Order In the Courts, Part I

THE OPEN MIND
Host: Richard D. Heffner
Guest: Judge Harold Rothwax
Title: “Order in the Court”
VTR: 5/29/89 Part I

I’m Richard Heffner, your host each week on THE OPEN MIND. And my guest has joined me at this table before as well.

Harold Rothwax is best known as the brilliant New York judge who presided over the Joel Steinberg trial…largely because parts of it appeared on nationwide television. And when the trial was over he came on the Open Mind to discuss cameras in our courts, which he now embraces, though only when they are first approved by and then kept under the strict supervision of presiding trial judges.

But while the Steinberg trial had made His Honor something of a media phenomenon, his audacious innovativeness and his no-nonsense, tough-minded ways had already often called Harold Rothwax to the public’s attention…from this earliest days as an accomplished defense attorney, as a law professor, and ultimately as a top-flight criminal court judge. Now, of course, he really must live with celebrity status. And even as I ask him back to the Open Mind to discuss some of his more outspoken views on the judicial system generally, I must cope (as I think the judge must come to cope) with some rather high-profile things he has said, has done, and wants done about those accused of crime, those who defend them…and those who preside over their trials.

For instance, not exactly a scholarly law journal, the June 1989 Vanity Fair headlines Ron Rosenbaum’s quite telling interview, “Here Comes the Judge” this way: “Something’s Wrong with the criminal justice system, and Judge Harold Rothwax thinks he knows how to fix it. When he was a young defender of radicals, he used to see the defendant as the victim. Now, after seventeen years on the bench, he sees the victim as the victim – victimized again by the legal process. And he’s angry enough to want to rethink the Bill of Rights…the man who gave Joel Steinberg the max”.

Which leads me, of course, to ask Judge Rothwax just where rethinking the Bill of Rights leads him, whether he’s really ready to take on our first ten amendments which, he suggests, some of us somehow consider even more sacrosanct than the Ten Commandments. Judge Rothwax? Where are you going to go with your concerns?

Rothwax: Well, I think what I told Ron Rosenbaum was that I wanted to reexamine, not necessarily change – change if reexamination leads to change – but to reexamine first. And I think what I had told Ron was that one of the concerns I have is an almost unwillingness to rethink and reexamine the Fourth and the Fifth Amendments, which serve useful purposes today, and I’m sure will continue to serve them after reexamination. But, perhaps, some of the extensions of those Amendments, some of the applications of those Amendments could be modified, or curtailed, without any loss of freedom and with substantial gain in efficiency.

Heffner: Like…what kinds of limitations, or changes, or modifications?

Rothwax: Would you prefer that i start with the Fourth Amendment, or with the Fifth Amendment?

Heffner: Pick your number judge, pick your number.

Rothwax: Well, let’s start with the Fifth Amendment first. Obviously, the Fifth Amendment, which says that no person accused of a crime shall be compelled to incriminate himself, has a useful purpose. The criminal law deals with the State acting upon the individual, and it’s concerned with restraining the power of the State to act upon the individual, and we have a history which showed Star Chamber proceedings in which there were coerced confessions obtained from people under tortured circumstances which were at variance with our values and ideals, and unreliable, perhaps, because of the circumstances in which they had been obtained. But there are many other circumstances now, such as, for example, a defendant who’s been found to be probably guilty by a Grand Jury, coming to trial, being in a courtroom, represented by counsel, hearing all of the evidence against him, the Judge determining that the case is sufficient to go to a jury, and yet he cannot, under those circumstances, even with perhaps the press, or cameras in the courtroom, be required to testify in his own behalf, and if he refuses to testify in his own behalf the judge, at his request, must tell the jury that they may draw no adverse inference from his failure to testify in his own behalf. Now, it seems to me that’s an extension, it’s not required by the wording of the Fifth Amendment. It’s an application fairly recent by the Supreme Court. That’s an extension of the Fifth Amendment, that is unnecessary, that is excessive. I may even be wrong on that, but part of the problem that I have is that nobody apparently is willing to discuss it with me. Civil libertarians who will defend to the death the First Amendment and all of the Bill of Rights seem to become queasy when the idea comes of re-examining the Fifth Amendment. It’s as though, upon reexamination, it won’t stand up. My belief is it will stand up, but some of its applications and some of its extensions, will not. It seems to me it’s fair and appropriate to say to a defendant, under those circumstances, “Come, society is interested in your testimony, you have an obligation to come forward and tell us what you know. Society is entitled to every man’s evidence”. And even under those circumstances I would not impose additional penalties if the defendant said, “Well, thanks very much for the invitation, but I’d prefer not to take the stand and testify. I prefer to keep my own counsel”. It seems to me, under those circumstances, the Judge ought to be able to say to the jury, “That you may draw an adverse inference from the defendant’s failure to testify under these circumstances”. I think that comports with human behavior. It comports with human relationships as we know them, and is a much more sensible rule. I don’t pretend for a moment that changing that rule will manifestly alter our system of criminal justice, but that is simply one example of a change that i think would be proper and appropriate, and I find it difficult to engage with others in extended discourse on that because people are hostile to reexamining the Fifth Amendment. As I told Ron Rosenbaum where…I have law students who were prepared to reject the Ten Commandments but not even prepared to reexamine the first ten amendments.

Heffner: But now, wait a minute, I know you would not even enter into such a colloquy lightly. You suggest, however, that taking this step would not have enormous consequences in terms of the criminal justice system. Why then would you suggest this particular modification of present Supreme Court rulings?

Rothwax: Because I think it’s a sensible, a reasonable, a decent, a civilized change. The reason why I say I don’t think it will make that much difference is because I think that in…oh, fifty percent or more of the cases, defendants do take the stand, and I think to some extent defense lawyers have always suspected that even though the judge tells the jury that they may not draw any adverse inference from the defendant not taking the stand, the juries tend to disregard that, and, so I’m not sure it will have a manifest influence.

Heffner: But then…then if it’s not broke, why fix it?

Rothwax: Well, I think it is “broke”. I think, I feel, as a judge, foolish in telling this jury to go against what is a reasonable and natural predilection to draw an adverse inference from a defendant not taking the stand, and I have to go beyond that and say, “You may not draw an adverse inference”, and it seems to me that’s a wrong ruling, and I shouldn’t be doing it.

Heffner: Yes, but Judge Rothwax, are we dealing with your feelings of foolishness, or are we dealing with an adverse impact upon the criminal justice system?

Rothwax: No, I think that a lot of jurors have trouble with that rule. It goes against their natural inclinations, it goes against the way they feel the law ought to be. They don’t really quite understand it, and it seems to me that the law looks foolish, and may very well be foolish in a circumstance where you require a jury not to do something that naturalness and reasonableness would seem to suggest they do.

Heffner: But you’re not setting up the situation in which you’d say, “This has lead, in my opinion, to this consequence, that consequence”.

Rothwax: No. Nor do I say that in the Vanity Fair article. I don’t believe that changing this particular aspect of the Fifth Amendment alters in a significant way the administration of criminal justice in our time. No, it doesn’t do that. It’s one of a number of changes that i would suggest.

Heffner: Of course you’re…you’re such a tough-minded gent, and you are, that you’d like people to think through these things.

Rothwax: Yes.

Heffner: I gather that’s what you’re really pressing for.

Rothwax: Yes. It seems to me that if it’s wrong, let’s change it. Why not?

Heffner: What are some of the more significant, in terms of their impact upon the criminal justice system, changes that you would bring about.

Rothwax: Well, again, I think the application of the Exclusionary Rule, that rule which says that if police officers obtain evidence illegally as a result of an illegal search and seizure, that the evidence must be suppressed.

Rothwax: Now, again, let me emphasize that I think that that is a good rule. I think the Exclusionary Rule to some extent grew out of our own experience with the fact that before we had it, where police officers were unrestrained in their exercise of power, that there were abuses, and the Exclusionary Rule came in to restrict police abuses, by saying to police officers “We will deny you the fruits of your own illegal conduct”. I think the problem with it has become that because the motion to suppress physical evidence is made in almost every criminal case, the issue is litigated with enormous frequency, and as a result that area of the law has become hyper-technical, and the Rule was intended to deter illegal police conduct. In many of its manifestations, police officers are acting in ways that they deem to be reasonable and well-informed, and in good faith and the evidence is being suppressed, nevertheless, because of highly technical rules which even judges cannot know about. In the article to which you’ve made reference, I indicated to Ron Rosenbaum the case that I had some years ago. A fairly simple case in which a police officer alone in a patrol car, around midnight, received a radio run of a man with a gun, on the street, about a block or two blocks from where he was located, and the report was that he was wearing red sneakers and walking with a limp. Now he put the car in order and drove over to that scene, drew his weapon, went up tot eh man and said “Freeze”, and then patted the man down and recovered a weapon from his back pocket. And the case came before me and there was a motion to suppress the physical evidence, and I denied the motion, I argued that the police officer had acted reasonably. It would have been a dereliction of duty for him to disregard the call, and not pay any attention to it. When he did respond to the call he acted in a restrained fashion, he didn’t beat the man over the head before he did anything. He froze the situation, and took reasonable steps to protect himself and to determine if the report that he was inquiring about was justified. So I felt that the police officer had acted reasonably and logically, and I denied the motion to suppress. Thereafter the case went up on appeal, and I was reversed by the Appellate Division, First Department, by three judges to two. The judges in the majority felt that the report was from an anonymous source, that is the report which the officer had received, was from an anonymous source, that we couldn’t determine or ascertain whether or not the person who was making the report was well-informed, or was malicious, or had some other reason for making the report, and that, therefore, the officer should not have drawn his gun, or should not have acted as he did in that particular situation. He should have verbally inquired of him before he did anything. That raised a question in my mind, “Well, if he went up tot eh fellow and said ‘Do you have the gun’, and he would say, ‘Thanks very much for inquiring, but no, I don’t’”. What the officer is supposed to do under those circumstances…is it “Miller time” at that point, I don’t know.

In any event, that case then went up to the Court of Appeals, and the Court of Appeals, I believe by a four to three decision reversed the Appellate Division. Now all of this takes about a year, and much thought and much briefing, much reading, much care, consideration, and at the end of that year we had thirteen judges who had passed upon it, and they had divided seven to six, between them. One judge, either way and you get a different result, and ultimately, my decision was upheld by the Court of Appeals. But it seems to me a rule of law which is that hyper-technical, where what the officer did, he had to respond to it instantaneously, had to respond on the spot, he had to use good judgment, he did not have access to a law library at that point in time, or even to an Appellate or Trial Judge, late on a Saturday night, it would seem to me that under those circumstances what has happened with the application of the Exclusionary Rule is that it becomes more and more technical, more and more a game that we’re playing in which highly reliable evidence is often suppressed because the policeman has guessed wrong. Not because he has behaved illegally, or unreasonably, or unintelligently, but because a number of judges sitting in isolation, on reflection months later, have determined that some arcane rule has not been carefully applied.

Heffner: Well, I listened carefully to some of the words and some of the phrases you use. Should he…should we assume that it’s “Miller time”? There is a kind of flipness about your approach to that that i would think…

Rothwax: Oh, I hope…I hope I haven’t misled you. No. I don’t think there’s anything…the process…the situation with which the police officer is confronted could not be more serious. He’s alone in a dangerous neighborhood, late at night, and he’s told that there’s a person with a gun in his immediate vicinity. I think we as a society want that police officer to respond to that call. We don’t want him to say, “Let me find out who was the reporter on this, what did he know about it, how does he know what he says he knows, let’s check into this”, because by the time that checking is done, the fellow with the gun is long gone.

Heffner: But, Judge Rothwax…

Rothwax: He could say, on the other hand, “An Appellate Court will say there’s an anonymous source here, maybe I ought to go for coffee, if not for Miller”.

Heffner: Okay, shall we strike either the coffee…

Rothwax: Uh huh, eat your truth.

Heffner: …or Miller?

Rothwax: No, I don’t care.

Heffner: But then…quite seriously, I think anyone listening to you, as I do, totally sympathetic with your point of view, and yet when you talk about the narrow division…what was it…seven to six?

Rothwax: Ultimately. Right.

Heffner: In the number of judges…

Rothwax: Yes.

Heffner: …taking the one position or the other, I have to worry about what were those six judges thinking about. What is the downside of your position…of our position?

Rothwax: I think I’ve fairly told you. Basically the judges who felt the other way, felt that you had an anonymous source here, that you did not know what the person, what the reason for the person…the reason for the call was, you didn’t know what the information was, and I think society has to take a position on that. Do you want the fellow in the radio car to respond to those calls, or don’ t you want him to respond to those calls? If you want him to respond to those calls, then it seems to me he’s acted reasonably.

Heffner: Okay, now we’re in danger of driving the cops bananas trying to figure out…

Rothwax: No, in fact, you’re not in danger of driving the cops…

Heffner: Well…

Rothwax: …bananas because the cops basically have an instinct to move toward the situation rather than move away from it. I think what you have is a situation of a criminal justice system that is tied in knots because the…very often months later this police officer comes into court, and he testifies, long after the event, and wonders what all of this is about. Why there’s so much argument about what he’s done, and doesn’t fully understand it, and he’s not getting a clear principle that gives him guidelines for the future. See, I’m not opposed to the Exclusionary Rule. I don’t want the State to violate the privacy of its citizens without good reason. This is not an argument for a mindless return to the past where police officers would kick in doors to look for gambling slips with no information or evidence beforehand. No, I’m not asking for that at all. But I’m saying that if you’re going to be suppressing highly reliable and probative evidence, and allowing perhaps very dangerous criminals to go free in the interest of deterring illegal police conduct, then the message to the police as to what the illegal police conduct is must be abundantly clear. It can’t be a game in which they cannot figure out what the message is.

Heffner: Judge Rothwax, let me ask a very straight question. Do you think that it’s possible to be that clear, or should we work on the assumption that overall our society requires that the criminal not go free because, in those famous words, “the constable has blundered”. Is it possible, really, to set it down so clearly, after all in this instance seven judges…

Rothwax: No, it isn’t. No, I don’t want to create the impression, by saying that it should be clearer than it is, that it can be made crystal clear. It cannot. The variety of circumstances that can arise in Fourth Amendment litigation are extraordinarily diverse, and variegated, and there is no way that you can have one, clear golden thread that runs through, which the police will always know about. All I’m suggesting is that we can make it much clearer than we have made it.

Heffner: Do other…do other societies, do other criminal justice systems, make use of an exclusionary principle to the extent that we do?

Rothwax: I don’t think there is any other society that uses the Exclusionary Rule to the same degree that we do. Indeed, some years ago, I don’t recall right now how many, we had an ABA meeting here in the united states, in New York, and a number of judges from England came over, and one of the High Judges in England sat with me for one morning while we were arguing a motion to suppress, I believe it was a fellow who’d been caught with three machine guns, three machine gun silencers, and four hundred rounds of live ammunition. And I could sense the horror with which he was observing this, and I turned to him and I asked him whether or not there was any movement in England to adopt the Exclusionary Rule, to which he responded “Not while I breathe”. The fact is that you can have a civilized and decent and enlightened administration of justice without having an Exclusionary rule, but I’m not arguing, please, let me be clear, I’m not arguing for the abandonment of the Exclusionary Rule. I think the Exclusionary Rule serves useful purposes, but it cannot be mystifying to the police. If you want to deter illegal police conduct, the police are entitled to know what illegal police conduct you wish to deter.

Heffner: But that’s why I ask you whether, in fact in reality, it is likely that you can develop the means by which you inform the police…

Rothwax: Oh, I think you can.

Hefner: …of what that line is in a clear, clear way.

Rothwax: Well, I don’t want to pretend that we can make it crystal clear. No. but I think we can make it much more clear than we have. I think you can have a standard of objective reasonableness, standards of good faith. You don’t want good faith without reasonableness because you don’t want to encourage ignorance. You don’t want reasonableness without good faith because you want the police officer to be conscientiously trying to do the job, and I’m not even arguing that those rules are easy to apply; they’re not. Or that they won’t’ develop their own body of law that grows out of their application; they will. But I’m saying the effort has to be made to draw a clearer line if your purpose is to discourage illegal police conduct, rather than simply to give a defendant in a case an unjustified benefit, a free walk, because the officer with the best will in the world, and even being well informed, couldn’t have guessed how judges will have acted on appeal.

Heffner: Now, I think you make a lot of sense, and I’m willing to bet that most people watching…

Rothwax: Well…

Heffner: …think you make a lot of sense.

Rothwax: That’s encouraging. (Laughter) I appreciate that.

Heffner: But six of those thirteen judges did not.

Rothwax: Yes.

Heffner: Now, to what do you attribute that difference…I don’t mean the principle.

Rothwax: Well, I’m not attacking the people who disagree with me, don’t misunderstand. I think there is a division in our society, and I don’t think it’s clear. The criminal justice system must be both fair and effective. Must be both of those things. If it’s fair without being effective, it’s a mockery. If it’s effective without being fair, it’s a tyranny. It’s got to be both fair and effective. But what we don’t realize is that those principles are in opposition to one another. They’re in tension with one another. As a system becomes more fair, it becomes less effective. As it becomes more effective, it becomes less fair. All of us want the system to be both fair and effective, and I don’t think we’re aware of the tradeoffs. So the judges who’ve split seven to six, the ones who agreed with me said, “In this area we want to err on the side of effectiveness“, and the others said, “We want to err on the side of fairness”. That tension is always present. It isn’t that those who want effectiveness deny the importance of fairness, or those who want fairness deny the importance of effectiveness, but that is the struggle. It’s rarely articulated in that fashion, but that is the dynamic at work.

Heffner: What do we do?

Rothwax: Well, I think first of all we bring the dynamic to consciousness. We become aware of the fact that there is a trade-off, that there is a price to be paid, that you cannot have a system that seeks perfect justice without having, in effect, building in paralysis, that you have to be aware that there are sacrifices in effectiveness, as you become more fair. It isn’t that you can keep on becoming more fair without that price being paid. So I think bringing it to an awareness, being aware of the trade-off, the price that you pay for every change in the system is crucial, and that’s part of what I was trying to say at the beginning of the program, with regard to the charge…with regard to the adverse inference. It’s just an increment, one way or another, but it’s also an expression of an attitude. It’s a way of saying in a way that the law has to be reasonable, but it has to be aware of the realities with which it’s dealing, and I don’t think we have brought that to consciousness. I don’t think that we are fully aware of that tension between those competing concepts.

Heffner: Does the kind of dialogue that you would like to see take place, does it take place in your own profession?

Rothwax: I don’t see much of it in terms of reexamination…what I’ve suggested by the way with regard to the Fifth Amendment was not original with me. Henry Friendly who was a wonderfully respected judge, and one time Chief Judge of the Second Circuit here in New York, wrote a Law Review article in the University of Cincinnati Law Review twenty years ago to start this kind of a dialogue, and in my own view, it’s never been picked up on, and he has not been the first. There were other judges before him, and other professors before him, but it has not gotten going, it hasn’t gotten developed. I don’t quite know why. Our political discussion of these issues, it seems to me, is at a very low and highly emotional level, and I just don’t think we’ve had the chance for intelligent people of good will to discuss these issues.

Heffner: Do you think you’ve just given the reason because the political dialogue is at such a low level? Those who might otherwise be willing, theoretically, to probe these questions, feel that they will be identifying themselves with the “know-nothings”.

Rothwax: Well, I think, you know, in the Vanity Fair piece, the author quotes Alan Dershowitz, attacking me personally, rather than in terms of the ideas that I’ve articulated, and my sense is that Alan was there concerned about once you open the floodgates there’s no way of being sure that you’re going to close them again. It seems to me he betrays a lack of faith in his own position by responding as he does. It seems to me he’s the kind of a person who should be engaging in this kind of a dialogue. The civil libertarians have always been very quick to reexamine the Second Amendment, which allows the right to bear arms, and that’s okay with me, but it seems to me the other Amendments can also be subjected to meaningful reexamination.

Heffner: Of course, we’re not just talking about an Alan Dershowitz…

Rothwax: No.

Heffner: …we’re talking about distinguished members of the highest court who, over the years, have been, shall I say, almost absolutists…

Rothwax: Yes.

Heffner: …in these areas.

Rothwax: Well, in a way, the Bill of Rights, of course, denies majoritarianism. It says that the rights that are belonging to the people in the first ten amendments are not subject to fleeting majorities, or fickle majorities, which can change them in a moment’s notice, and obviously, an amendment process is one that is difficult and complex and intentionally so, under the framers’ view of the Constitution. So, I don’t mean we should change any of those things lightly and without careful thought, but it seems to me we should begin the process. Our dialogue on these matters is not what it ought to be, it’s not as well informed and as thoughtful as it might be.

Heffner: You think it will become so, and I ask you that as I get the signal our time is just about up.

Rothwax: I don’t know whether it will become so, I hope that it will become so. (Laughter)

Heffner: Well, one way of doing our bit is if I ask you if you’ll stay, and do another program with me now, so that we can carry on this discussion.

Rothwax: I will.

Heffner: (Laughter) Okay. Thank you Judge Harold Rothwax. And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you care to share your thoughts about today’s program, please write to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts send $2.00 in check or money order. Meanwhile, as another old friend used to say, “Good night and good luck.”

Continuing production of this series has generously been made possible by grants from: The Rosalind P Walter Foundation; the M. Weiner Foundation of New Jersey; the Mediators and Richard and Gloria Manney; the Edythe and Dean Dowling Foundation; Mr. Lawrence A Wein; the New York Times Company Foundation; and from the corporate community, Mutual of America.

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