His Honor, the Judge, Harold J. Rothwax, Part II

Host: Richard D. Heffner
Guest: Judge Harold Rothwax
Title: “His Honor, the Judge, Harold J. Rothwax”
VTR: 11/14/95 Part II

I’m Richard Heffner, your host on THE OPEN MIND. And this is the second of two programs that, in a sense, started a half-dozen years ago when I chaired a statewide committee structured by the New York judiciary to study cameras in the courts. For it was then that I first began over and over again to hear my judicial and judicious Open Mind guest today characterized as a “tough, smart, learned, wise, and eminently fair trial judge, the best on the bench, and an activist who doesn’t believe that a sitting judge has to act like a potted plant”.

Well, now, after a quarter-century of conspicuous service on the bench, Judge Harold J. Rothwax has brought together his wise and humane observations of, and judgments on our criminal justice system in an extraordinarily readable, new Random House volume, graphically but all too appropriately titled: Guilty: The Collapse of Criminal Justice.

Now let’s continue to examine the charges of which Judge Rothwax considers the criminal justice system guilty.

Judge, you know, in our first program I wanted to ask you a question, because time after time in this wonderful book of yours, Guilty, one reads about silliness that leads to miscarriage of justice, in your terms, and certainly in your readers’ terms. But I wanted to ask you how many of the times that you cite when someone went free because of some kind of silliness in our system, how many times did they go scot free? Weren’t these people tried again? Or is it a matter of sending out into the streets people who should be tried, should be found guilty, except for some arcane provision of our court system?

Rothwax: Well, we don’t know, actually. Most of the time, when the appellate court reverses a conviction for one of those reasons that you’ve characterized as silly or irrational or unconnected to any core values that we have, sometimes they reverse the conviction and they dismiss the indictment because the evidence that they have suppressed leaves insufficient evidence to go forward. In that kind of a case, the criminal clearly goes free. Sometimes they suppress the evidence or reverse on some particular reason which would permit a retrial, but you don’t know whether or not effectively the person can be retried, because the appellate process is a very lengthy one. It can often three, four, five years. And if a case is reversed five years later, then it may very well be that the witnesses are no longer available, evidence has been misplaced or lost, and it may be literally, practically impossible to retry the person. So the practical effect of the reversal is certainly often to preclude the effective prosecution of that person a second time even though the appellate court may very well permit a retrial if there is remaining sufficient evidence.

Heffner: Well, you know there’s a phrase that you use here. You say, you write, “Judges get the lawyers they deserve”. And we spoke in our previous program about the defense bar and about the fact that many times there are what you consider miscarriages of justice because this becomes a game, and a game that shouldn’t be played when the truth is at stake. What did you mean when you say, when you wrote, that “Judges get the lawyers they deserve”?

Rothwax: Well, you know the role of the American trial judge is relatively a passive one.

Heffner: That’s the potted plant that you are not?

Rothwax: That’s the plant. Well, I’m not a potted plant, and I’m not passive. But basically the American criminal justice system gives the task to the lawyers of presenting the evidence. That’s not true in continental systems where the judge plays the major role in questioning the witnesses. It is true in our country. Nevertheless, the judge has a role to play to see that the lawyers behave themselves, that they perform within the rules of law and rules of ethics, and he has an obligation to make sure that he does not permit the lawyers to distort or mislead or confuse a jury. And if lawyers try to do that, then the judge has an affirmative obligation to intervene and to keep control of his courtroom.

You will see in America an extraordinary variety of styles. Some judges take the most passive, most helpless, most inert, most comatose way of responding. And others perhaps go too far and are too controlling and so on. My own view of the matter is that a judge must be strong to make sure that the players before him, the lawyers, perform their roles as it was intended that they b performed. Another one of the examples I cite in the book is one where, one day, watching the OJ Simpson trial, I observed Judge Ito say to the lawyer, Peter Neufeld, “That’s the thirteenth time I’ve told you not to ask that question”. Now, to me, for a judge to say that is a confession of almost incomplete inadequacy. I think I would be deeply ashamed to have to say that. And I know when Mr. Neufeld appeared before me I said, “We won’t get past number one, okay?” And what did Neufeld say? Neufeld said, “I asked it 13 times because Ito let me”. Okay? What the lawyer is doing is pushing the envelope. He’s saying “I’ll go as far as you’ll let me go. If you stop me, I’ll be stopped. But if you simply say, ‘Don’t do it’ and I do it, and you let me do it, then I’ll continue doing it”. In other words, there is no internal mechanism of self control. There is no professional code or core that restrains the lawyer. It is a test and a contest of strength between the parties as to how much they can get away with. Now, when Peter came before me and he asked a question and I sustained it, and he asked it a second time, I said, “Mr. Neufeld, that’s the second time that you’ve asked that question. If you ask it again I will conclude you have no good questions to ask, and I will terminate your examination”. That was the last time I had any trouble with Mr. Neufeld. Okay? He wouldn’t do it again. So judges can control their courtrooms in a way that doesn’t’ have to be harsh or nasty or testy or acerbic. They can do it in a quite calm and controlled way. But judges get the lawyers they deserve. If they tolerate misbehavior, they’ll have it; and if they don’t, they won’t.

Heffner: You know, that’s why I never understood, when you and I spoke years ago about cameras in the courts, you thought one of the pluses of cameras in the courts was that it would indicate who were the adequate and who were the inadequate judges. And I rather thought that that was a job for the judiciary to do, or for the political system to do. If you have to look at and judge, judges, how good are we doing?

Rothwax: Well it’s hard for me to say, because when I’m in my courtroom I’m unable to observe the judges in all the other courtrooms.

Heffner: Come on, come on, come on.

Rothwax: (Laughter) Well partly that’s true. I mean, obviously I’m not in a position to go around to different courtrooms and observe. My sense is that we’re doing moderately well. Our ways of selecting judges are not ideal. Our ways of reviewing their performance are not exceedingly good. I’m surprised that we do as well as we do, given the ways in which we recruit, select, review and reappoint, and reelect the people that we do. But it is difficult for me to evaluate that. I do know that some judges are too passive. I know that other judges may be too controlling. Most of the judges, I think, most of the time, do a fairly adequate job.

Heffner: Well you know, we spoke about the times that Judge Ito said to Peter Neufeld,” “This is the thirteenth time…” We can’t not, although Guilty is a book for our times, not for this year or for next year, it is a book for the long period of time, because I’m sure you will concede that the reforms that you feel have to be made in our criminal justice system aren’t going to be made one, two, three.

Rothwax: Absolutely.

Heffner: So let’s look at the OJ Simpson trial. It’s mid-November, 1995. We can’t pretend that we’re on an island someplace. What concerns did you have, given that experience? What concerns about our criminal justice system, even about the question of cameras in the courts, did you have?

Rothwax: Well of all the concerns, cameras in the courts were, for me, the least. I mean, I felt that, to a large extent, what we had was a group of immature players who, with cameras or without cameras, would not have conducted themselves entirely properly. But I mean, you saw a lot of structural defects in terms of discovery, in terms of speedy trial, in terms of the adversary system that I think emerged during the OJ Simpson trial. One of the things that struck me when the case just originated was that somehow California said you must proceed to trial within 90 days. They had the speedy-trial statute. Now, one would think that under a reasonable system of law there are some cases that are relatively simple and not complex which could get a trial within 90 days, and there are other cases probably they can’t. OJ Simpson was a case that should not have been rushed to trial within 90 days. And that was used tactically by the defense. “Let’s proceed right away so that the people won’t be able to get all of their evidence, martial their evidence and be effective in their presentations”. It wasn’t used effectively for speedy trial purposes. It was used effectively for tactical purposes.

Heffner: But that was not a fault of the prosecution.

Rothwax: No, that was not a fault. It was a fault of the speedy-trial laws.

Heffner: Right.

Rothwax: I mean, there’s a chapter in my book in which I indicate that I think these laws are self-defeating and do not serve their purpose, and, for the most part, should be repealed.

Take the discovery laws now. The idea behind discovery is that the trial won’t be a sporting contest, and that it won’t be characterized by surprise; that both sides will be able to have all the information that each side has to know about, and they will, therefore, be prepared and go forward, and the truth will emerge. The problem is that, although the people most of the time under most discovery statutes are required to turn over their entire file; the defense, because of the Fifth Amendment is not obliged to turn over very much at all. And that’s a very substantial problem. And we saw it emerge a number of times in the Simpson case. So what you have is one side turning over all of its evidence, the prosecution, and the defense then saying, “Well, let’s look at the prosecution evidence and we’ll devise our defense based on the weaknesses in the prosecution case”. The defense is not obliged to say what their defense is up front and in advance and before they receive this evidence, which allows manipulation of the evidence, perjury, witness intimidation and so on. And the defense does not have a corresponding, reciprocal obligation to turn over everything in their part.

Now, it’s interesting to me, for example, the prosecutor had to turn over all of the DNA evidence in the Simpson case. And we know from the early parts of the trial that the defense wanted the DNA evidence so that they could have their own experts examine it. But we never heard anything about the defense experts on DNA. It may very well have been that the defense experts examined the DNA evidence and also found, as did the prosecution experts, that it was Simpson’s DNA. But they were not obliged to turn that over to the prosecution, because they chose not to use it. And similarly, in many ways, we allow the discovery to be a one-way street, not a two way street.

Heffner: Would you feel better about discovery if there were less of it, or if it were two-sided, two-edged?

Rothwax: Oh, I feel, I think there ought to be discovery, but I think it ought to be reciprocal, and under our system of law it will never be. If I can give you a brief example in New York; in New York, the prosecutor is required to turn over all of the documents that they have regarding any witness they’re going to call, any statement that he may have made about the case on a prior occasion. Similarly, the defense has an obligation to turn over all of the statements that their witnesses may have made on a prior occasion. Okay? The DA’s obligation is referred to as the Rosario Rule. The defense’s obligation is known as the Damon Rule. Under New York law, when we begin every case, the people turn over a pile of material because the police generate many documents when they investigate and prepare their case. I have now been a judge for 25 years. How many times, Richard, do you think the defense has turned over Damon material? Okay, in every case, 100 percent of the time, the people turn over not only Rosario material, that is a lot of material, but they turn over enormous quantities of it. Now, in 25 years in which I’ve had thousands upon thousands of cases, how many times do you think the defense has turned over Damon material?

Heffner: I’m not even going to guess.

Rothwax: Twice. Twice in 25 years. One, when asked, “Do you have any Damon material?” He said, “What’s Damon material”? I mean, in most of these situations, as I point out in the book, they tell t heir experts not to prepare reports, not to write up their examinations or their tests or their findings. And the law permits them to do that.

Heffner: Do you think this may be one of the reasons you have been the object of the comment, “He really is a second prosecutor?”

Rothwax: No. what I’m doing is, what I’m writing this book out of is idealism. Oh, yes, you look quizzically but it’s…

Heffner: No, not critically, quizzically.

Rothwax: Quizzically, that’s what I said.

Heffner: Yeah, I’m sorry.

Rothwax: Yeah. I believe deeply in this system. I’ve spent my life in this system. I can’t think of anything more important than the way the state interacts with its citizens where life and liberty are at stake. I believe it requires the highest maturity and the highest idealism of the people who practice that. And this book is written out of rage and idealism, because the system is not working properly, because the system is not working properly, because it has become a game plan, because it is stacked in one way or another, because it is irrational, because it is unknowable, and because something that should be majestic and inspiring becomes a confused mass that is only able to be manipulated by lawyers for their own self-interest.

Heffner: “Stacked”. Explain yourself.

Rothwax: Well I think that there are a whole group of statues and procedures and rulings that interfere with and obstruct and burden the search for truth. And they make this a game-playing process rather than a truth-seeking process. And that’s deeply dismaying. The issues of enormous public importance are enacted in our criminal courts.

Heffner: I gather too that you’re saying that those burdens are making it a game, the burdens are on the prosecution.

Rothwax: Absolutely. The burden on the prosecution is a high one, deservedly, properly, to prove guilt beyond a reasonable doubt. The more we interfere irrationally, illogically, foolishly with their ability to do their job – I don’t mean that we shouldn’t interfere with it where other important values are concerned – but when we do it with no good, corresponding, countervailing reason, then we make it harder to protect our society, we make it harder for this process to be a meaningful and useful process.

So the book is written out of idealism and rage that the system so often, so unaccountably, so unnecessarily imposes upon the capacity of this society responsibly and fairly to deal with the issues that it’s committed to deal with.

Heffner: Would you say, Judge Rothwax, that this is the case in more than our criminal justice system? That we Americans here at the end of the Twentieth Century are playing the game in many ways?

Rothwax: As we speak, the federal government is, I understand, shutting down today. So yes, we play a game in lots of ways. I’m not expert to pass upon those other areas. This is my area of expertise. And this is the area where i have invested my idealism and my energy. And it’s deeply distressing to me that men and women of ability and talent have not addressed many of these issues in a way that will make our system more rational, more fair, more workable, more efficient, and more deserving of the American public.

Heffner: Well I, in our first program together, raised the point about defense attorneys like the late William Kunstler and Alan Dershowitz and others, who maintain, seemingly with an incredible amount of feeling, certainly that feeling came out when they were at this table, that we live at a time when government is the threat, and therefore prosecution is the threat, and that they see the, though they wouldn’t characterize them as games as you do, that the games that are played are played of necessity to defend us as individuals against the leviathan state.

Rothwax: What they’re saying is a truism. The Bill of Rights was enacted or adopted to retrain abusive, arbitrary and totalitarian government. And I endorse that 100 percent. I have no quarrel with it. What I am opposed to is arbitrarily and foolishly and unnecessarily, ideologically burdening the ability of the prosecution to prove guilt in cases where there is no corresponding value, where there is no core value that is at issue, and where we have burdened our system not in the interests of restraining totalitarian government. I’m in favor of restraining a totalitarian government; I’m not in favor of rules that done relate to that issue, but also impede, impair and impose upon prosecutors. And, in a way, what they have done, what the Dershowitzes of the world have done, is tried to bully us, in a way. They’ve said, “Don’t think about this process. Accept it at face value. This is the best you can have. Don’t subject it to review. I’m threatening you with totalitarianism if you modify this. Don’t think about it”. It’s an ironic position for a civil libertarian to take, and it’s a bullying position. And this says, “No, stop” about this. That’s a valid and reasonable concern that Dershowitz has. But is that what we’re doing here? We should retrain totalitarian government. Okay? But we can do that and have a fair and efficient criminal justice system to. One doesn’t exclude the other. And don’t tell me I can’t think about certain things because Hitler will come down upon me, it will be the end of democracy in America. That’s too excessive.

Heffner: Judge Rothwax, you’re asking for reason and reasonableness and intelligence and measure and balance? How are we going to find that?

Rothwax: Well, by looking for it. (Laughter) how’s that for openers? I mean, one of the things I’m trying to say is that the problem that we have is that this is an unexamined system. It’s a system that we haven’t rethought, relooked at.

Heffner: You know, that’s so interesting. You said that before: “An unexamined system”. That seems very strange to me. But obviously you mean that. I mean, one of the delights of reading Guilty is that it is such a perceptive, continuously exciting examination of the criminal justice system. But when you say “unexamined” I thought that’s what our appeal courts and that’s what our Supreme Court, I thought that’s what they were all about.

Rothwax: But what they do…they don’t examine the system. What they do is examine a discrete issue.

Heffner: Ah ha.

Rothwax: Courts pass upon a discrete issue. They decide a case, they don’t announce a philosophy. Or at least that’s what they’re supposed to be doing. And so they don’t, the Supreme Court doesn’t pass upon the adversary system. It may pass upon some discrete aspect of that system when it passes upon it.

Heffner: Now, if you pass upon the adversary system, thumbs down? Thumbs up?

Rothwax: There are many things about the adversary system that I find deplorable and that I do not think are self-correcting. And I have been very impressed by the way many of the continental systems into our system, but i am sure that we would benefit from the careful, thorough, inquiring look how other democratic societies, also concerned with Dershowitz about overweening government, how they deal with these kinds of problems. And we could benefit by that. I teach at Columbia Law School, as you know, and I have a French lawyer who is taking my class right now. And I said to him, “How long would it have taken the OJ Simpson case to be tried in a French courtroom?” Expecting him to say, “Two months, three weeks”. And he said, “Two weeks. Two weeks in a French courtroom”. Now, I don’t know whether that’s entirely correct or not. But if he says that to me, is ay, “I want to know more about the French system”.

Heffner: Because there would have been no jury?

Rothwax: That’s right. They don’t have a jury system, they have a mixed panel of judges and lay jurors, which is characteristic of most of Western Europe, France, and Germany, and Italy I believe, and Belgium. I believe even in the Scandinavian countries as well. Bu tour comparative studies are very sketchy. It’s as though we believe we have the best system and we have nothing to learn from other countries. Whereas I believe our system is on the point of self-destruction, at a point of self-destruction and we ought to take instruction from wherever, whatever source we can get it from. We have a lot to learn, and a lot to study, and a lot to think about. And we ought to begin that process and not be bullied by the Kunstlers and the Dershowitzes who say it’s the best of all possible worlds.

Heffner: About bullying. It’s clear you’ll never be bullied. But the reason I ask you for your evaluation of the judiciary really has to do with the perception that so many judges can be. Does this have to do with the political nature?

Rothwax: Sure. Most judges – not the federal judges, but most judges – are not appointed for life; they’re appointed for discrete, indefinite periods of time. They’re subject to either reelection or reappointment. And when they come up for reelection or reappointment, they’re, the bar, the lawyers on both sides will participate in their evaluation and whether they go forward. If a judge is too strong, he may have made too many enemies, and that may retard his ability. And that, I think, builds in a certain passivity, a certain colorlessness in some judges a fear of making enemies. So I think that is an aspect of our system, yes, that it is a political system. In Europe for example, the judges go to judges’ school. It’s a career. You’re not a lawyer and then become a judge; you’re a judge all of your life. So you don’t have any of that concerns. In our federal system, although the appointment process is highly political, the judges are appointed for life. So then they can be completely independent once they’re selected. But that’s not true in almost any of the state systems in our country.

Heffner: Now professional judges. Do you think it would solve a lot of our problems?

Rothwax: I think the issue of professional judges is a complicated one. Obviously you want the highest quality and you want elements of independence and integrity and intelligence. I understand it works very well in France. I think it works well in some of the other countries. And it’s certainly something we ought to know more about than we do. We don’t know anything about that. I mean, we’re content…the other countries are coming over and studying our system all the time.

Heffner: I hope you send them back, saying “Go away”. (Laughter)

Rothwax: (Laughter) Well I’m meeting with somebody later today, as a matter of fact, in which I’ll be discussing our system, somebody from England. But it seems to me that they’re studying our system, and we’re not busy studying theirs. Comparative studies has not been a big field in the United States. And the results of our comparative studies have not been widely produced and distributed.

Heffner: Judge, you know, I know you won’t believe it; I don’t believe it. We have less than one minute left. This is the second of two programs. I can’t ask you to stay now in that seat. You probably would say “No, are you crazy?” To come back. But clearly, the chapter that you have on Jury of Our Fears, one chapter after another in this wonderful book, Guilty, I’d so much like to discuss with you here on The Open Mind. So you’ve got to promise to come back. As burdensome as it may be.

Rothwax: I promise. (Laughter)

Heffner: You promise. And then, of course, I’m going to get after you about some of the Ten Commandments that you have here, the ten changes in our structure that you would like to see come about. Meanwhile, thank you so much for joining me again today, Judge Harold Rothwax.

Rothwax: My pleasure.

Heffner: 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 $4.00 in check or money order. Meanwhile, as another old friend used to say, “Good night and good luck.”

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