One Judge's Verdict: Reform Criminal Justice System

Guilty: The Collapse of Criminal Justice

By Judge

Harold J. Rothwax

Random House

238 pp., $23

Just as it often takes a tragic accident to bring about needed new health and safety regulations, perhaps the bizarre twists and perfunctory verdict in the O.J. Simpson murder trial will be a catalyst for essential reforms in America's criminal-justice system.

The Simpson trial in Los Angeles was unique in terms of the defendant's celebrity status, his "dream team" of defense lawyers and consultants, and the trial's saturation media coverage. But according to Harold J. Rothwax, a New York state trial judge for 25 years, the Simpson trial all too typically exemplified the grotesqueness that permeates criminal proceedings throughout the nation.

In "Guilty: The Collapse of Criminal Justice," Judge Rothwax calls for sweeping reforms in a formalistic criminal-justice system that, in his view, has buried common sense and has dangerously lost touch with Americans' "core values."

The book's harsh indictment of the system is all the more arresting because it comes not from a flinty-hearted, lock-'em-up-and-throw-away-the key judicial conservative, but rather from a former legal-aid defense lawyer and self-described "card-carrying-member" of the American Civil Liberties Union. "I was always driven by idealism," he writes.

Judge Rothwax's primary charge is that the purpose of criminal proceedings no longer is to discover the truth ("verdict," he notes, means "to speak the truth"). On the contrary: "Our system is a carefully crafted maze, constructed of elaborate and impenetrable barriers to the truth."

The judge acknowledges that the system must serve other values in addition to truth-seeking, including fundamental fairness and decency, and that we properly impose restraints on police and prosecutors. But, he asserts, "The weight of other considerations has actually made truth subordinate and even irrelevant."

In successive chapters, Rothwax lays out his bill of particulars, describing the ways in which the criminal-justice system has been perverted by hair-splitting interpretations of search-and-seizure rules, by exclusionary rules that bar evidence that was "improperly" obtained (even, in many instances, if the "impropriety" was committed by well-intentioned police officers making split-second decisions in good faith), by hypertechnical applications of the Miranda rules to voluntary confessions, by one-sided "discovery" rules, or by jury-selection procedures that actually eliminate many qualified jurors in favor of unqualified ones.

Rothwax suggests that many of these difficulties have stemmed from a curious notion of "fairness" by some jurists and legal academics - that criminal prosecutions should be a match of wits and skills conducted on a level playing field - as opposed to the fairness that protects the innocent from overzealous prosecutions.

He writes that "the criminal justice system [has become] a sporting event in which the defendant has a sporting chance to evade society's punishment."

The judge illustrates his analysis with numerous examples from criminal trials that he has presided over or studied, including the Simpson trial. The examples, together with a very un-lawyerly penchant for plain writing, makes the book eminently readable.

As Rothwax anticipates, his contentions are likely to draw hot retorts from many defense lawyers and law professors.

And they will indignantly denounce his proposed solutions, such as either requiring criminal defendants to testify at their trials or else permitting jurors to draw whatever inferences they wish from a refusal to testify. Currently, jurors are not allowed to attach any legal significance to a defendant's failure to testify in his or her own behalf.

To be sure, there is room for debate over some of Rothwax's claims and proposed remedies. But the judge rightly decries America's current unwillingness even to discuss such sacred cows as the Miranda warnings or unanimous jury verdicts (in contrast to the robust debate over criminal-justice procedures in Britain and other countries).

The author has made a strong case that our criminal-justice system has many glaring deficiencies requiring thoughtful solutions, and he has at least shifted the "burden of persuasion" to those who disagree.

*James H. Andrews practices law in Winchester, Mass.

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