not an experienced observer of the Warren Court doctrines in action, and he reports that they do in fact pose a big obstacle to putting malefactors behind bars. What makes Rothwax's testimony all the more piquant is his background: before joining the bench he practiced as a criminal-defense attorney for twelve years and also served as vice chairman of the New York Civil Liberties Union, a central shrine for the veneration of the Warren Court.

Guilty starts in familiar territory--the Miranda decision requiring police to advise arrestees of their right to remain silent; the exclusionary rule, which directs a judge to suppress even highly probative evidence when the police have stepped over a line to acquire it; and the modern trend toward excluding confessions given in police custody because they may have been coerced. Rothwax then goes on to explore less well-known topics, like the state statutes that enforce the constitutional guarantee of a speedy trial. In one egregious example, a Brooklyn man, charged with shooting his landlord, was apprehended after skipping two court hearings but was then let go on the grounds that the state had deprived him of his right to a speedy trial by failing to be sufficiently diligent in trying to catch him.

To Rothwax, the problem with the Warren Court's innovations is not only that they occasionally let the guilty go free; they also make the process numbingly cumbersome for everyone else. As a result, the difference between an outrageous marathon like the O.J. Simpson trial and the average court case is mostly one of degree, not of kind. Not everyone can afford a Dream Team, but even humble defendants, laments Rothwax, can watch judges "sitting by helplessly while attorneys are visibly engaged in an attempt to twist or foreclose the truth."

Current search-and-seizure doctrine abets this situation by leaving it hopelessly unclear when police actions will or will not be upheld in court. This, in turn, results in lengthy disputes that grind down the will and ability of prosecutors to prosecute. "If," Rothwax writes, "a street cop took a sabbatical and holed himself up in a library for six months doing nothing but studying the law on search and seizure," he would still not know how to obey the law-even if the state's chief justice agreed to ride along in the back seat of the patrol car to offer advice.

In style and in tone, Guilty is closely modeled on Philip K. Howard's successful The Death of Common Sense. Like Howard, Rothwax excels at storytelling while sometimes ducking hard issues by an appeal to "common sense," a concept that seems these days to serve much the same interpretive function some Protestant theologies once assigned to "inner light." The book is a quick read, concealing artful organization beneath a seemingly rambling surface, and in style it is admirably clear and direct, though occasionally falling into cliche or solecism. The fact that it is without source notes, bibliography, or even an index may tempt some readers to dismiss Guilty as a kind of talk-show appearance between hard covers; it is not.

As for Rothwax's concrete recommendations, they are not really as radical as one might conclude from the peals of outrage that have greeted this book from some quarters, most notably lawyers working the defense side. For instance, Rothwax favors sharp cuts in the number of peremptory challenges to jurors, an idea embraced by many other reformers as well. His proposal to allow juries to draw adverse inferences from a defendant's silence, outlandish as it may sound to contemporary ears, would do no more than restore American law to where it stood as recently as 1965. A sharper break from the past is his suggestion that we drop the requirement of unanimity among jurors, in favor of 11-1 or even 10-2 verdicts. Unfortunately, the main effect of such a change might be less to avert hung juries than to reduce the amount of time juries spend in deliberation--not necessarily a desirable objective.

Rothwax also makes a strong case for reform of "discovery" statutes. These require prosecutors to hand over information in their possession--witness lists, recordings and notes of interviews, and the like--to the defense before trial. In the old days, the defense would have a right to such material only if it tended to exonerate the accused. Newer laws require far more material to be handed over, at penalty of a mistrial, in order to avoid surprise or "ambush."

These laws, however, routinely encourage defense attorneys to tailor their stories so as to fit the contents of prosecution files. "We'll devise a defense," said O.J. Simpson attorney Robert Shapiro, "once we know what the state has to offer." In Judge Rothwax's own court, a gunman initially claimed that he had not been the one who shot at a busload of hasidic students on the Brooklyn Bridge; then, having been positively identified, he claimed to have shot in self-defense; then, after it was established that the students had been unarmed, he fell back on an insanity defense. Similarly, a burglar-rapist initially claimed his victim had voluntarily dated him and consented to sex; when it was revealed that she spoke not a word of English, he revised his story to say that he had not been in the room with her at all. Of course, in all such cases a jury hears only the final version.

In interviews and news stories, Rothwax has emphasized that he does not regard his book as hewing to any particular ideological line, and in fact he does not go as far in his proposals for reform as many conservative writers on crime. Thus, he does not object in principle to the exclusionary rule, and his hopes of clarifying search-and-seizure doctrine leave him agreeing with the "result" of most current Supreme Court law, if not its "reasoning." His chapter on plea bargaining defends a practice which has been assailed by other analysts of the criminal-justice system.

Much of Rothwax's case boils down to a plea for wider judicial discretion; everything, he says, should have an exception "so far as is reasonable." In one sense, such latitude is long overdue. After the Simpson debacle, almost everyone (except trial lawyers) would be happy if judges took a firmer hand in managing trials: kept questioning on track, cracked down on attempts to manipulate the jury; and so forth.

But Rothwax also favors widening the discretion of judges to interpret the law. For example, instead of the current "mechanical' deadlines for speedy trials, he would give judges permission to throw out unreasonably stale cases and send the rest forward. There are many objections to such a change, among them that it could end by widening the gap between hard-line judges (who would probably tend to throw out fewer cases) and soft-line ones.

Yet, whatever one thinks about any one of Rothwax's proposals, the portrait he paints of the criminal-justice system is a damning one. Many now agree that it is time to rethink the Warren Court legacy: if the publication of Guilty moves us toward the day when we can begin to debate which parts of that legacy should be discarded and which retained, it will have made a lasting contribution.