THE OPEN MIND
Guest: Hon. Harold J. Rothwax
Title: Guilty: The Collapse of Criminal Justice
I’m Richard Heffner, your host on The Open Mind, where a year ago I discussed with today’s guest his extraordinarily readable Random House volume, graphically, but all too appropriately titled, Guilty: The Collapse of Criminal Justice. Well, now a paperback edition of Guilty has appeared, and, as if I needed it, I have a wonderful excuse to bring back New York State Supreme Court Judge Harold Rothwax to parse the various reactions to his book, and to see whether anything in our national experience since then would lead the judge to write any differently today.
But let me first note that my judicial and judicious OPEN MIND guest is most often 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. So let me ask Judge Rothwax how his own thinking about the criminal justice system has been developing since the first edition of the book came out. Any changes, Judge?
ROTHWAX: No changes in my view of the matter. I’ve had some interesting responses from a number of defense lawyers who’ve come up to me privately and have said, “As citizens we agree with you. As professionals, our mouths are sealed.” So that’s been an interesting response. I’ve had a good response from academia in terms of welcoming what they have described as “provocative ideas and ideas worth discovering and discussing.” And so that’s been good. I would have expected that the response would’ve been much more hostile and harsh than it has been. It’s been fairly welcoming. And I’m sort of delighted by that. And I guess, to some extent, I’m dismayed because I’ve gotten a lot of letters from readers. A lot of magazines have printed excerpts of the piece, and as a result of that and from the reading of the book, a number of readers have written in to us. And what I get from them is that they agree, and that they feel helpless, that so much of our criminal justice system has now been taken over by the US Supreme Court by its constitutional rulings that basically a democratic polity doesn’t have very much impact or effect upon what we can do in the criminal justice system. And although some of the suggestions that I make in the book are capable of being remedied by legislative action or even by court action, many of the things that I am saying should be changed can only be changed either by constitutional amendment or by the Supreme Court itself.
HEFFNER: Then what hope is there that the verdict, guilty, could ever be set aside?
ROTHWAX: Well, I think there’s some… I mean, the Supreme Court is not locked in time. I mean, they’re subject to changes in views, and they evolve over time as well. And I think that a lot of the political leaders are speaking out against many of these rulings. We know that’s been true here in New York and elsewhere. And I think that over time that affects courts in the way they approach some of these issues. So my hope is that in time these ideas will gain acceptance.
HEFFNER: Where do you think change will take place first?
ROTHWAX: Well, I think, in minor ways, it can take place in the states. I know that California, in the wake of the O.J. Simpson case, has set up a commission to inquire as to whether or not there ought to be unanimous verdicts. And there is no constitutional requirement, no federal constitutional requirement, that verdicts be unanimous.
HEFFNER: You recommend that verdicts, jury verdicts be…
ROTHWAX: Ten to two, or eleven to one, rather than unanimous verdicts. England has done that, by the way. A number of other countries in the British Commonwealth have done that.
HEFFNER: In your experience, Judge Rothwax, what percentage of verdicts would change?
ROTHWAX: Well, I think quite a few. It’s interesting. This year alone (I mean, we’re into the twelfth month) I’ve had, out of, I guess, 20 cases that I’ve tried, about five of them have been hung verdicts by ten to two or eleven to one. Now, when you have a ten to two or eleven to one vote, the evidence is usually overwhelming, and the holdout is usually — not always, not invariably; but usually — a person who is irrational or stubborn or has some emotional commitment. A great deal has been written lately about jury nullification by certain groups. And we feel that that is what is manifesting itself in this process. So I think we’re getting many more hung juries now than we’ve ever had before. And that’s certainly true in my own experience.
HEFFNER: And your experience also is that there is a movement toward reform in that area?
ROTHWAX: Well, I say California has set up a commission to inquire into that. There’s been much more public discussion of it. I think there’s much more awareness of the kinds of problems that this poses. So I think there is more of a readiness to consider this kind of a change. I mean, one of the problems with our criminal justice system is that everybody has sort of felt that everything is fixed in concrete, there’s nothing we can do to change it or ameliorate it. And the hope of the book is that we will come back and rethink and review and revisit some of these ideas and see whether or not they’re working as well as we hoped and deserve that they work.
HEFFNER: In terms of jury verdicts and the numbers that are required, what would you say or be willing to concede as the downside of changing the need to not a unanimous verdict but a ten to two or eleven to one…
ROTHWAX: Well, the argument against it is that there would be less deliberation; that the majority would feel freer to disregard the views of the minority. And some jurisdictions have tried to deal with that by phasing in a non-unanimous verdict. In other words, the first day of deliberation, the verdict must be unanimous. If it goes beyond a certain number of hours, or if it goes beyond a day, then it can become eleven to one or ten to two. So that you can address that kind of a problem. We want, obviously, the jury to deliberate, to exchange views, to get the product of their common-sense experience. And we can deal with that. We don’t have to make it automatically or immediately ten to two or eleven to one; you can do it over time.
HEFFNER: Now, you talked about the emotional component when you find that there’s a hung jury. Doesn’t that reflect upon jury selection?
ROTHWAX: Oh, it certainly does. And one of my major recommendations is that we have to severely limit the number of peremptory challenges that we allow the parties to exercise. Originally, you know, in England, where the process began, they used to have 35 peremptory challenges. And then they reduced it to 25, and then lower and lower. And most recently, seven. And now they’ve done away with peremptory challenges altogether because they have found that the purpose of the peremptory challenge has turned into an effort to get, very often, unintelligent, highly emotional, uneducated people on the jury. So that the purpose of the peremptory challenges is being misused. And we could expedite the process considerably by doing away with peremptory challenges. I don’t recommend doing away with them; I recommend that we limit them to three in number. And I think that would be a significant improvement in the working of the system.
HEFFNER: And the participation of the judge, of the presiding judge, in the choice of jurors?
ROTHWAX: Well, I, right now, only can be reactive. I have no control over who’s chosen and who isn’t chosen. I can pass upon challenges for cause. Occasionally I can pass upon peremptory challenges. But basically the system belongs to the lawyers. It’s a lawyer-dominated system in which the lawyers are central, the lawyers are active, and the Anglo-American judge is, by and large, a passive participant.
HEFFNER: Would you change that?
ROTHWAX: I would, yes. It’s interesting that just yesterday I gave a lecture to all of the newly elected judges in the State of New York on the role of the trial judge. And one of the arguments that I made was that the judge should be less passive; that there are times when the judge, I think, can appropriately, without unfairness to either of the parties, inject himself in a way that fosters the understanding and the determination of truth, and that he ought to, in those situations, be mindful of the need not to communicate an opinion to the jury and so on. I would recommend that. And not only this year, but in past years, when I’ve given that lecture, that is the issue on which most of the new judges disagree. And about 50 percent agreed with me, and about 50 percent disagreed with me. Now, mind you, these are people who have just come from the practice of law, so they’ve been lawyers, and they are very protective, even now, of their prerogatives. But I think there is a role for the judge to play in expediting the process with fairness, and in controlling misbehavior by attorneys.
HEFFNER: Well, of course, in my introduction of you, when I talked about your not being a judge in a potted plant, I was quoting you. You don’t believe that. You think ten years from now those judges you addressed yesterday will be 100 percent over on the side of agreement? Or fewer?
ROTHWAX: Well, you know, it’s sort of interesting, because I also teach at the Columbia Law School, as you know, and my last class was last night. And a number of the students came up and they said, “we were very opposed to your ideas at the beginning of the semester. But we wanted to be provoked, and so we came.” And now that they’ve heard those ideas, they’re much more open to them. Some of them are not fully convinced. Some of them are still quite skeptical. But they’re now mindful that these ideas are now ridiculous, they’re not radical, they’re not out of the ballpark; these are ideas that are worth consideration and worth implementing, if only on an experimental basis, if necessary.
So I think, as you have more discussion about this, you open up the system more. You see the problems within the system, you’ll find a greater readiness for change. And that’s my hope.
HEFFNER: Well, in order of importance, starting from the most important, what other changes would you make? And I know that you list them here, but I want you to tell them.
ROTHWAX: Well, the major problem that I have with our system is the proliferation of exclusionary rules. And what we’re doing is we’re simply excluding, in many cases, highly relevant and probative evidence. And that almost mocks the idea that a trial is a search for truth. And, you know, I’ve suddenly, over time, come to the conclusion that as you expand the number of exclusionary rules, you detract from the seriousness and the importance of the trial itself. As trial becomes less important, well then the trial is not a serious, sober search for the truth; it becomes more of a game. It becomes more of a sport. And I think that’s why you have more attorney misbehavior. There’s less respect for the process. Where the truth is not the goal, the truth is not what emerges. And what it is, is simply another adversary contest in which the contending parties are trying to win. So I think the exclusionary rules play into this increasing culture of misconduct that we have among our attorneys who practice in the criminal law. I think there’s nothing that so impairs the integrity of a process as this profusion of exclusionary rules, which is partly based on the Constitution as the Supreme Court has interpreted in the Fourth, Fifth, and Sixth Amendments, partly based on procedural rules. I mean, we’re excluding evidence now where the reason for it is bizarre, and which could be changed by legislation; it doesn’t require constitutional change.
HEFFNER: But aren’t you talking about a basic philosophical change too? You used the term “adversarial system.” And doesn’t this reflect your sense of… disdain? Maybe that’s too strong a word. Disdain, though I would use…. toward the notion that this is a battle, it is a contest. You’re searching for truth; you’re not saying you don’t want to see which side wins. You want to have the truth prevail.
ROTHWAX: I’m not necessarily opposed to the adversarial system in itself. It seems to me a good defense attorney, that is a defense attorney who’s energetic, who’s prepared, who’s thorough, who’s committed, who’s motivated, but who is ethical and who insists upon living within the law while he practices his profession, assures the integrity of the process. And it seems to me when I’ve had fine attorneys try cases — all too rarely, but when I’ve had it — it is truly a pleasure to watch. I mean, it’s really almost an exalted situation. Where the attorneys bring the artistry of their questioning, where they can probe without screaming, without emotion, without all kinds of mannerisms and poses, but where they’re skilled advocates and they try their case, then they serve the purposes of justice. And we would want each side to be tested by the other side. So long as that’s done with respect for the process, with respect for the truth that it is seeking to encourage and have as a result, then it seems to me we can live within an adversary system.
Our problem is that the judges are too passive, the lawyers are too aggressive, the system has ceased to have respect because we’ve excluded so much truth by the time we get to the trial that it has become more and more of a game and more and more of a sporting contest. And that’s the distressing thing about it.
HEFFNER: Well, it’s a blood sport too.
ROTHWAX: Very much so. I mean, during the year I was writing this book, I was on a mailing list of bar associations. And it’s regrettable that the bar associations don’t write about the ethics of lawyers. Let’s have a large meeting about the ethics of lawyers or lawyers who misbehave. They have lectures on winning and how you can kill your opponent with cross-examination and so on.
HEFFNER: Judge Rothwax, within our contemporary culture, where winning is not just something, it’s everything, where we have a kind of Darwinian and Adam Smithian approach to life, how likely is it that this adversarial thing, shtick, is going to be modified as you would like it to be in your search for truth?
ROTHWAX: I think the American public was shocked and appalled by the O.J. Simpson case, by the behavior of the lawyers on both sides, and by the weakness and passivity, the permissiveness, if you will, of Judge Ito. And it seems to me that there is a feeling abroad in the land that you cannot trust this system. That this system simply will not work for you. That there are too many other things that go on, too many other factors that have prominence and become decisive. So that the truth and the merits of a case get lost somewhere.
I feel there’s a yearning for a system that we can have respect for. I mean, my initial interest in having cameras in the courts was that somehow the American public would see the way this system worked, and that they would be proud of that system, that they would be able to see lawyers doing their job properly, seriously, thoughtfully, appropriately, and that would be fine. I even favored cameras in the courtroom in the O.J. Simpson case so that we could see how badly the system worked. If we’re ever going to have change, it seems to me, we have to have a window into this system so that the public is admitted into that precinct and they can make their mind up on it.
HEFFNER: Well, I didn’t bring up cameras in the courts [Laughter], which is something you and I disagree upon always and still do.
ROTHWAX: [Laughter] Yes, I know. I know.
HEFFNER: But you may remember and have dismissed my sense when we first talked about cameras in the courts and you first spoke, as you did now, that with judges like Rothwax on the bench, the need for control of the situation, the need for conducting the trial in the public view, could only be achieved by a certain small percentage of the judges, the best ones. You did it, and you did it to the fare-the-well. And it was something that everyone could be proud of. But do you still feel, after what you’ve just said about the O.J. Simpson trial, that this is something that would, on a broad scale, add to the luster of the criminal justice system?
ROTHWAX: No. I’m hoping that if you see something like O.J. Simpson it will foster a desire for change and modification within the profession, hopefully, within the public at large if need be.
HEFFNER: Instead of just shoulder-shrugging and, “that’s the courts, they’re guilty of collapsing.”
ROTHWAX: I don’t have an answer, Dick. It seems to me that the public has been excluded. They feel the law is too complex for them to understand. All they know is that they visit and view, observe results in our system every day, results that are hard to justify by any standard, and I think they feel that they’re losing respect for and trust in the system, and that we have to do something to change it. I’ve devoted my life to this system. I have enormous respect for it. This book is written out of idealism; not out of cynicism. Out of a feeling that we are dealing with the most important thing in a democratic society: we’re dealing with the location where the government acts upon the individual with the intent, often, to deprive him of liberty and sometimes of life. Nothing should be more sacred, more important, more deserving of our respect, more expressive of our values than the criminal justice system. And it is distressing in the extreme that we have fallen so far short of this in our substantive law, in our procedural law, among our professionals, among the judiciary. It is a crisis. And we’re not acting responsively and resolutely to change it.
HEFFNER: Other areas of change that you feel…
ROTHWAX: Well, I mention in the book, I think it’s foolish that we shouldn’t be able to comment upon a defendant’s failure to testify in his own trial. I mean, Dennis Fung in the O.J. Simpson case is on the stand for nine days, and O.J. Simpson not at all? That seems to me absurd. If a defendant is given an opportunity to explain or deny his participation in a crime, and he is given that opportunity only after he has heard all of the evidence against him in an open court represented by counsel in a recorded proceeding, and he chooses not to explain or deny, then it seems to me it’s permissible to draw an adverse inference from that, that he chooses not to do this because he can’t do it.
HEFFNER: But how far would you go? Would you impose upon the judge the opportunity or the obligation to say to the jury that the refusal of the defendant to participate in his own trial in this way can be taken…
ROTHWAX: Oh, yes. It would have to be a permissive inference. You would have to tell the jury that the jury can draw, they’re not obligated to draw…
HEFFNER: Why say anything?
ROTHWAX: What’s that?
HEFFNER: Why say anything?
ROTHWAX: You mean just be still about it?
ROTHWAX: Well, because…
HEFFNER: Your objection has been that the judge has come in and said…
ROTHWAX: The judge has said, “you may not draw any adverse inference.”
HEFFNER: Right. Right.
ROTHWAX: England, by the way, has changed that in the last year. They now permit the judges to speak to the jury, and to tell them to draw an adverse inference. Not only that, but in their warnings at the time the defendant is arrested, in England they now tell the defendant that if he refuses to answer questions, his refusal now to answer questions may very well be considered by a jury at a later time.
HEFFNER: But, you see, Judge Rothwax, again I come back to the question, “may be considered.” That’s one thing. And it flies in the face of the judges who now say, “may not be considered.” The question I raise about whether you wouldn’t, is whether you wouldn’t accept the notion that nothing be said about that, and that the jurors, who are people of common sense…
ROTHWAX: Well, I’d certainly prefer that nothing be said about it rather than the system we have now. I prefer a system where the judge is able to, in away, instruct the jury on the law that relates to this, and hopefully guide them in an informed way. I mean, the role of the judge is to give the law to the jury. They apply it to the facts as they find them. And we do this, by the way, and we do it now. We have presumptions that say a jury may draw certain inferences from a defendant’s silence. If you have recent and exclusive possession of stolen property, one may reasonably conclude that’s because you stole it. Okay? It’s not a leap of faith. That’s an inference that we permit the jury to draw now. But inexplicably we say you can’t do it if the defendant otherwise remains silent.
HEFFNER: Is it an inference that you as a judge can instruct?
ROTHWAX: Oh, yes. And I do instruct them on it in the appropriate case. Yeah.
HEFFNER: I’ve interrupted you. And we just have a few minutes left.
ROTHWAX: Well, I wanted to say that I suggest changes in the discovery proceeding. I find it outrageous now that the, we want a level playing field, we want both sides to be able to be prepared, but what happens in almost every case is the people give over all of their evidence to the defendant, and the defendant gives nothing back. So the defendant is constantly surprising the people, the trial, with his defense, after the people have disclosed everything. Now I have a proposal in there to rectify that, so that the defendant will not be able to abuse or misuse the discovery that he receives. I think there are many procedures that I address in the book, and the speedy trial statutes are foolish. So that O.J. Simpson, in a very complicated case, could require the State of California to move him to trial in 90 days. And he used that tactically. He said, “let’s go for trial within 90 days because the people won’t be able to prepare their case fully, and we’ll get them by surprise, we’ll get them unaware, we’ll get them unprepared.” Now, that kind of thing is foolish. There’s no reason why, when the case is complex, the state should not have a decent, reasonable interval to prepare their case. Well, a lot of these statutes need rethinking and revisiting so that we can modify them in the light of our experience with them. It’s common sense that we ought to do that.
HEFFNER: You know, as I sit here, and our time is running out, I think to myself, “doggonit, I’ve asked Harold Rothwax to list the points that he makes here, that you sum up at the end of the book,” and I don’t want anybody to think that there is not so much more in reading this book, because it, I won’t say it reads like a murder mystery, but the case histories that you relate here make your points in a way that I think probably a few people have made available to them before. Point I wanted to make is to ask you, or wanted to ask you about, hasn’t the O.J. Simpson case, in a sense, been a bonanza for the ideas that you want the public to deal with?
ROTHWAX: I think so. I think it was so shocking and so upsetting, it had such an impact, I think, on the country as a whole, that I think there is a greater receptiveness to these ideas now because there is a feeling that the system simply isn’t working well.
HEFFNER: There seem to be those, however, in the judiciary, who feel that there is not enough respect for our traditions. In Guilty: The Collapse of Criminal Justice, I find just the opposite; I find that the idealism that you express is overwhelming. As you said, what you’re complaining about, what you’re criticizing stems from your real belief in the need for the search for truth.
ROTHWAX: Absolutely. Yeah. I think we do a service whenever we criticize a system. It’s a way of expressing devotion to that system. It’s a way of expressing a feeling that this can be better, that we can do better than we are doing. And that’s what I’ve tried to do. As I say, the response has been far more affirmative than I would have expected, from lawyers and from academics as well, as well as from the public at large. I don’t know if I told you that the Parade magazine had done a large piece on this, and they got 30,000 responses from their leadership, which I gather is extraordinary in publishing…
HEFFNER: And I gather most of them in favor of.
ROTHWAX: Highly favorable, yes.
HEFFNER: Judge Rothwax, I really appreciate your coming back today, and hope that the fact that the hardcover edition of the book has been out for a year doesn’t stop people from now from buying Guilty: The Collapse of Criminal Justice in the soft-cover edition. Thanks for joining me again.
ROTHWAX: Thanks for having me again.
HEFFNER: And thanks too, to you in the audience. I hope you join us again next time. And if you would like a transcript of today’s program, please send $4 in check or money order to: The Open Mind, P.O. Box 7977, FDR Station, New York, NY 10150.
Meanwhile, as another old friend used to say, “Good night, and good luck.”