Mr. District Attorney … Robert M. Morgenthau

THE OPEN MIND
Host: Richard D. Heffner
Guest: Robert Morgenthau
Title: “Mr. District Attorney…Robert M. Morgenthau”
VTR: 4/8/97

HEFFNER: I’m Richard Heffner, your host on THE OPEN MIND, and throughout the 1980s and now the 1990s today’s guest has been generous enough to join me at this table every few years to discuss the subjects that continue to loom largest in the concerns of most Americans…or, and or…it is the most appropriate subject for him imaginable, for Robert M. Morgenthau has been Manhattan’s intrepid district attorney for more than two decades now. He served there as United States attorney before then, and overall has enjoyed, perhaps, America’s most distinguished career in law enforcement.

Of course, drugs have always loomed largest in our discussions of law and order over these years, and I would begin our program today by asking District Attorney Morgenthau if that is still the case, and if we must assume that it will be, as he hopefully joins me again and again in the years to come. What do you think?

MORGENTHAU: I think that drugs are probably the number one social and law enforcement problem. I’m an optimist, or I wouldn’t stay in this business, so hopefully it will be a little better in six or eight years, or whatever you invite me back again, but I wouldn’t count on it. It’s a many-sided problem, drugs. People are always looking for easy answers, and there aren’t any easy answers to the drug problem. It takes a many-faceted approach, of which law enforcement is one part, but it’s also treatment, it’s education, it’s general societal views toward the problem.

HEFFNER: When William F. Buckley came on this program, oh, about a year ago, maybe a little less, he expressed the opinion that we should get to the point in which we say that we’ve lost the war against drugs, we’ve lost the battle, and should legalize or decriminalize. What’s your own fix on that?

MORGENTHAU: Well, the problem is that it’s a very destructive, it’s a very destructive instrument, drugs; and how you protect the children who are going to be born addicted even more than they are now, if you legalize drugs…how do protect the grandparents who are…by their grandchildren? I just…somebody said that every difficult problem has an easy answer and that it’s usually wrong. I think that applies to legalizing drugs. I don’t think that’s any answer, from my standpoint. In some ways it would be a very convenient answer, because it would take a lot of law enforcement off my plate, but what I come down to is, if someone comes to us and says, “Look, drugs are being sold in my building, on my floor, on the street corner where my kids have to pass on the way to school, and in my children’s school”, I can’t say to them “We’ll just legalize it”, or “Hey, be patient and we’ll treat those people”. They want immediate relief. And the only relief that you can give them that’s immediate is to have those drug gangs investigated, prosecuted, and removed from the street. Now, that may sound like a harsh answer, but until we find a better one, it’s the only answer that I know of.

HEFFNER: Of course, I wouldn’t have expected…a couple of years ago I knew that when Buckley came here that he had been pushing decriminalization or legalization. I wouldn’t have expected as a conservative person, and as thoughtful and as reasonable a person as Buckley is…he makes the point that we have lost the war. Now, maybe you’ve answered my question about that by saying you’re an optimist and that if you weren’t an optimist you wouldn’t be in this business.

MORGENTHAU: I mean, we are doing somewhat better. Well enough? No, absolutely not. But the use of drugs is coming down somewhat. That’s why this is somewhat a safer city than it was ten years ago. I mean in Washington Heights, seven or eight years ago, 125 homicides in that one section, in one precinct. It’s divided into two precincts now, but last year there were 38. And most of the drug…most of the murders…but there’s been significant progress. Is it enough progress? Certainly not. But we’re making progress, and there is an understanding that the use of drugs is a slow, and sometimes a quick way to death. So I see some progress. I’m not satisfied with it, and I’m not going to predict that it’s going to be over. I think the answer to that has to be “no”. But I think that if we want people to go into treatment there has to be an incentive. One of those incentives is that you will be going to jail. So you’ve got to keep that…you’ve got to keep the jail door open or a lot of people who should go into treatment will not go. It’s a part of education, too. It’s not enough to say “Drugs aren’t good for you. You shouldn’t use them”. They’ve also got to see what happens if you do use them. One of the things that happens is you make get sick, you may get shot, but you may also go to jail or prison. So I think that in a sense it’s a many-sided problem, and there’s no one answer to it. But I think we have to use all of the things, all the weapons at our disposal; education, societal pressure, law enforcement…I think we’re going to bring it down. We are bringing it down.

HEFFNER: By and large, are the right people going to jail?

MORGENTHAU: Yuh. Absolutely.

HEFFNER: Then you see progress along those lines. That’s a plus, because let’s think to Bill Buckley, I mean, saying that we’ve lost the war.

MORGENTHAU: Bill Buckley is a very intelligent and a very persuasive fellow. But that doesn’t mean he’s always right.

HEFFNER: Alright, let’s chalk that up to his being wrong. I have a whole series of things that I want to do, ask you about. Since the last time you were here, so many of these have developed into major issues: of course, the question of crime and the punishment of crime; and the whole question of capital punishment. I know you have gone through this in the state of New York. Capital punishment is now back on the books – in a limited way, but back on the books. What’s your own feeling about that?

MORGENTHAU: Well, I’m a believer in prompt and certain punishment. I think that’s the most important aspect of law enforcement. People who commit crimes have got to know that they are going to be arrested, prosecuted, convicted, and if appropriate, sent to prison. And that’s much more important than how long they’re sentenced for, or in the remote verdict, that they’re executed or they get life without parole. Everybody has been surprised by how few times capital punishment has been applied, and I’ve noted that two of the strongest advocates of capital punishment in the state, the district attorney of Westchester County and the Attorney General…and they’ve been up to bat in capital cases and in both cases they’ve elected not to seek capital punishment. So I think that the use of capital punishment…it’s a utility that’s greatly overestimated.

HEFFNER: As you look around the country, in many states now, in many states that do employ capital punishment; do they provide sustenance for the report of your observations or do they indicate something different?

MORGENTHAU: No, I think it’s being applied, but there’s absolutely no indication in the states that choose it, that there have been any reduction in the murder rates. In fact, the states with the highest murder rates have capital punishment. So this goes back for generations. I don’t think that anybody’s ever established that capital punishment deters crime.

HEFFNER: Why are we, then, being subjected to these campaigns for the reinstitution of capital punishment?

MORGENTHAU: Good question. Good question. You know, in England pickpockets were subject to capital punishment and at the hangings the pickpockets were extremely active. I think that there are a lot of good people out there who really think that capital punishment is going to deter crime. They also think that it’s a just punishment, and in some cases it may be a just punishment. But does it deter crime? I don’t think that there’s any evidence that it does.

HEFFNER: You said before that your major concern in terms of punishment that it be swift and certain.

MORGENTHAU: Right.

HEFFNER: And I gather that…those are the last things that capital punishment is.

MORGENTHAU: That’s right, because jurors, judges, public officials will all, understandably, lean over backward when somebody’s life is at stake. So even the juror who has no problem with sending somebody away for life when you talk about capital punishment, that juror is going to think twice of three times. The same thing with the public courts, the same thing with governors. It’s going to be a matter of serious concern with them, when somebody’s life is at stake.

HEFFNER: Talking about punishment, but moving away from capital punishment…mandatory sentencing: Is this something that you as a district attorney, you as an observer of this process for so many years, feel is appropriate? Or do you oppose it, too?

MORGENTHAU: Well, unfortunately there are judges who are more concerned about moving their caseload than they are about the appropriateness of a particular sentence. So I think that mandatory sentences play an important role. Now…

HEFFNER: Plus…a positive role.

MORGENTHAU: Positive. I mean, there are times when they may seem unduly harsh. But I think overall, that mandatory sentencing is a good thing.

HEFFNER: What are the changes in the criminal justice system that you would like to see occur?

MORGENTHAU: Well, for instance, in the criminal court which handles misdemeanors, crimes punishable for one year…there are so few judges sitting now and available, that it’s impossible to try a case, and I think that’s very bad. It’s bad for everybody, to turn the court into an administrative proceeding, which is what we’re doing. So I would like to see enough judges on the bench so we can try a reasonable number of cases. We can’t now. I would like to see testing for drugs, and everybody arrested for felony…urine testing. That way we could get a good idea of what drugs are being used, how many of the defendants are using them, what kind of crimes they’re committing now…that’s been done in the District of Columbia for fifteen years. It was challenged on Constitutional grounds and lost. I’d like to see that. I think it would be a very important way…how many defendants are on drugs, what kind of drugs…See, what happens now is that you get a drug treatment program, a defendant’s in custody and you ask him “Were you on drugs?” And he knows that if he says “yes” he’s going to get into a treatment program. “Are you on drugs?” “I’m on drugs”. But you don’t know if he really is or not. So, I’d like to see it done up front. It’s relatively inexpensive, and I think very important, and I think would lead to more treatment for people who really need it.

HEFFNER: Is the District of Columbia the only jurisdiction where this is mandatory?

MORGENTHAU: That I know of, yes. And it’s worked out extremely well there.

HEFFNER: Again, the influence of drugs…again, the question of drugs now…You ask, you make the point of the need for more judges, and you’re talking about, of course, New York. Is the same kind of pressure present in other states? Do we find that the resources are such in other jurisdictions that there aren’t enough judges, perhaps not enough prosecutors, perhaps not enough…

MORGENTHAU: I think it varies. But I mean, certainly as the trend has been to put more police on the street, more arrests, other parts of the system have not gotten the same addition of resources. I can’t tell you what’s going on in Arizona, to be specific, but I think it’s a general trend to get more cops on the street, more arrests, but now a way to try the defendants once they’ve been arrested. And I think it’s very dangerous not to have trials. I think it’s the kind of thing that leads to corruption. A police officer makes an arrest and knows that his case will never be tried and he will never have to testify in court; it’s going to lead him to be careless. Defense lawyers are going to be careless. We’re going to be careless. I think we need the showcase of a case on trial with an arresting officer testifying, witnesses testifying. I think that’s very important. We’re not getting that now.

HEFFNER: When the trials do take place, when you do have them with the speed that you look for, tell me about your sense of the value system of the jury as it is now in the Constitution.

MORGENTHAU: I’m a believer in the jury system. Not that I think it’s perfect; it’s an imperfect vehicle, but I think it’s the best way of deciding cases. I would over the long run always put my faith in the jury system. I wouldn’t have judges try cases without juries.

HEFFNER: And you say that as an official. You say that as the D.A.

MORGENTHAU: As the D.A. and as a private citizen. The jury system is not perfect, but it’s the best way we have of resolving criminal cases.

HEFFNER: You wouldn’t take more cases and let the judges make the decision? You wouldn’t take minor cases?

MORGENTHAU: Well, they now, they now…some can elect to be tried by a judge and not a jury.

HEFFNER: Um hum.

MORGENTHAU: Uh, and, the lesser misdemeanors…there doesn’t have to be a jury, but I’m finding the jury system is a very important part of the fairness of the democratic system.

HEFFNER: And what about the number of jurors required to convict a person? Still unanimous? Is that your…

MORGENTHAU: Yeah, I must say…every now and then I say ten to two should be adequate…and that’s what they’ve gone over to in England, you know, 10-2 in criminal cases. But I think I’d stick with the…

HEFFNER: Why?

MORGENTHAU: Let’s put it this way: When you take somebody’s liberty away from them as you can in a criminal case, then I think you ought to give them every safeguard. And certainly a unanimous decision is a safeguard. It’s frustrating to us in many times, but…

HEFFNER: By “us” you mean the prosecutors…

MORGENTHAU: …the prosecutors. And the public. The public gets frustrated when they see somebody that looks guilty and it’s a hung jury. But I think I’d stay with it.

HEFFNER: Now, one of the other aspects of this whole business of crime and punishment, law and order, etc. of course, and one you know I’m very interested in, is the matter of cameras in the courts.

MORGENTHAU: Yuh.

HEFFNER: Have you taken a position on the appropriateness of cameras in the courts?

MORGENTHAU: Well, what we’ve said is that we’ll allow cameras in the courts where witnesses will not object. We don’t want to see cameras in the courtroom if a witness is unwilling to testify or concerned about testifying.

HEFFNER: You mean that ends the presence of cameras? That doesn’t mean that the camera isn’t there when the witness…

MORGENTHAU: No, that’s when the witness…

HEFFNER: I see.

MORGENTHAU: …I think that’s a…you’ve got to protect them. And so, you know, it’s a balancing between the public’s right to know and the right of witnesses to privacy.

HEFFNER: To what extent do you think what has gone on in New York State now, I’ll be very provincial, has justified the concerns of some people, maybe just on the question of, the matter of witnesses? The concerns about the “intrusion” if I may use that word…

MORGENTHAU: The right to privacy is the other side of it. I can see where witness, because of fear of their life, or in a rape case, or…I can see where people don’t want to be on television.

HEFFNER: But, now, someone else would say, Steve Brill, despite the fact that he’s no longer going to be running Court TV, would say, “Well, the witness may not want to, but this is for the well-being of society”. How do you respond to that?

MORGENTHAU: I think the witnesses’ rights are paramount. We had a situation with (???) Walker (???)…and there were some people who thought her name and picture should be put on the air, the news media, but her family didn’t want it released. And as it turned out, of course, the attacker was identified without, without her picture being released. And it’s meant that she can, you know, walk into a supermarket or a restaurant and nobody knows who she is. Where if her picture was in the newspapers and on a TV station, she’d have absolutely no privacy.

HEFFNER: Are you satisfied…we have about three minutes left…are you satisfied with…about the jury system, we talked about the jury system…are you satisfied with the ways in which we select our judges? I need to talk about New York now…I’m sure there are all means and manners of forms and selection throughout the United States.

MORGENTHAU: Well, it’s not a perfect system, but I think that it works out reasonably well. You know, you have two systems here in New York. You have the electoral system, and you have the commissions appointed by the governor and the mayor who select them. It depends upon the good faith of the appointing houses, but I think that…I think we’ve done reasonably well.

HEFFNER: Would you choose one over the other?

MORGENTHAU: No that’s one of those things that…I should be able to answer that question, but I don’t know. There are times when I say the electoral system is for the birds, and there are times when I say the appointment system is for the birds. So I…

HEFFNER: Depends on the judge you have worried about as gotten there.

MORGENTHAU: Well, yeah, it depends…what kind of faith I have…that kind of question…again, there’s no easy answer.

HEFFNER: You know, the question that occurs to most people is whether the drop in crime statistics that we’ve experienced and reported on so much in the last couple of years; whether it’s true that…the number of students, academic students, sociologists essentially, criminologists, have said that we have to gear up for a…in the population that provides us with the most problems in terms of crimes committed in the fairly near future. Is this something that you believe too?

MORGENTHAU: I don’t know the answer. All I can say is that those criminologists did not predict the reduction in crime, so I don’t know if we should give any great weight to their predictions of the increase.

HEFFNER: Now, come on, come on Mr. District Attorney. Is that really enough of an answer? They didn’t know, but do you think…

MORGENTHAU: I don’t think they know now, and I don’t know. I did not foresee the significant drop in crime. And so now you’re asking me if I think there is going to be a significant increase, and I don’t know the answer to that. If I did, I would tell you. But all I can say is that in Manhattan, which is New York County, we’re back in 1960. We had a bigger drop in crime than any other city or part of the state. What do I attribute that to? In part, at least, to our prompt and certain punishment and our concentration on drug gangs, which was a disproportionate measure of crime. The only answer? No. But those were two key things, and I think that if we keep doing that, keep after the young, highly active drug dealers and criminals, I think we’re going to keep crime down.

HEFFNER: No wonder Mr. Morgenthau, Mr. District Attorney said in the beginning that you were an optimist. If you weren’t you wouldn’t be in this business, and I want to thank you for joining me again on THE OPEN MIND. Don’t forget, we have to discuss these same things and see which way these things go a few years from now.

MORGENTHAU: I’m available.

HEFFNER: Thanks. And thanks, too, to you in the audience. I hope you join us again next time. And if would like a transcript of today’s program, please send $4.00 in check or money order to THE OPEN MIND, P.O. Box 7977, F.D.R. Station, New York, NY 10150.

Meanwhile, as another old friend used to say, “Good night, and good luck”.

Continuing production of THE OPEN MIND has been made possible by grants from The Rosalind P. Walter Foundation; The M. Weiner Foundation of New Jersey; The Thomas and Theresa Mullarkey Foundation; The New York Times Company Foundation; and from the corporate community, Ruder-Finn.