Order in the Courts, Part II

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

I’m Richard Heffner, your host on THE OPEN MIND. And this is the third of a series of programs with today’s guest. The first was on cameras in the courts, which he now embraces, though only when they are first approved by and then kept under the strict supervision of a presiding Trial Judge. Which seems appropriate, of course, for Judge Harold J. Rothwax is New York’s brilliant, tough-minded, acting Supreme Court Judge who presided over the Joel Steinberg trial, sometimes in full view of a nationwide television audience. But we went on last time from cameras to the larger matter of order in our courts, of justice delayed, denied, avoided, evaded, too often lost somewhere in the vast maw of procedural nightmares and personal limitations. So, let’s go right on now with this rap sheet on America’s criminal justice system. I do appreciate your staying, Judge Rothwax, and I, I want to begin with a criticism that has been offered, not of the judicial system, but of Rothwax. Some have said, “He’s been on the bench so long that he has become almost a second prosecutor”. And I know that you, on the other hand, feel that one of the troubles with our judicial system, or our criminal justice system is that there is a leaning in the direction, or in favor of the defendant. What’s your comment?

Rothwax: Well, I want to deny that I’m a second prosecutor. I am, very much, wedded to the idea that a judge is not a potted plant, that a judge has a role to play. You know, the American justice system, as opposed to the systems in Europe, is one in which the American judge is supposed to play a much more passive role than the European judge would play, or even the English judge. But he does have an obligation and a role to see that the rules are abided by in his courtroom, and that things move along efficiently, and without unnecessary delay, and in accordance with the rules. So I would deny that I am a second prosecutor, although I am a person who plays an active role if I feel that things that are going on in courtroom should not be going on in the courtroom. Now there are some things about our system that I think in ways do aid the defendant. To some extent they may even be structural. You should know, you may well know, that under our system when a defendant is acquitted, there can be no appeal by the prosecutor, and I agree with that, I find no fault with it. But what it means is that all appeals, in criminal cases, are brought by defendants, who have been convicted after crime. It is always the defendant in the appellate process complaining about the prosecutor, or the prosecution’s case. And never the prosecutor who is complaining about defense behavior and defense conduct and tactics and approaches. And in a way that builds in a system whereby it is always one side that is being constantly reviewed, and the other side that is being insufficiently reviewed, and I think that creates problems. The other problem grows out of our adversary system, and the adversary system, in my view, is a good system. And I’m not attacking it frontally, I’m not asking that it be done away with. Properly administered, properly employed, in an adversary system you have two advocates, the prosecutor and the defense attorney contending against each other. And the idea is that from this contention, truth will emerge. And often it does. I think one problem is that one of the sides, the prosecutor, is obliged under the canons of ethics to seek truth. That is his role, he is a truth-seeker. He is not to seek convictions, he is to seek convictions only if they further the search for truth and justice. He is an agent of justice in effect. The defense attorney has a much narrower role, an important role, a role I’m not criticizing. He is to be the spokesman for the accused against the power of the state; he is to say, for that individual, everything that can be said for him, so that we can be satisfied when the proceeding is over, that that proceeding had integrity, that we can have confidence in the result. And, therefore, a defense lawyer assures the integrity of the process if he does his job properly. And then there are canons of ethics, the defense lawyer is encouraged to be zealous and vigorous and outspoken and creative and thorough and aggressive. And he is not to seek the truth. He is to do, for his client, whatever can be done for him, within the law. So we have a system that posits that we will seek the truth under the adversary system, where one of the parties is not seeking the truth. Okay. I don’t mean that he is seeking nefarious goals. And we’re telling that party who’s not seeking the truth to act zealously and vigorously, and to some extent the adversary process therefore encourages, I think, sometimes, excesses, going beyond what the rules technically allow. And that creates abuses within our system.

Heffner: Judge Rothwax i…there’s one thing I don’t understand. There was a hint of this in our last program, more than a hint of this now. You keep saying, “I’m not being that critical. I’m not rejecting…” whether it’s the exclusionary rule process or whether it is the adversary system. But you offer an awfully good, a damn good, indictment of the process. How…what other results than what we get could possibly come out of a situation as you have just described?

Rothwax: Well, I’m not clear what you’re saying…in terms of the last broadcast in which we discussed the Fourth and Fifth Amendments, I indicated that i felt that some expansions or extensions of those privileges, those Amendments, were inappropriate and could properly be modified. And basically what I’m saying with regard to the adversary system, is largely the same. I’m saying that if the system worked as it was intended to work, with the advocates not engaging in excesses to which, to some extent the adversary system lends itself, then the system would work far better than it now works.

Heffner: Don’t you build in what you now call excesses, those excesses, in the very description of the roles…of the respective roles of the prosecutor and the defending attorney?

Rothwax: No, I think the reason why we have the excesses is to a large extent attributable to the judiciary, which has taken far too passive a role in the way it monitors and controls the system. It allows, I think, those excesses to go unpunished. To some extent that is probably truer in State Courts than in Federal Courts. In the State Courts, they’re not. They come up for reelection or for reappointment and the defense attorneys have taken a very active, and organized role in the process of reappointment and reelection. They’re on screening committees, they’re active in Bar Associations and the judges, to some extent, I think, may be wary of making enemies among the defense bar, to the degree that the judge is passive or that the judge is unwilling to assert his prerogatives, in terms of running the courtroom, he encourages that kind of excess. A judge who, I think, runs his courtroom and doesn’t allow others to fill that vacuum, will not have that problem. I’ve just said before that judges get the lawyers they deserve. If they tolerate those kinds of excesses, and those kinds of behaviors, they get them. If they don’t, they probably won’t get them.

Heffner: Of course, we’re right back now to the point at which we arrived in our discussion of cameras in the courts. A good, strong, smart judge supervising the cameras in the courts, it’s likely to work well. But aren’t you describing a situation now that is not likely to exist in the American judicial system? A system that does not, at all points, perhaps not at most points, put a premium upon the kinds of judges who will do what you want a judge to do.

Rothwax: Well, the system is, as I think I pointed out before, far better than it used to be. The system, when I first entered the practice of law, in the late 1950s, was far more controlled by politics, and who one knew. It is far more a merit selection process now than it was at that time. So I think the quality of judges we have now are far better. I think you have many more people who are coming on the bench as a career. They’re coming on much earlier in their careers. Of late now, we’re getting many, many judges in their late thirties and early forties, who are expecting to spend all of their mature years on the bench instead of being an encomium that you receive at the time of retirement. So I think we have a higher quality bench, and I think we have a more vigorous bench than we’ve had previously. And I think we may reasonably expect more from them. But, when all is said and done, the criminal justice system is a system that’s administered by people, and it can be no better than the people who adminster it. So there has to be a continuing emphasis upon the quality and the dedication of the people we get, and then we have to indicate to them, once they’re on the bench, what the powers are that they can exercise, and how they ought to exercise them. I think that many of our judges are too reluctant and too careful and too timid sometimes in the way that they exercise the powers that have been given to them.

Heffner: Yes, but you also indicate why in what you’ve just said here, and in this interview with you in Vanity Fair…”A lot of judges are not strict, you ask for the hearing…suppression hearing…you get a hearing. They want to be nice guys, the judges. They don’t want to create controversy, they don’t want to be appealed. Judges are weak, judges are sloppy, judges want to be loved, judges come up for reappointment…”, which is the point I think you were touching on now, “and defense lawyers have committees that review them. And judges may be lazy, whatever it may be. And if…” and the author puts in “sleaze” begins with that, and it begins with that, and it grows. We’re talking about human beings in an adversary situation that seems set up perfectly for the kind of thing you deplore. A prosecutor who is limited to a search for truth, and a defendant’s counsel who is limited, indeed, to give as vigorous and maybe even as obstreperous a defense of his client as possible.

Rothwax: What’s your question? (Laughter)

Heffner: (Laughter) The question is why don’t you…I know what my question is, Judge…

Rothwax: (Laughter)

Heffner: I know perfectly well.

Rothwax: Okay.

Heffner: Why defend, to the last, a system that seems, of necessity, seems of necessity, to produce this kind of situation.

Rothwax: Well I think my own studies, as well as the studies of others that I’m familiar with, have indicated to me that the adversary system has more promise than the inquisitorial system, which prevails in most of Western Europe. That a vigorous contest will more likely elicit facts, than where there is no contest, and one person is simply seeking the truth, without having adequate input from contending parties. So it is my sense, it may well be that it’s parochial because I have only been exposed, really, to the adversary system, but I guess i would paraphrase Churchill, that we go with democracy because it seems, with all its faults, preferable to the alternatives. And it seems to me that, on reflection, I stick with the adversary system, although I’m very critical of what I call its excesses.

Heffner: You said before, “I don’t think the judge needs to be a potted plant”. You said that you aren’t.

Rothwax: That’s right.

Heffner: I know perfectly well that you’re not. But it does seem, in terms of what you have said about reappointment, or reelection that the potted plant is the safer judge. Is that fair?

Rothwax: It’s not unfair. The potted plant is the safer judge. The judge who does not make waves, who goes along, who tends to be passive, may very well have an easier task when the time comes to be reappointed than a different kind of judge. That’s a possibility, that exists to some extent. I don’t wish to deny that. On the other hand, a lot of people who become judges, even under this system, have pride in their work, they have independence, they have strength, they want to be admired, they want to be respected by their colleagues, and many of them do emerge. So I think it would be a false picture to draw from what I’ve said that it is the passive judge, or the lazy judge, that is predominant. I don’t believe that that is so. I think also with getting a lot of young judges that we’re getting now we’re getting a great infusion of idealism, that a lot of these young judges are coming in full of the ideals of the system, and wanting to make it work, and full of the energy that would get us there, and I think that they’re bringing that, too.

Heffner: Judge Rothwax, let’s posit, let’s assume a lot of young judges, let’s assume a lot of judges who feel the way you feel they will, and do, and the way you do, what is being done with the defense bar to bring it up to snuff, so that it doesn’t’ abuse the privileges that the adversary system does give it?

Rothwax: Well, it’s interesting. I testified just a few weeks ago, at the Association of the Bar, our largest bar association here in New York, about just these kinds of abuses, and apparently a number of the lawyers on the committee had sent out a questionnaire to a number of judges, to ask the judges whether or not they thought there was a large degree of defense and prosecutorial abuse. And got a fairly significant response from the judiciary, and decided to hold public hearings. And as a result of that, quite a number of judges and quite a number of practitioners appeared before the Bar Association to speak about it. So I think that’s one good focus, that at least the defense bar seems to be alert to the fact that the judges are increasingly critical of some of the behaviors in which they’re engaging. And they seem to be somewhat responsive. By the way, there was criticism also of the prosecutors as well, some of the things that they’re not doing as well as they ought to be doing. And so I think the bar associations may take a more active role. If they do, that will probably find its way, ultimately, into the Code of Professional Responsibility, the ethical considerations by which the lawyers are bound. So I’m hopeful that this kind of public attention, public focus, public discussion, more active judges, will temper the excesses of some of the defense bar.

Heffner: Whenever there are doctors here I manage to get on to the subject of professional ethics, and the self-policing that the medical profession does or doesn’t do. How do you rank the legal profession in this area, with the medical profession. More concerned with self-regulation, self-policing, doing more about it? Doing less? Doing nothing?

Rothwax: I’m really not an expert on the medical profession and how it polices its own. I can tell you that the way we police lawyers, it seems to me, is quite inadequate.. For the most part I follow what we do and we generally content ourselves with disbarring those lawyers who have been convicted of crimes. With regard to the kinds of excesses that I’m talking about, in the courtroom, failure to appear, failure to communicate, defying judges’ orders, and so on, the disciplinary committees of the bar associations and of the appellate divisions that are responsible for watching over lawyers have been understaffed, have inadequate resources, have been delayed in their processing of those kinds of complaints and have not been, in my view, effective in the way they have acted toward lawyers. That has come under a great deal of scrutiny here in New York, of late and I would expect, we’ve just gotten a new head of our disciplinary committee in New York that there will be renewed vigor in that regard. But as of this point in time, we had not had, I think, effective review of the lawyers. And one of the problems has been that judges have tended to refer to disciplinary committees this kind of a complaint, when it seems to me that, to a large extent, they should be undertaking themselves, to control the lawyers in their courtroom. A disciplinary committee has too much to do to deal with the failure of a lawyer to show up in court on a particular day. It’s too miniscule, it’s too minor for a disciplinary committee to deal. But a judge should be able to deal effectively with that, and I’m hoping that this kind of focus will encourage judges to play a more active role in controlling their courtroom, and demanding of lawyers that they adhere to the standards that may properly be demanded of them.

Heffner: Someday I’d like to pursue that further with you…I’m not going to do that now because we only have ten, twelve minutes left, and I want to get on to the question of punishment. Not quite, but almost the Gilbert and Sullivan refrain, “Let the punishment fit the crime”. What is your own sense of what you want the function, the reason, the result of punishment to be?

Rothwax: To answer that I have to go back one step, to tell you that criminal conduct is a mix of an act and a state of mind. The act alone would not make the event criminal. It’s the two together. So when we’re punishing a person for what we claim is criminal, in effect we’re saying, “We’re punishing you for what you have done, we’re holding you morally responsible”, and basically I am a person who believes in the retributive theory of punishment. I believe that vengeance has gotten a bad name. And the reason I feel that is that it seems to me we show respect for a person, for his personhood, when we say that “You have acted in a morally repugnant fashion. That you are capable of moral action, that you have chosen to do the wrong thing and we’re going to punish you for that”. I think retribution is often misunderstood. Commonly you think of it as an eye for an eye, and if you evaluate that phrase, if you examine that phrase for a moment, you’ll see that there’s equivalence and proportionality there. It’s not an eye for a scratch, or a scratch for an eye. It says that there must be a relationship between the crime that’s been committed and the punishment that is imposed for that crime. In a way, that phrase “an eye for an eye” imposes limitations on punishment. It requires that there be proportion between the crime and the punishment. That is often put at opposites with the rehabilitative theory, which denies, in effect that a person has done something morally wrong, but argues, instead, that a person who commits a crime is a sick individual, who is not morally responsible, who should not be punished but who should, instead, be healed. And it seems to me that that is a profoundly undemocratic idea, because in a democratic society, there is no one way to behave. The criminal law simply requires of you, all that our democratic society requires of you is that you conform your behavior with the law. It should not, in a democratic society, ask anything more of you. To import into our law ideas of rehabilitation, where we say the criminal is sick and must be healed, is to in a way say we know what healing is, we know what wellness is, we know how a person should be. And in a democratic society we don’t’ know how a person should be. So I feel very strongly that we must insist that the act that a person engages in is central to the punishment which follows. And that the vengeance which I, or the retribution which I, have indicated is the proper goal of punishment will give a society confidence that a person is being punished properly, appropriately, proportionately, with the act that he has done. I don’t’ know if that fully answers your question.

Heffner: It doesn’t bother you when someone then says, “Vengeance is mine, sayeth the Lord”, and the Lord only?

Rothwax: Judges are given an awful lot of god-like powers. Not because they are gods by any means. They’re given, for example, in fixing bail we have to predict the future and say whether a person will return or not. We can’t predict the future. We don’t predict the future because we can, we predict the future because we must. And just as we do that in bail, we must do it in sentencing. I can’t predict the future as to whether a person will commit a crime again or not. When I impose a sentence, I impose a sentence because it is my obligation and responsibility to impose a sentence. When I predict the future in fixing bail, I do it because I must do it, not because I can do it. So we have god-like powers, it is true, even though we are not god-like. Hopefully that will encourage us, with that awareness, to be somewhat humble, and aware of our limitations, and not overwhelmed by obligations that we have to carry out. But we do these things because we have to, because society demands that they be done, that somebody have the responsibility for doing them.

Heffner: Does “an eye for an eye, a tooth for a tooth” mean for you “a life for a life”? Do you believe in capital punishment?

Rothwax: I don’t believe in capital punishment.

Heffner: Why not?

Rothwax: But interestingly I don’t…not for moral reasons, okay. From a morality point of view…I don’t know how much time we have left, and it’s a complicated subject…it doesn’t bother me, morally, to take a life for a life. It bothers me for a variety of other, practical reasons. One, the discretion that’s utilized in terms of how…determining how charges will be brought. Practical considerations in terms of mistakes that can be made. If you take a life, you can’t correct that mistake. Problems in terms of the way the system is altered when the crime which is being adjudicated is a crime that carries a death sentence. So, consistently with what I’ve said, from a moral point of view, it wouldn’t upset me, if a fellow who killed mindlessly or with viciousness, a number of people, received the death penalty. But I have other problems with the death penalty, which ultimately bring me down opposed to it.

Heffner: There’s so many things in what you’ve just said that I’d like to pick up, and run with, and we have three minutes left, but one in particular, you’re suggesting that what goes on in the courtroom is modified by the presence of the absence of a death penalty. I don’t understand that.

Rothwax: Well, it’s clear that in those jurisdictions where you have a death penalty, the nature of the process itself is affected. That is, there’s much more glare, there’s much more publicity, there’s much more attention being paid to it…the process goes on for many more years because the Appellate courts all view it more carefully. And the death penalty, very often, is not imposed for ten or fifteen years after it’s imposed, and there seems something, I guess, heartless about it. I suppose the intent was to modify and to be sure that we’re acting correctly, but even I believe Chief Judge Rehnquist has said, “If we can’t do it any better than this, then we ought to stop doing it”. Maybe I’m wrong about Rehnquist, I think it may have been former Justice Powell of the Supreme Court, who has been acting on behalf of the Supreme Court in studying the administration of the death penalty. And who said that this is not a system that is working properly, and if we can’t make it work properly, perhaps we ought to do away with it altogether.

Heffner: Do you think that perhaps it is a system that’s not working properly because there is no fundamental agreement in our fifty states on the matter of a death penalty?

Rothwax: Well I think perhaps that’s true. The public is fairly divided. Certainly the legal profession, itself, is even more firmly divided on the issue of capital punishment. It’s interesting, the public is divided about the whole system of criminal justice. On the one hand we want it to protect us, and on the other hand, we want it to protect us from the state. We want to be protected from the criminal and we want to be protected from the state. And that’s a dichotomy in the criminal law administration that we haven’t resolved even in our own individual person. We have a relative who gets arrested, and we want the rights of the defendant to protect us against the all powerful state. We have a relative who is injured in a crime and we want the society to be able to act effectively and powerfully against the wrong-doer. And it’s that split feeling about the criminal justice system which, it seems to me, explains a great deal of the difficulty that we have with criminal justice.

Heffner: Are you optimistic? Pessimistic? Neither of the above about the future of our system?

Rothwax: I think our system works relatively well, all things considered. I think it has a lot of problems with it that can be worked upon and improved upon. I’m…I wouldn’t throw myself optimistic, but I’m not discouraged by the system.

Heffner: Judge Harold Rothwax, it’s clear we could go on and on and on, and I’d like to, so you’ve got to promise me to come back for more programs…

Rothwax: I will.

Heffner: …in the future. Thanks so much for joining me today.

Rothwax: Okay.

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, my guest, the topics we’ve discussed, please write to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts send $2.00 in check or money order. Meanwhile, as another old friend used to say, “Good night and good luck.”

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