Here Comes the Judge, Part II

GUEST: Judge Harold Rothwax
VTR: 3/25/1991

I’m Richard Heffner, your host on THE OPEN MIND, which I began last week by noting that whenever court officers in the New York State Supreme Court pronounce the equivalent of “Here comes the Judge”, and the Honorable Harold Rothwax appears on the bench, every prosecutor, every defense attorney, each accused person present knows full well that presiding there and then is one of the toughest-minded, most skillful, most accomplished, most demanding judges in our nation’s criminal justice system.

Harold Rothwax has said here “I am very wedded to the idea that a judge is not a potted plant, that a judge has a role to play”. And, since even off the bench Judge Rothwax has no difficulty at all rendering opinions about America’s criminal justice system, I want to begin today’s program by asking him whether the recent spate of police brutality incidents may make it likely that even more judicial limitations will be placed upon police power, that which is appropriate, as well as that which too readily becomes abusive. In the present atmosphere will it be ever harder for the criminal justice system to function efficiently and effectively when the constable blunders? Judge Rothwax?

Rothwax: Well, of course, you’re referring to the recent incidents in Los Angeles and some of the incidents here in New York…

Heffner: And presumably in many other parts of our country.

Rothwax: Well, those are not really blunders in my view. Those are really willful transgressions, deliberate and intentional violations of the law. They’re in effect, criminal acts, and in that kind of a situation, I think the law has always been clear that it’s not permissible and it will be punished. I think insofar as these acts effect the public perception of police officers, it will probably make it more difficult for jurors in cases involving these kinds of allegations to accept, uncritically, police testimony that they acted with restraint and did not exercise excessive force. I don’t…I, I think it probably will, also, slow a readiness to modify some of the exclusionary rules we’ve had. You know, “the constable has blundered” is a phrase that was used by Judge Cardozo in the early 1930s when he rejected the exclusionary rule in New York. He said we shouldn’t allow the criminal to go free because the constable has blundered, the constable has made a mistake. Now a mistake is very different than what was done in Los Angeles, as I’ve indicated. My concern is that the exclusionary rule today really applies whether the officer has acted willfully as in the case in Los Angeles, or whether he’s acted in good faith, but has made a technical error. It applies whether the officer has violated rules grossly and knowingly and intentionally, or whether he’s done everything he can to make his behavior comply with rules and regulations, but has been found, on afterthought, to be in error. And I think one of the problems with the exclusionary rules that the courts have right now is their lack of proportionality. However serious the crime, however minimal the police blunder or mistake may be, the evidence is always excluded. And, I guess my concern about this would be twofold…one, that officers who willfully violate the law not only should have evidence that is recovered excluded from evidence, which I think is appropriate, but also that they be independently punished for their criminal acts. They should be subject to the criminal law in the same way that anybody else is. I am, however, very much concerned that this will slow or impede our willingness to review and re-think some of the exclusionary rules that now apply.

Heffner: It’s interesting to me that you employ the word “proportionality” and that’s a word that’s used so frequently when we think about punishment…

Rothwax: Yes.

Heffner: …and your concern here, if I understand it correctly, is that the courts themselves, perhaps more importantly the appellate courts, will react out of proportion…

Rothwax: Yes.

Heffner: …to what has been happening.

Rothwax: Yes, I’m concerned about that. I think they will react out of proportion and I think they’ll be slower to re-think or re-consider whether or not, for example, we ought to adopt or import into our law a good faith basis for police. I, I would think right now that what we ought to be doing is saying “if officers act with subjective good faith and with objective reasonableness, even if they make a technical error, the evidence ought to be admitted”. Generally the exclusionary rule was based on a feeling that police officers should not be able to profit from their wrong-doing. That if they consciously behave in a wrongful fashion, they should not derive any benefit from that. They should be denied the benefit by the evidence being excluded from evidence.

Heffner: But it’s so interesting you say that the notion was that police officers should not benefit from wrong-doing. Yet it is the State, if I may, it is the citizenry that suffers, not the police officer when the exclusionary rule prevents a criminal from being convicted on that ground.

Rothwax: Exactly…and that’s why Cardozo who was deemed a Liberal jurist…a person who very strongly believed in the Constitution said it’s foolish, it’s, it’s a contradiction in terms to allow a criminal to go free because somebody has made a mistake. What has one thing got to do with another? Now, it’s justifiable, in a way. When, when the Supreme Court finally imposed the exclusionary rule on all of the states, it did so because it was observing increasing instances of willful police misconduct, and it said we simply cannot tolerate that any longer. Now, it seems to me the law has become so intolerably confusing, so difficult for anybody to know what it is, that a police officer can, with complete good faith, being well-informed, trying his very hardest to do the right thing, make a technical error, and as a result of that, a murderer may go free. And that seems to make no sense at all, but it’s very, very hard to have the legal profession or the courts re-examine those concepts.

Heffner: Why? You have said, I know, that when you teach it’s perfectly understandable, among our students, that they should question and perhaps reject the Ten Commandments, but to question the Bill of Rights or the Fifth Amendment, or the Sixth or the Fourth is beyond their ken. Why?

Rothwax: Well, I think with students, at least, they, they’re idealistic as they should be and they’ve grown up in the belief that the first ten amendments to the Constitution are a Bill of Rights…I mean that phrase has rings and has a resonance, that, that tugs at the heart strings. There are lots of phrases in our law that have just gotten a good name, Bill of Rights, and the presumption of innocence and you feel somehow more decent and more civilized when you believe in them and it’s sort of very hard to go against them. I think with, with…in terms of defense attorneys or civil libertarians, they have very often an economic interest or an institutional interest or a fixed point of view which keeps them attached to that kind of a thing.

Heffner: And appellate judges?

Rothwax: Well I think appellate judges also, depending on the community from which they come, many of them run for…or have run for election out of, out of liberal districts and they want to be considered as liberal jurists. They want to be applauded by the profession as a whole, and if they come down against these things, they feel they may be criticized, that perhaps they may not be re-elected. To some extent they follow the decisions of the US Supreme Court in, in imposing these things upon the states, and so they’re in a sense obliged to follow many of the rules that are handed down by the US Supreme Court. The problem is that there’s such a richness in variety of cases that arise that the principles have become so numerous, so conflicting, that it becomes almost impossible to know what the law is. And it’s impossible now in the area of search and seizure law, for example, for the police officer most often to know what the right thing to do is, and very often impossible even for the appellate judges to know. If you’ll forgive me, just a brief elaboration on this. Last year in Manhattan there was an appellate court that had to pass upon a search and seizure issue involving two defendants who had both been convicted, who had made a motion to suppress, and the motion to suppress had been denied, and they’d been sentenced to lengthy prison terms. The appeals were perfected at different times, so one defendant came up before one group of five judges in the appellate division, and as luck would have it, another defendant came up before another group of five judges in the appellate division. The issues were exactly the same. The evidence was exactly the same. The testimony was…they were two identical cases…and one group of five judges decided it one way, unanimously, and the other group of five judges decided it the other way unanimously! Now when you reach a stage in your jurisprudence where appellate judges cannot know what the law is upon reflection, then for sheer, by stronger reason, we’ve reached a point in that jurisprudence where a police officer, who must react instantaneously on the street can barely guess at what the right thing is to do. And I’m not talking about arcane examples of the law. I’m talking about street situations in which police officers are required to respond quickly. Some years ago, ten years ago, I had an occasion to give a lecture to appellate judges from all over the country on recent developments in search and seizure law. And on that occasion the Supreme Court had come down with two decisions earlier in the week, a day or two days before I was to give the lecture, so a lot of judges had not the opportunity to read the Supreme Court decisions as otherwise they would have. And I gave them the facts in those two cases, and I asked them how they would have voted in that situation. And 80% of them would have voted opposite to the way the Supreme Court decided those two cases. Now that’s a state of the law which is basically chaotic and basically the application of the search and seizure principles has become more like a lottery than anything else. It’s no longer a principled application of rules to given fact situation.

Heffner: It was old Henry Wriston who said, “Rules make decision easy, but they rob it of wisdom”. Are we beset here by too many appellate jurisdictions, too may courts issuing too many final commands?

Rothwax: I think we’re, we’re in a situation where the appellate courts often have to rule upon areas where the police have acted in an objectively reasonable way, but there are principles previously laid down that require them to exclude evidence, and they try to find ways around that, so they make exceptions to principles, and then exceptions on exceptions, and after a while it becomes unintelligible. I have specialized in search and seizure all my life. That’s been my area of specialization. And I no longer can anticipate what an appellate court will do with an issue that I send up to them. And very often when I decide this issue at the trial level, I cannot do so with confidence that I’m applying these principles accurately and in a way that will ultimately be acceptable to an appellate court. And that’s an intolerable way for a criminal law system to operate. I mean its basic tenet ought to be that the law is clear and that the police officer, in carrying out the law, knows what to do. It’s foolish to punish him if he cannot know what to do, if the direction is not obvious to him. And it would seem to me that we could be moving in a better direction if we worked with the concept of reasonableness than working in an arcane system of, of competing and overlapping principles.

Heffner: It is…

Rothwax: Yeah?

Heffner: I’m sorry…I just wonder…if it’s fair to say that your experience then…experience then in your years on the bench indicate that the rule of reason would be a better guide, sweet reasonableness…you’re not concerned that it would be determined in one way here and another way there because you’re saying that’s what happens anyway.

Rothwax: Exactly. See, if you had a rule of reasonableness, the officer could in effect say, “I know of certain basic principles…what…how shall I reasonably interpret them?” That’s something the police officer can think about and relate to. We use that kind of a principle in tort law where we deal with injuries to people. And it’s worked quite well for us…what would a person have done, what would a reasonable person have done under these circumstances? It seems to me it’s also applicable to police officers in this kind of an area. A number of European jurisdictions…I think basically follow that same principle…they’ll say they’ll exclude evidence where the police officer has acted in an obviously egregious way…obviously acted in a way that is beyond the scope of what a reasonable officer could do. But if he’s acted within a reasonable scope, that they will allow the evidence to come in, and that would indeed import in our search and seizure law a concept of proportionality, so that violent, serious offenders would not go free simply because a good faith mistake had been made by a police officer. That’s destructive of a meaningful system of law. It’s destructive of respect for law, and it seems to me it’s destructive of the morale of police officers and even of judges who cannot know, in fact, very often what they’re doing. The Supreme Court itself has indicated that this area of the law is, to use their phrase, “intolerably confusing”. “Intolerably confusing”. And I know there have been some studies that show that…I think in 17 cases that came up between 1983 and 1985, the Supreme Court had to render 61 separate opinions in order to decide those 17 cases. That is the judges themselves couldn’t agree. There would often be 3 or 4 opinions between the judges on the Supreme Court.

Heffner: Judge Rothwax, if the rule of reason or reasonableness were to prevail, do you think that there would have been fewer, disparate decisions or opinions?

Rothwax: I do, yes. I very much do think so.

Heffner: And you think that we are capable, using such a rule, using such a rule of thumb, reasonableness, to come out ahead in this…

Rothwax: Oh, yes…

Heffner: …in this confrontation.

Rothwax: Yes.

Heffner: Then I have to ask you whether, in your years on the bench, you talked for…a moment ago, about limitations upon the police, and upon the confusions that the policeman must experience…the constable…when he’s not blundering…

Rothwax: Right.

Heffner: …must still experience. Is it your experience in observing the police that reasonableness among these men and women would result in less conflict, less confusion?

Rothwax: Absolutely. The police have tried, I think, very hard, in the light of many of these decisions that have come down, Miranda, search and seizure and so, in their training programs, to inculcate the proper behaviors and where the law is clear, they do a wonderful job. For example, in the area of identification various rules have been set up on how to handle a line-up so that it is not suggestive. It’s a fair line-up and the observation made by the victim is, is one that gives a fair opportunity to the victim to pick out the culprit and gives the culprit a fair line-up to be chosen from. In that kind of a situation the police behave superbly. Even in the Miranda area, where the rules are clear that you must impose…you must provide certain instructions, or warnings to defendants. The cops carry around with them the card that requires the warnings, with forms that the defendant shall sign acknowledging that he’s been given the warning and that he’s answered in a particular way and he signs the warning. So where they’ve been given clear directions and clear paths to follow, they have been very quick to do that because they don’t want very much to make arrests that will result in convictions where the convictions will be upheld. In the search and seizure area, however, they…the direction has been muddled and it’s been very hard for the police officers to follow with the same clarity that they’re able to do in the areas of identification and in the areas of confession.

Heffner: Well you say they don’t want to make the kinds of arrests that will be overturned, understandably, that will lead to convictions that will themselves be overturned. How do you explain then, how do we, how do we identify the root cause for the distrust and the cop-bashing that must in part lead to the proliferation of confusion, confusing rules here?

Rothwax: Well I think we started this program by your pointing out the incident in Los Angeles and New York and so on. You always have occasions where there is police misbehavior, as you have misbehavior with any group, in any area of life. And I think they get enormous attention and publicity and always suggest the possibility that it may be endemic and not individual to a couple of officers and that creates a suspicion. So I think you get those, very often the rules grow out of the egregious misbehavior, even though that may not be the common thread of police conduct. My own experience with police officers is that for most of them they’re professional. They take pride in their profession. They want to do the job the right way. They’re basically fair-minded individuals, and for the most part they do a fairly good job. But obviously the…there are instances where police do misbehave and often, when they do misbehave it’s egregious misbehavior that gains much publicity.

Heffner: Yes, but in our last program you talked about a culture of misconduct…

Rothwax: Yes.

Heffner: …when we’re talking about defense attorneys. There must be a kind of culture of distrust that goes beyond the matter of what happened in Los Angeles or what happened in New York or what happened in Des Moines, or wherever there are incidents to which people can point, incidents involving perhaps law breaking by the law officers. Doesn’t it seem to you that there is something in our culture that leads us first and foremost to be suspicious of authority and to put the limitations that the courts have imposed…?

Rothwax: I’m all in favor of being suspicious of authority. If an authority can take away our liberty and put us away, then it seems to me that we ought to be suspicious of authority.

Heffner: That’s what your friends Dershowitz and Litman said.

Rothwax: I’m all in favor of it. I’m simply saying that while we ought to be very much concerned with that we also ought to be concerned with an effective criminal justice system that prevents us, that protects us from criminals who will act violently against us, to want the government to be restrained in its ability to control our lives, but we also want them to be able to effect…act effectively to protect us against people who would maraud against us. Now one of the differences between police officers and criminal defense attorneys…there are probably a number of them…but the police officers who cross the line, often have people who scream, yell, point fingers and they’re suspended, they’re subjected to police trials and so on. There is no similar corrective for defense attorneys whose bar associations are made up of people who are quite supportive and uncritical, who don’t engage in peer review, who don’t engage in criticism sessions in which they point out “No, you shouldn’t have done that”. So the police are subject to effective control. The defense attorneys at least at this point in time, in my view, have not been exposed to effective control.

Heffner: I don’t want to get from cop-bashing into defense attorney-bashing. Let me ask you about other peoples, other places, other countries, other criminal justice systems. Do they, do they embrace what you would consider a more reasonable approach to the police, defense, exclusion and so on?

Rothwax: I…I may have mentioned to you on another occasion I once had a…the Law Chief Justice of England sitting next to me during an ABA session here in New York and he observed a motion to suppress that was going on in front of me involving an old man who had been found with three machine guns and silencers and 500 rounds of ammunition, and as I…I could sense his discomfort as this was going on and I turned to him and I said, “Is there any movement in England toward adopting the exclusionary rule in regard to search and seizure?” to which he responded “Not while I breathe”.

Heffner: (Laughter)

Rothwax: And, and it’s, it’s true I think that only in the United States does the exclusionary rule reach the degree that it has. Other countries, such as Canada, some European countries as I’ve indicated are working with an exclusionary rule, not where the constable has blundered, but where the constable has willfully transgressed. Now that it seems to me is the way we should be moving…that where a police officer willfully violates the law, we should deny him the fruits of his misbehavior. Where he has done all he can, within his power, to operate within the law then it seems to me we only hurt ourselves by denying the evidence during a criminal trial.

Heffner: Forgive me, Judge Rothwax, but it seems to me we haven’t yet touched on a reasonable reason, if you’ll forgive me, for being ourselves, in this nation, so wrapped up in procedures, attitudes, motions that are without reasons and that are, if not without reason that lead to such negative consequences in terms of protecting society. How do we, how do we really explain that? You’ve described…

Rothwax: I don’t count myself an expert…I think we grew out of a revolution against the tyranny…we, we’ve been very much concerned not to allow that to happen again and we’ve built in lots of protections, may of which work wonderfully and should be fully retained, others of which , it seems to me, ought to be re-examined. We love the intricacies of the law. When I was going to become a lawyer, my father was so proud that I would now be working with all kinds of technical details and technical principles that result in all kids of strange and wonderful results. I mean if you look at television now there’s a profusion of legal programs. We have a fascination with this, with the game playing, with the surprise…I think there’s an endless fascination with it. I don’t think the public at large, however, really explores, or is mindful of, or aware of the impact that some of these doctrines have on an individual case. So I think we, we love the technical interaction that the law provides us with. I think we feel confident that our legal system will protect us against overreaching and unfair and oppressive government, as it does. But I think that this is a very complicated mechanism and it’s alright if we tinker with it to make sure that it’s running smoothly.

Heffner: And yet…in just the minute or so that we have left, we have to observe that there is so much criticism of this, of this system.

Rothwax: Well, on the one had we want the system to protect us in the event that we’re arrested. On the other hand, we want the system to protect us against the other person who gets arrested. So there’s sort of a contradiction there. We want the system to be available to protect us or our loved ones if they become enmeshed in it. On the other hand we want to make sure the system goes out and arrests those evil criminals elsewhere. And I think there is a duality in our approach to the criminal law and that we have not reconciled it fully.

Heffner: And, just at the end, you bring up…you use the word “play” or “games”, “play games”, just as the…at the end of our last program, the notion of playing games came up…you seem to feel that that’s a basic problem. We look at it as game playing.

Rothwax: Absolutely. It’s the contest that, that makes this popular on television and in movies…one side against the other…it’s like a sporting contest and we bring that into the courtroom in a way that often is inappropriate and detrimental to the operation of the justice system.

Heffner: Isn’t that otherwise known as the “adversarial system”?

Rothwax: That is the adversarial system. Not as it should be, but as it is.

Heffner: Some day we must discuss the philosophy of the adversarial system…adversary system… Judge Harold Rothwax, thank you so much for joining me again on THE OPEN MIND.

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 $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 Edythe and Dean Dowling Foundation; The New York Times Company Foundation; The Richard Lounsbery Foundation; and, from the corporate community, Mutual of America.