I bought Guilty: The Collapse of Criminal Justice by Harold J. Rothwax after reading a book review in The Wall Street Journal. The review (Lance Ito's Courtroom and Other Injustices by David Andrew Price, The Wall Street Journal, January 29, 1996) opened with the following paragraphs:

Late month, the D.C. appeals court handed a nice Christmas present to a young man named Shawn Stewart: It reversed his murder conviction.

Three-and-a-half years earlier, Mr. Stewart had been arrested for the fatal shooting of a motorist at a downtown Washington street corner. The police read him his Miranda rights and held him for the rest of the day. Detective Edwin Treadwell, a family friend of Mr. Stewart's, visited him in his cell block following his arrest and met with him again that night. At the second meeting, the detective asked Mr. Stewart what happened, and Mr. Stewart promptly confessed to the shooting.

Sounds like good police work, aided by good luck. But the appeals court said Mr. Stewart's rights had been violated: He hadn't explicitly waived his right to remain silent and hadn't been readvised of his Miranda right at the second meeting.

We all rely on the police and the courts to protect us and our property from criminals. But this protection is imperfect, at best. Every year, in any major city in the United States, terrible crimes are committed and those who commit them are never brought to justice. As Rothwax points out in numerous examples, even when violent criminals are finally brought to justice, they sometimes escape punishment on a technicality. I can only image how I would feel if a criminal harmed someone I love and I saw the criminal escape punishment on a technical point of law. I see O.J. Simpson, who I believe is guilty of a brutal double murder, walking free and attempting to return to public favor, while the Brown and Goldman families search for some kind of justice.

To reform the legal system, Rothwax proposes:

1. Revise the search and seizure laws (which are based on the Fourth Amendment to the Constitution).
2. Overturn the Miranda ruling.
3. Greatly revise the speedy trial statutes (based on the Sixth Amendment).
4. Remove the right to an attorney when suspects are questioned.
5. Allow the fact that a defendant did not testify in their own defense to be considered by the jury as a factor indicating that the evidence presented by the prosecution is true.
6. Limit peremptory challenges (allowing jurors to be removed from the jury without specific reason) to three or fewer to avoid stacked juries.
7. Remove the requirement that exists in most states for unanimous verdicts in criminal trials.
8. Allow American judges to act more like European judges, who take an active part in presenting the case to the jury.

Just as we depend on the police to protect us from criminals, we depend on the law to protect us from abuses by the police and prosecutors. Rothwax seems to believe that the police and the prosecutors always act with good will. The bad old days, when the police extracted confessions by beating prisoners are, he believes long gone, and not likely to return. Nor, in Rothwax's world, do we have to concern ourselves with police breaking into our homes to search them. The police and prosecutors are benign protectors of our rights, searching for truth, so that they can lock up the bad guys. This is the world view of a white, male, Superior Court judge. I am sure that the police and prosecutors show Rothwax the greatest deference. This is not the world of a Black man stopped in Los Angeles for DWB (Driving While Black) or for computer bulletin board "Sys-op" Bob Emerson, who has been repeatedly harassed by the Hamilton County, Ohio, Sheriff Simon Leis (see Americans Are Not As Free As We Think We Are, by Charles Platt, Wired, April 1996). Nor are the search and seizure laws strong enough to protect a citizen when the police break down the door without warning, because they got the address wrong on a drug bust. And God help this citizen if he draws a weapon on these unidentified intruders.

Rothwax started his legal career as a defense attorney, before being appointed a Superior Court judge. He writes of these days:

I understood then, as I do today, that absent challenges, authority becomes totalitarian. Authority needs to be challenged if we are to ensure the integrity of the process. It is one of the great truths of our system.

While Rothwax can still write these words, he proposes moving the balance of power toward the government. If we were to adopt all of Rothwax's recommendations, more criminals would be convicted, but there would also be more innocent people sitting in jail cells. And these people would probably not be white male Superior Court judges, but young Black and Latino men. The Justice system is run by people and it is no more perfect than they are. No matter what reforms are implemented, there will be some cases that we find outrageous, either because the guilty are unpunished or because the innocent are persecuted. Moving toward a more Draconian system will not change this.

Although Rothwax would remove too many checks in the Justice system, he has some good points. The laws of search and seizure have become so complicated and contradictory that they offend common sense. Rothwax writes:

The problem is, the [search and seizure] law is so muddy that the police can't find out what they are allowed to do even if they wanted to. If a street cop took a sabbatical and holed himself up in a library for six months doing nothing but studying the law on search and seizure, he wouldn't know any more than he did before he started.

The O.J. Simpson case and the first trial of the Mendez brothers show how jury selection can be abused to select a jury that is incapable of a just verdict. Rothwax's recommendations on limiting peremptory challenge is good as well. But I do not have enough faith in the police or prosecutors to believe the rights of the accused would not be damaged if their was no right to have an attorney present during questioning. Nor do I think that it is right to assume that because a defendant does not testify on his own behalf, the prosecution's evidence should be considered in a stronger light by the jury. There are many reasons that a defendant may choose not to testify. The defense attorney may feel that the defendant is inarticulate or will not appear attractive to the jury. Even Rothwax admits this, but he brushes it off.

I was very disappointed with Guilty. Rothwax is, at most, an adequate writer and for a jurist and law professor he has a poor command of argument and logic. Rothwax proposes his reforms as a solution to our legal ills without fully explaining (or perhaps even considering) what the consequences might be. He admits that many of the rulings that he objects to were made in response to past abuses, but he does not explain how we can avoid having these abuses reoccur once the laws he objects to are overturned. Considering the poor quality of Rothwax's writing and reasoning, I would be happier if I could return the book for a refund.

Ian Kaplan - 3/96

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