THE OPEN MIND
Host: Richard D. Heffner
Guest: Sol Wachtler
Title: “A Jurist Looks at the Law”
I’m Richard Heffner, your host on THE OPEN MIND, where we know with a certainty that one subject is very much on the minds of many Americans. Namely, the law. If in no other way we’d know because of the extraordinary response we received to the suggestion, the suggestion make here by Sol Wachtler, Associate Judge of the New York State Court of Appeals, that we need a literal martial plan to revitalize on a massive scale our whole system of justice in America. Well, we’ve asked Judge Wachtler back to expand on this notion, and to explore other aspects of this problem-filled area of concern in contemporary America.
Judge Wachtler, because the legal ingredient in American life is so great, I think because so many of us feel that way, because members of the bar play such an important role in American life, I think there has been a great deal of a sense of a disillusionment in the period after Watergate, when seemingly time and time again members of the bar seem to have participated in an excess of zeal, perhaps of arrogance, in defense of their clients or in pushing their interests in American life in such a way as to make us feel that perhaps the law is not the noble profession that we’ve always thought it has been. And I wonder what your comment on that is.
WACHTLER: Well, first of all, Dick, I think that the fact that most of the Watergate defendants were lawyers has been a source of great concern to the bar and to law schools generally. I could give you many areas of defense. For example, I could tell you that these same defendants were all church-goers, and they’re all men, and therefore you don’t want to single out the fact that they happen to be lawyers as the reason for their misdeeds while they were performing what were their official functions. But I’m afraid that you won’t buy that defense, and I probably won’t buy it either.
WACHTLER: The law schools are conscious of this. There are 147 law schools now in the country which have started what they call generically the “anti-Watergate ethics courses”, trying to train law students to be more sensitive and aware of their responsibilities once they become lawyers. I am not one of those who is going to beat my breast and say, “Mea culpa”, because of the fact that they were lawyers it shows a weakness amongst the legal profession or amongst the members of the legal profession, because I really don’t think that’s true. After all, before they went through their three years of law school they had 20 years of interacting with their family and with their environment. And if they were bad people, I think they became bad people not by virtue of their law school training or being lawyers, but because it was part of the person himself. But there are some areas in the laws which kind of open up a person to a type of criticism. For example, lawyers are considered generally as technicians who don’t make moral judgments. They are hired guns. They are brought in to extricate a client who happens to have a particular problem. And then the lawyer sets himself to the task, or herself to the task, of resolving that problem for that client. Again, not wondering or worrying whether the client happened to be right or wrong, but trying to extricate the client. Then you have that mentality going into government office. And thinking in terms of the agency which that lawyer is serving or the individual which that lawyer is serving as being a client. And the first thought then, the lawyer reaction, the visceral, knee-jerk, lawyer reaction is to protect the client. So that you have the people surrounding the president being concerned not with the common good in the Watergate mess, but with protecting the reputation of the president, the client. Trying to cover up, so to speak. And this went all the way up to the Attorney General. So this would bespeak of a weakness perhaps built into the lawyer mentality.
And then you have the zealousness of the lawyer in the courtroom, where the lawyer goes into a courtroom to, let us say the lawyer defending a person who is accused of a crime, he goes into the courtroom to free or to prove his client innocent. The prosecutor, on the other hand, is in there to prove the client guilty. In civil litigation, trying to prove the merits of the respective causes. There you have a built-in excessiveness, because in the context of the courtroom you have the lawyer doing everything that he or she can, using all the tactics – some people call them tricks – to try to convince the jury or the judge that his or her client is in the right. And this zealousness of course has a certain self-corrective process within the courtroom, because the lawyers in the adversary system check on one another, and then they have the judge checking on both of them. But soon as you remove that lawyer with these instincts again out of the courtroom and put him in the context of governmental service, then perhaps he or she will continue this zealousness, will continue to perhaps replace the desire to win with the candor that would ordinarily be required. So these are some of the reasons why I think lawyers can perhaps fall into certain pitfalls which are adverse in the context of governmental service.
HEFFNER: Well, you say, “In the context of governmental service”. But suppose we go back to the courtroom. There are so many of us today who feel that persons who have committed crimes have not been punished because of what you call the “built-in excessiveness” of the defending lawyer, because of that knee-jerk capacity of the lawyer to defend at all costs his client. That too often, not just in the level of government, in terms of what happens in the ordinary courtroom in this country, those who should be brought to justice are not because of the capacity, the hunting instinct of the attorney who is trained that way in law school.
WACHTLER: Well, you see, I think that we have to start off with one of the most fundamental and basic precepts of our American jurisprudence, and that is that a person is innocent before that person is proven guilty. But they way, and this is related to what we were talking about a moment ago because people perceiving someone as someone they know to be guilty, when they see a lawyer in there, or read about in the paper a lawyer in there defending that person, right away they say, “That lawyer is a phony. He’s no good”. But that lawyer is really discharging his responsibility, because again there is the presumption of innocence. And that lawyer is expected and should be expected in our system to do everything that he can, everything that he’s permitted to do under the law, that is, to try to win an acquittal for his client. In that way, we have the truth-finding process. Because while he is doing that, the prosecutor is doing all that he can to try to prove the guilt of that individual as was set forth in the indictment. And with the two tugging one against the other, and with the judge overseeing it so that you don’t have either going outside of the perimeters which have been established by our Rules of Evidence, we have the truth-finding process. And it’s not the best in the world. I mean, perhaps it’s not the best that could be conceived of in some academic sense. But it’s the best we’ve been able to find.
HEFFNER: Are you satisfied then, that the ethical standards of lawyers in the courtroom, now, not as representatives of a governmental agency or a governmental administrator, but the ethics of the legal profession in the courtroom are such that we can be certain that no one who has not been convicted of a crime can in our minds, my mind as a layperson, be considered other than guilty, that he must be considered innocent?
WACHTLER: Well, I think that I don’t know whether we’re not mixing apples and oranges here. The fact is that if a person is truly, in God’s eye, let jus say, guilty, does not necessarily mean that he’s going to be found guilty in our courts of law. Now, we have over in one of our courthouses out in Nassau County a legend which says that “Justice is God’s idea and man’s ideal”. We can’t reach that degree of justice. Or do we want to resort to certain means in order to accomplish that end. For example, we say that the trial of a lawsuit is a search for the truth. There are those who say, “Well, why do you go through this nonsense of cross-examinations and objections which are sustained and overruled? Why don’t you simply bring in a rack or some bamboo splints to put under fingernails? And then you’ll get the truth from that individual”. We don’t want that. We want to have the, again, the adversary system. One pulling against the other. And there is no question but that many guilty people will be found innocent as a result of his process. But still it’s a good process and it’s the best, as I say, we’ve been able to find. Although I’m sure that man’s ingenuity could probably conceive of others, it’s the best we’ve been able to find.
HEFFNER: Yes, well, you say that justice or truthfulness is the aimed-at result of the procedure. But isn’t it just victory that is the result of a court proceeding?
WACHTLER: Well, again, this is according to whose perception you’re adopting. When a lawyer goes in there representing a defendant, he seeks victory. And the fact that his client is even to him known to be guilty does not dissuade him from seeking the victory, because his obligation as a member of the bar is to discharge his obligation to his client, and that is to try to redeem the innocence which is the basic presumption. Of course, he is also an officer of the court. And there we have the conflict. How far can he go? Just to give you the example of an actual case: a man is charged with rape. He says to his lawyer, “I really committed the rape. But you’re going to find when you start examining the victim that she’s had a rather sordid past. She’s been with many men. And I think that if you can bring that out during the course of the examination, no jury is going to believe that I actually raped that woman”. Now the lawyer, in his pretrial investigation, finds out that this is all true. He also finds out that this woman is on the brink of mental collapse, and that his vigorous cross-examination of this woman to elicit these facts which might free his client might also push her over that brink and bring her to the point where she would be, as we say in the law, insane. And he’s faced with that dilemma, knowing again that his client is guilty. How far does he go? This is the ethical problem which was posed recently in a symposium before the New York State Bar Association. Actually it was a federal case which was tried in the Midwest. And there, the judge trying the case said that it was the obligation of that lawyer to do everything he thought possible in order to acquit his client, that the client was entitled to this, and that if the lawyer felt he could not do this because of some internal constraint, then he shouldn’t have represented the client.
HEFFNER: How do you, as a jurist, feel about that decision?
WACHTLER: Well, I wouldn’t comment on that particular decision because we have another case that’s now percolating through our courts which is very similar to that, involving a lawyer, two lawyers actually, who represented a man in a murder trial knowing that that man had committed two other murders and even knowing where the bodies we buried. And yet these lawyers felt constrained not to disclose this information to the prosecutor or to anyone else, and thereby in a sense really violated the law themselves because it’s against the law to know of the whereabouts of a body and not disclose it. That’s a misdemeanor. So we have these ethical questions coming up now, and I really can’t comment directly to them. But I tell you that it poses a real dilemma. And it’s not susceptible of easy answer, easy solution.
HEFFNER: Well, I recognize that. But isn’t the mythology that has always pervaded this whole question of the role of the legal profession in this country, hasn’t that been a detriment, hasn’t it been an obstacle in the way of our really dealing with the ethical questions? There’s been an assumption that what comes out of a courtroom is by nature just. And I think you have, in the examples you’ve given yourself, indicated that thinking men, working outside of the framework of that mythos, of that principle, basic principle, would decide that there is another kind of justice. Not a higher law, let’s say, but justice exists aside or outside of the ultimate decision of a particular courtroom.
WACHTLER: If we start talking “justice” – and I put that word in quotes – outside of the courtroom and outside of the structures which have been devised, then we can start getting into vigilantism, where someone says, “I know that that person committed the crime. And merely because he will not be convicted, because there’s some flaw it the evidence or what-have-you, that’s not going to deter me from doing God’s will. And I will execute that person myself. We don’t want this.
HEFFNER: Well, we may not want it. We don’t want the rule of the mob. But it seems to me that historically when the will of a majority is done violence, then what results is mob rule, and it does seem to me too that today increasingly there is the feeling that the tiny little decisions, the legalisms – and that may be a very poor word; perhaps we should cheer on the legalisms – are means by which justice is not done. And the courts today stand to some extent in the way of justice if that perception is held by enough people who are going to resort to vigilantism.
WACHTLER: There’s no question about it. And it’s a very dangerous thing, Dick, and I don’t want to minimize it. The fact is that every great western civilization has crumbled just after there was a loss of confidence in the court systems. This is true of Greece in the third century B.C., it was true of Rome in the third century A.D., it was true in Renaissance Italy, France under Louis XVI. It was even true in Great Britain in the latter part of the 19th and early part of the 20th century. It’s the perception on the part of the public that justice is not being done, and that the courts are not being run properly. And this leads to a type of anomie where society itself seeks to become lawless just to stop things, and they pass laws through their legislature which are characterized sometimes as being draconian, merely to stop the lawlessness. What’s the answer? Well, the answer, I don’t think, is simply to say the courts should not rely on technicalities, that the courts should start coming to perhaps more precipitous justice. Because then the individuals’ rights become eroded. And this is always the danger of that. We have in the United States of America a constitutional form of government where we protect an individual’s rights. And once we start saying that because there’s too much crime, because there are problems existing in today’s society, because the courts are becoming too technical in protecting these rights, then therefore we should start eliminating or cutting down on the rights, then we start going into the type of ambiance that preceded Hitler’s emergence in Germany. We start saying, “Well, the protections are not that important. The technicalities are not that important. The courts of law are really doing their job so they should be substituted with kangaroo-type bodies”. And that’s when I think our real danger comes. So we have to try to certainly improve the structure we have, but not eliminate it.
HEFFNER: Well, you spoke the last time you were here about a martial plan for our system of criminal justice, for punishment for the means by which we can restore, if we ever had it, law and order. If we don’t perceive our criminal justice system as bringing about justice, what chances are there that we’re going to infuse the whole system with the kind of aid, the kind of resources that you call for?
WACHTLER: Well, you see, the kind of resources I call for would first suppose an understanding of priorities and what is necessary. When I talk in term so the martial plan I was talking in terms of our nation recognizing after World War II that Europe, which had been decimated, bust be rebuilt. And so we infused vast sums of money in the right places to rebuild that. I think that today we have to recognize the fact that in urban America we have an epidemic of crime. There’s no question about it. And we have to eliminate that through massive doses of money in the right places to establish correct priorities. We have to develop a system of justice which will punish, at the same time will deter, and at the same time will rehabilitate. Our system doesn’t do any of those things at present. Now, there’s always a great deal of rhetoric we have in political campaigns. Take the campaign in New York City just last fall. All the candidates went running around talking in terms of crime in the streets and law and order and the fact that something must be done about it. And then when the campaign is over you hear very little utterances along those lines, and out comes the budget. And we find in New York City, a major urban metropolitan area, beset with all these problems, allocated outside of its police budget, allocated one and one half percent of its total budget to the criminal justice system. On a nationwide level we find that it costs more to build two-thirds of a C5A cargo airplane than it costs to run the entire federal justice system. And I’m talking about judges and courtrooms and penal institutions and everything else for a whole year in this nation.
Now, something is wrong. And yet again, and I heard Commissioner Murphy on this program refer to the fact that when people feel there’s too much crime in the streets they say, “Get more policemen”. But they don’t think in terms of getting more judges and more courts to try the additional felons who are picked up by virtue of having more policemen. They don’t think in terms of increasing the jail space to put these felons in. So right now in the State of New York we find that we are at total full capacity in our prison system. We don’t have room for any more criminals. And yet we want to get more police on the street to arrest more people to put them in jail. But there’s no room for them. So what do we do?” We find that we’re letting more out on parole quicker. We find that we’re having more plea bargaining in the courts. And right now the average, almost throughout the nation really, is over 90 percent of the cases being disposed of through plea bargaining. In New York City – and again I use New York City as a yardstick – 95 percent of the felonies are disposed of this way, and 98 percent of the misdemeanors. Because we don’t have the courts to try them, we don’t have the judges, we don’t have the jails. Rehabilitation has become a euphemism which means nothing. So we have recidivism, where people get out of jail and they commit the crimes all over again. So when I speak in terms of a martial plan, I’m saying, let us look at the entire system. Let us see where the areas of correction must lay, and then let’s do it. And let’s stop talking about it.
HEFFNER: Now, to do it we’re going to have to have that kind of faith in the system, and I know it’s a circular process: Unless we do it we’re not going to have the results that will give us that warm good feeling about our criminal justice system. Doesn’t it seem to you that some action has to be taken by the legal profession itself and by the bar itself, by the system, by the jurists themselves to make it seem worthwhile to infuse those resources into the system? Otherwise it’s never going to end.
WACHTLER: Well, as you say, it becomes a circular process. Because we can’t, the judges can’t do their jobs, Dick, the judges cannot do their jobs today. They are compelled by virtue of decisional law and by virtue of the Constitution and by virtue of all the things that I said before necessary to protect the rights of the individual, to have preliminary hearings to determine whether the confession was a force confession or not. That’s under the Miranda decision from the United States Supreme Court. We have to determine whether the lineup was properly conducted and whether the person’s rights under the Sixth Amendment – you know, Miranda goes to the Fifth Amendment; the lineup the Sixth Amendment – and that, we have what we call a Wade hearing to determine whether that was properly conducted. And that takes its name from a case involving a man by the name of Wade. And the analogy is somewhat apocryphal, but Wade was a black man who was arrested after a woman claimed she was assaulted by a black man. And somewhere in the south they had a lineup, and they put three people in the lineup. They put two white men, policemen in uniform, and Wade, the defendant, and then they said to the victim, “Can you pick out…” and she said, “That’s the man”. Well, obviously something had to be done. So we have to have that preliminary hearing to be sure that those things don’t recur. We have to be sure that the evidence which was obtained was not obtained in violation of the Fourth Amendment and through illegal search and seizure. And so we have to have suppression hearings as a preliminary hearing. And all of these hearings are necessary. Again, we don’t want illegal searches and seizures. That would be the Gestapo approach to obtaining evidence. We don’t want that. We don’t want confessions taken at the end of a rubber hose. We don’t want the Wade type of lineup. So a judge, before he tries the case, has to be certain that none of these things were done.
HEFFNER: Could he be certain in ways other than what we practice now, so that we wouldn’t do violence to these rights and still be able to move through the courts?
WACHTLER: Well, yes, procedurally speaking I think that we could eliminate the necessity for a lot of separate hearings. For example, we could have an omnibus hearing. And al of these things could be ascertained by a court immediately and then that court could go right into the trial process. These things could be worked out procedurally and administratively. But again, we need the judges to conduct these hearings. But under our present system if a judge is sitting there and he knows that he has 1,000 indictments waiting to be tried, and he’s confronted now by a defendant who is going to insist on his full panoply of rights, as is his right to do, through his attorney, the judge will say, “Well, I can’t possibly try this man and those other thousand are waiting to be tried, because I don’t have the personnel, I don’t have the courtroom to do it, I don’t have the time to do it. And if I had to try all of them, the whole system would collapse”. If every defendant today, Dick, said, “I insist on having a preliminary hearing to test all of my constitutional rights, and I insist on a full-blown trial”, our system would break down. We couldn’t try them all. So the judge confronted by this then encourages the plea bargain, where the man will plead guilty to a lesser offense after an auction takes place really as to what offense he’ll plead to. And sometimes will get a slap on the wrist when he should be incarcerated.
HEFFNER: And it is that slap on the wrist that infuriates those of us who are concerned about our own and our family’s security, protection, safety.
WACHTLER: And so the answer is those who are infuriated by it say, “Let us do something about it”. And that something does not necessarily mean increasing the punishment. Because it is not the severity of punishment which deters crime, it’s the certainty of punishment. If everyone who committed a crime knew that he was going to be tried, that he was going to be confronted by his victim, that he was going to be subjected to the process, that if found guilty he was going to be sent to jail, I think that would be more of a deterrence than if a person is faced with some horrendous period of incarceration or even death if he committed the crime. Because again, he feels that by stalling, by delaying, that by the time he’s finally reached for trial it will be so long in the future, by that time perhaps all the witnesses will be gone, perhaps by that time there’ll be no jails to hold him, and perhaps by that time the backlog will be so sufficient that he’ll be able to plead guilty to a much, much lesser offense.
HEFFNER: In 30 seconds, let me ask you the answer to the question: Are you sanguine about the potential for the future of our criminal justice system?
WACHTLER: Yes, I am. I think that there have been giant steps forward taken. We find in New York State now for example we have an administrative judge who has been appointed by Chief Judge Breitel, and he is now streamlining the process. We find in California they have also gone into very sophisticated means of speeding up the trial process and the criminal process, and I think there’s hope.
HEFFNER: Well, I hope there’s hope. Thank you very much, Judge Sol Wachtler, Associate Judge of the Court of Appeals of the State of New York.
And thanks, too, to you in the audience. I hope that you will join us again on THE OPEN MIND. Meanwhile, as an old friend used to say, “Good night, and good luck”.