Here Comes the Judge, Part I

THE OPEN MIND
Host: Richard D. Heffner
Guest: Judge Harold Rothwax
Title: “Here Comes the Judge…”, Part I
VTR: 3/25/91

I’m Richard Heffner, your host on THE OPEN MIND, where we have often, at great length, and with grave concern, examined the quest for justice in America, the adequacy of our legal system, the glories and the limitations of our judiciary, the wisdom of the adversarial posture, tension between punishment as retribution or as rehabilitation, and so on.

Well, two years ago some of these persistent, seemingly eternal concerns surfaced on my OPEN MIND discussions with a distinguished jurist who has always intrigued and sometimes disturbed those who have traced his career on the bench with his insistence, as he put it here: “I am very much wedded to the idea that a judge is not a potted plant, that a judge has a role to play”.

Indeed, when 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. No potted plant he!

Well, even off the bench Judge Rothwax has no difficulty rendering opinions about the law in America. And I want first today to solicit one from him on the obvious delight two recent OPEN MIND guests seemed to take in tweaking our criminal justice system: Its prosecutors, its judges, indeed the whole apparatus designed by the State to apprehend, convict and punish those accused of criminal acts. Preeminent members of the American Bar, both Alan Dershowitz and Jack Litman seemed to characterize jousting with our criminal justice system as less a personal imperative than a social necessity, with people like Judge Harold Rothwax perhaps the most redoubtable representatives of a Leviathan States. And so, Judge Rothwax, I would begin asking you as a former defense attorney what you think about this posture concerning the, the negative role of the State, the overwhelming role of the State?

Rothwax: Well, I think the criminal justice system is very much focused on the need to restrain repressive government and in embodying the first ten amendments to the constitution the founders were very much concerned to put limits on government. They had revolted against a tyranny. They were determined that a tyranny would not again establish itself on this continent. And so, rightfully, the criminal justice system was tethered to certain limitations that controlled its ability to be oppressive, and properly so. I think what we have to understand, however, is that a criminal justice system, properly considered must attend to two competing concerns…it must be fair, which would be the concern of Professor Dershowitz and Mr. Litman, and it must be effective…that it must be able to do its job. It must be able to apprehend, try and if those persons are guilty, punish criminals. So the system must be both fair and effective. And I think what, what perhaps Professor Dershowitz and Jack Litman and many others don’t understand is that those two concepts are “in tension” with one another. As a system becomes more fair, it becomes less efficient. As it becomes more efficient, it becomes less fair. So what we’re always concerned with is that balance, that tension, between them. And we have to understand, I think, that whenever we propose a change or modification in what we have now, either in the direction of fairness or efficiency, that there is inevitably and reluctantly, invariably a trade off. And one must always weigh the consequence, the impact, on the other side of the equation. If you’re trying to be, make a system more fair, what will its impact and its consequences be on the efficiency, and the effectiveness of that system? I think defense lawyers are single-minded. They’re bred to be single-minded and that’s okay. Their role is, in effect, to put the government to it proof and to test it. My concern with that is that sometimes their zeal be comes excessive…it exceeds the bound s of law and becomes, I suppose…obtains a life of its own. And it’s been my sense, in the past five to ten years that I’ve seen a marked change…where I rarely try a case now where a defense attorney does not undertake to exceed the bounds, to test the judiciary, to try and, and exceed what is a proper and appropriate for a defense counsel to do. Mind you, I’m not opposed to zealous counsel…zealous defense counsel assures the integrity of the process. What I’m opposed to is the excess, not to the zeal. And increasingly what I observe among many defense attorneys is a pride in the excess, a pride in the benefits that accrue to that excess sometimes. And what I sense is that the defense bar often applauds the excess. It does not discipline it. It does not criticize it. It does not seek to retrain it. And, as a result, it’s been my perception, over the past decade, that we have an increasingly…a defense bar that increasingly appears to be engaging in what I would say is a manifestation of a culture of misconduct, an environment in which defense misbehavior is countenanced, encouraged, tolerated so that it becomes almost a “norm” of behavior. And that, it seems to me, is something that we very rightly have to be concerned about.

Heffner: That’s a nice turn of phrase, a “culture of misconduct”. How do you account for it? You, you refer to the past decade…why in the last decade?

Rothwax: I think in part because defense lawyers are required most often to defend guilty people. Our system is such that we’ve tried to weed out, at every stage of the proceedings, those against whom there is not sufficient evidence. So that every defendant who goes to trial, has pretty much been found, through the process which has preceded the trial, to be probably guilty. He may or may not be guilty, but the evidence suggests that he is probably guilty…if he’s not probably guilty, we don’t bring him to trial. And I think even somebody like Professor Dershowitz ahs acknowledged that 90% or more of the time he is representing people he knows to be guilty,. Now that puts a pressure on a defense attorney, who may very often be paid a large amount of money to represent a person who he knows is guilty. And if, in fact the parties that they’re representing are guilty, then they’re anti-social, I suppose, by definition, and they want the proper result…the result that’s favorable to them. And so I think there’s pressure put on defense attorneys to test the bounds, and sometimes to go beyond the bounds.

Heffner: But that was always true.

Rothwax: Yes, I think added to that now is that the Bar Association seems to be less concerned with the infractions. I think the media, in many ways, programs like “L.A. Law”, movies like “Suspect”, in which lawyers do absurd things and they’re presented to the public as though it is reasonable and proper and appropriate, create an aura that this kind of a thing is to be expected. In this most recent movie…I don’t know whether it’s appropriate on this program to name a movie, but in a recent movie, the famous Hollywood actress played the role of a public defender, representing a man accused of murder. And in that particular case she undertook to have some kind of an affair with one of the jurors on the case. I may be especially resentful of that movie because the judge in that case turned out to be the murderer. The fact is that many law students never get to court. Their image of the profession is what they see on television and what they see in the movies, and the movies and the television, perhaps because they want to emphasize the dramatic…often go beyond proper bounds, and, and it seems to me that he attorneys pick this up. They get approval from their profession. The judges have not been effective in restraining them. The grievance committees are not effective in restraining them, and it seems to me if you don’t restrain misbehavior it grows. And I think that’s why we’ve had it.

Heffner: Judge Rothwax, that leads me to say “my goodness, you must be shrugging your shoulders…” In the first place now I understand why, when I called you the other night and I was watching “L.A. Law” you…

Rothwax: (Laughter)

Heffner: …shrugged that off. But you have to then say, if you’re going to be logical and consistent…it is going downhill and it’s going to continue to go downhill. What hope do you see for the criminal justice system then?

Rothwax: Well, I don’t see any hope for this particular aspect of the criminal justice system unless the judges begin to perceive this as a very serious attack upon the rules and procedures of the criminal justice system which basically and ultimately will affect its integrity as a process. If lawyers can do things that are inappropriate and derive benefit from it, it’s only reasonable to assume that they will continue to do it. And it seems to me it’s the role of the judges to control that. The judges, in a sense, get the lawyers they deserve. And if they don’t control misbehavior, then they’ll have it. So in many ways I hold the judges responsible, just as I hold the defense lawyers responsible.

Heffner: Then, as one looks into the future, again, it’s a very grim, grim prospect for us. And, of course, on the other side, Messrs. Dershowitz and Litman are identifying you…not you personally, but the judiciary with the State and maintain that the accused has very little chance, except perhaps when represented by Dershowitz or Litman, to prevail with the Leviathan State and the judges all arraigned, if I may use that word, against the defendant.

Rothwax: Well, I don’t think it’s true on a number of bases. And not on personal bases, either. I think most judges, although employed and paid by the State, want very much to reach a result that is fair and correct and represents the truth of the matter. I think most judges perceive of themselves as fair and want to be fair. A case comes before me; my purpose is to do the right thing, not to convict a person who is innocent by any means. So I think it’s a misstatement to say that judges come down hard on, on lawyers. I don’t think there’s any greater pleasure that any judge has than to have two fine lawyers in front of him abiding by the rules and displaying advocacy at its very best. That is, indeed, one of the great pleasure s that a judge can have in presiding over a trial. So I think it’s a misrepresentation for Litman and Dershowitz to say, I haven’t heard them say it, but I accept your word for it, that judges as a class are biased against them. Except insofar as judges are mindful, as I’ve already indicated, that when a case goes to trial a defendant has already, in effect, been found to be probably guilty. Now, of course, we know he must be found guilty beyond a reasonable doubt. But there has been a winnowing process, which seeks to throw out of the system, discard from the system those cases where there is not a probability of guilt. So a Grand Jury must determine that there is sufficient evidence to charge a person…a preliminary hearing determines whether there’s a probably cause to believe that a crime has been committed, and the defendant has committed it. There is a, a winnowing system which allows only those cases where a determination has been made that there is a probability of guilt, and in that sense, I suppose a judge begins with a belief that there is a substantial amount of evidence against the defendant at the time that the trial begins. But although judges my have opinions about that, it seems to me clear that judges don’t display that to a jury, and also they have to be very mindful of the record they make if Appellate Courts will not ultimately reverse them. So, it’s not my…if what is being said is that courts begin biased and partial and that it’s impossible to obtain a fair trial, I would think that that is a base canard.

Heffner: I think it’s fair to say it is because I didn’t mean to imply that they said that judges, as a class, are against them. What they seemed to be saying is that the State, with all of the mechanisms at its control…the police, the prosecutor, and the judges who are part of the State, too, set up a barrier that is so difficult to overcome except as they use the devices…

Rothwax: On the contrary…

Heffner: …that they do use and you oppose.

Rothwax: …on the contrary. If anything, I think, our system has now moved, over the past 20 or 30 years, to a system where, if anything, the defendant is favored far more than the State is.

Heffner: I’d like you to talk about that.

Rothwax: Alright. I’d like to talk about it.

Heffner: If I’m not a good straight man…

Rothwax: (Laughter)

Heffner: …I don’t know what I am.

Rothwax: Most citizens think of a trial as a search for the truth. And in a way, a trial is a search for the truth. But it’s not only a search for the truth. In law a trial is a search for the truth under the rules of law and truth in the criminal law has never been the sole objective…we’ve always been concerned as I’ve indicated to show that the process is fair and that government is restrained. So we require, for example, that the prosecutor prove guilt and we impose no burden upon the defendant, we clothe him with a presumption of innocence. We impose a very high burden of proof in criminal cases on a prosecutor. A prosecutor must prove guilt beyond a reasonable doubt. That means that if a jury concludes that a defendant is probably guilty but there’s a reasonable doubt, they must acquit that defendant. Nobody is ever found innocent in our system. People are found “not guilty”…if effect, not proven. So we impose a very high burden of proof.

Heffner: Would you have it otherwise, by the way?

Rothwax: No, I’m not, I’m not attacking that aspect of it. I’m satisfied that where a person’s liberty may be taken from him…that there ought to be a high burden of proof. We ought to be satisfied that we’re not making a mistake. And we ought to bend over backwards in that regard. So I’m not complaining about that. But this is just the beginning of the pantheon of protections, and some of them I do have problems with, if you’ll permit me to go on. We require unanimity of verdicts, and in the past six months I can tell you I’ve tried two murder cases, where the evidence, in my judgment was literally overwhelming. Within an hour of the beginning of deliberations 11 jurors had determined that, that the defendant was guilty, and the twelfth juror had simply said “Well, I refuse to participate in the process, or I don’t want to become involved”. The twelfth juror happened to have been basically a disturbed individual who didn’t want to become involved with the deliberative process. Now that requirement of unanimity is very limiting in a way…

Heffner: Would you have that be otherwise?

Rothwax: I would…I would be willing to entertain that, yes. I think there are some…the Federal Constitution does not require unanimity. It has upheld 11 to 1 verdicts. It has upheld 10 to 2 verdicts and it seems to me that civilized countries can do that…civilized jurisprudence can have that. So I would like to explore reducing that. Some years ago the former Secretary of Labor was on trial and the twelfth juror…the jury retired to deliberate…within 15 minutes the twelfth juror had a nervous breakdown and had to be removed from the jury room in a straight jacket…and…after a 6 month trial…and it seems to me that the cost of this is so extraordinary, that so long as you’re requiring unanimity of 11, that’s sufficient. If…I mean I suppose that one out of every 10 people in New York has a problem mentally anyway, and to expect that you have 12 mentally healthy individuals all of whom are prepared to participate may be more than we can reasonably expect now. But unanimity is another requirement that we, we require of the prosecutor…he must prove beyond a reasonable doubt the guilt of a defendant…he must satisfy 12 jurors unanimously…not 11 at this point in time, and I’m not sure I wouldn’t modify that a little. At least I’d…it would be something I would like to explore and to discuss further. Go beyond that…in addition the burden of proof, the burden of unanimity; we also have numerous privileges and you have to realize the privileges exclude the truth. We have the attorney-client privilege, we have the husband-wife privilege, the doctor-patient privilege, the priest-penitent privilege. We have the privilege against compulsory self-incrimination. All of these privileges have the effect of keeping from a jury evidence which might otherwise be before them. In addition to the privileges, and I can come back to some of these if you’d like…

Heffner: Well, of course, you k now I’m going to raise the question again. Would you have it otherwise?

Rothwax: I would like to explore some of it…yes. I would like to modify the Fifth Amendment privilege against self-incrimination at some level, and I’d be happy to discuss that with you in a few moments if you’d like. Let me go on with it, however, in response to your initial question. In addition to these privileges we have in New York now between 20 and 30 pre-trial motions which seek to exclude evidence on the grounds of suggestive identifications, arrests without warrants, arrests without probably cause, statements that have been obtained without the Miranda warnings being given, between 20 and 30 motions to exclude reliable and probative evidence so that the jury can never hear it. And if all of that wasn’t enough, Dick, if we didn’t have the privileges and we didn’t have all of these exclusions, we have various procedural rules which require…we have speedy trial statutes, we have a requirement now of what we call notice statues…prosecutor must given notice of the intent to introduce statements of identification evidence within 15 days…and if the prosecutor doesn’t give notice within 15 days of his intent to use that statement, he may be precluded from using a statement. I just had a case last week, murder case, where a district attorney did not learn until 25 days after the arraignment, from a police officer who was on vacation at the time of arraignment, that the defendant had made a statement…so he did not give notice within 15 days of his intent to use that statement, and now he’s precluded from using a voluntary statement, obtained incompliance with Constitutional requirements that is very probative and relevant, that is evidence of a defendant’s guilt and he cannot introduce e it before a jury and a jury can never hear it. Add to that, don’t stop there…a discovery system that provides almost total disclosure to the defendant and no, or very little, reciprocal disclosure to the prosecutor. So that at the time that a trial begins the defendant has access to the entire…almost the entire file of a prosecutor and we’re giving that to a defendant who presumably, if he can rob, can lie. And, and can distort evidence and can use it for his own penurious purposes. And we seek as the instrument of this truth seeking purpose and adversary system in which one side, the prosecutor, is sworn to uphold truth and justice and the other side, the defense attorney, has not obligation to do so at all. He may be hostile to that purpose, or indifferent to that purpose.

Heffner: You know, Judge Rothwax, I remember some 35 years ago when this program began and it was on hiatus…

Rothwax: I was a young man at that time.

Heffner: I was going to say “before you were born”…and we were put off the air just temporarily for the summer and a station in Boston asked me to go up there and do the program, but we had to do it under a different title, and I called it SEARCH FOR TRUTH…and someone said to me, “You must think you’re making like a lawyer, but don’t you know, that the saw is not a search for truth, the law is something very different. Truth has to do with philosophy. Truth has to do with history. Truth doesn’t have to do with the law”. But you’re talking about a search for truth…and is that quite so appropriate?

Rothwax: Well, increasingly what it becomes is less a search for truth and more…instead of a truth-seeking process, it becomes a strength testing process.

Heffner: Yes.

Rothwax: And it seems to me that’s bad…bad from all of our purposes because if ultimately it ceases to be a meaningful search for truth and every time we exclude evidence, in a way we’re excluding truth, we’re keeping a jury from finding the truth. To the degree that we allow that kind of a process to proliferate, ultimately the system of justice comes into disrespect and disregard.

Heffner: You seem to be saying that really has happened already.

Rothwax: I think increasingly it has happened because we have not been mindful in our quest for fairness, in our quest to restrain tyrannical and oppressive government as…and we should properly be concerned about that, with the impact that these developments are having on the effectiveness, of the ability of the system to operate. And ultimately and over time this system is becoming more paralyzed in its ability to do that job that it ought to do. In a way we’re seeking perfect justice, and when you seek perfect justice you get no justice, you get paralysis. We have to be aware that there is a tension between those concepts of fairness and efficiency. And we have to be as much concerned with the efficiency of the systems as we are with its fairness.

Heffner: Do you think that, on balance, if one simply says, “this is a…”, there is , as you express it so well, a tension between the two, that you really can have that balance without doing enormous injustice…enormous damage to the matter of…

Rothwax: I think you can have the balance, but in order to have a balance you must be aware of the inter-relationship between those two concepts. I think civil libertarians and defense lawyers are only concerned with the fairness aspect, and not concerned with the efficiency expert. I think very often political conservatives may only be concerned with the efficiency and may not be concerned with the fairness. A proper criminal justice system requires an awareness of the need for both, and an awareness of the tension between them, and an awareness of the need to balance off the competing concerns.

Heffner: Before you went on the bench, when you were a defense attorney…

Rothwax: Yes.

Heffner: …did you feel this way?

Rothwax: I felt very much…I always distinguished in my own mind when I was a defense attorney and I was a very radical and very aggressive defense attorney. I know that’s hard for you to believe…

Heffner: Not at all.

Rothwax: …but it’s true… (Laughter)

Heffner: Not at all.

Rothwax: …that I distinguished between my role as a defense attorney and as a citizen. As a defense attorney my mob was to operate within that system, legally and ethically, but within that confine to be as aggressive and as creative and as thorough as I could be on behalf of my client. My job as the defense attorney was not to see that the system worked effectively, it was to do the very best I could for my client within the law. And that’s fine. As a citizen, however, I might be very much concerned with some of the things that pertained in the criminal justice system.

Heffner: Yes, but if you were to take yourself back, just for a moment, to those days, your description of what your obligation was at that time is a perfect description that the people we have been talking about would embrace.

Rothwax: No.

Heffner: No?

Rothwax: I differ with it. No, because it seems to me…if they would embrace it then they would be the first ones to complain and criticize about defense lawyers who have exceeded the proper bounds. When a prosecutor goes beyond the proper bounds, the defense lawyers are quick to cry out, properly, about that kind of infraction, but they are very slow ever to point their finger, as part of a peer review system, to say, “one of our brethren has trespassed”.

Heffner: But isn’t that all part of…what I was about to call “the game”?

Rothwax: Well, that’s my problem. Basically, what we’re having is increasingly a system of game playing. In the case now on trial here in New York the “fatal attraction” case, the defense lawyer has said, “the cross-examination is a blood sport”, and increasingly when you hear defense lawyers talk about this, it’s called a blood-sport, a deadly game, and so on.

Heffner: Judge Rothwax, let’s talk about blood-sports again…stay at this table if you will…and after we say good-bye to each other, we’ll say hello to each other and continue a program for next week. Okay?

Rothwax: Okay.

Heffner: Thank you very much for joining me today, Judge Harold Rothwax. 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 an 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.