A JUDGE SPEAKS OUT JULY 4, 2008

This week I’ve been enjoying what’s known as the pleasure of recognition through my reading of the late Judge Harold Rothwax’s book, “Guilty; the Collapse of the Criminal Justice System.” I knew his reputation as a judge who maintained that the system had gone overboard in its protection of criminals and made itself into an enemy of the people it was supposed to protect. I only knew this from newspapers, though, and not from any better source with more detailed information.

His book has changed all that. The program is spelled out in full and it’s one that goes to the heart of the problem, not just to the periphery like most so-called reform proposals. Lots of reformers are all in favor of better law enforcement so long as (a) criminals are not seriously inconvenienced, only mildly so; (b) the term law enforcement is changed to law endorsement or something similar, for obvious reason. Force is such a harsh word. That’s really all that’s required to effect the changes that some people seem to feel are needed in our system.

Rothwax didn’t buy any of this. His experience of twenty-five years on the bench wouldn’t let him. He knew better. Sacred cows like the presumption of innocence, the right against self-incrimination, the right to bail, the right against illegal searches and other such banalities stood in need of re-examination the way a ship’s hull has to be de-barnacled when too much marine growth accumulates on it.

There was nothing wrong with the principles behind these hoary old monuments, but the accretions of many years had to be cleared off them to get back to those principles. How had the Fifth Amendment for instance, meant to prohibit forced self-incrimination, been turned into a prohibition against anyone drawing a negative inference from its use? Why shouldn’t a judge and jury draw conclusions from a defendant’s refusal to testify in his own defense or his invocation of the Fifth if he did so? This is just driving common sense out of the courtroom for the convenience of defense attorneys. The only consolation the rest of us have is that many jurors do draw conclusions no matter what the judge tells them in his charge.

I said above that I enjoyed recognizing some of my own ideas emerging in the judge’s book, thereby giving me, an amateur, validation from a professional in the field of lawmaking and law administration. It’s good to see a high court judge endorsing ideas you’ve been playing with for years, wondering why no one else was interested. They were heretical notions of course, questioning the very foundations of our institutions -- if you listen to the professors -- but somebody somewhere had to stand up and say the emperor was wearing no clothes.

We get the whole layout here. Rothwax believed in the Fifth Amendment like the rest of us, but he didn’t believe it was sacred. Among his other heresies are the following:

1, Search and seizure laws are so enigmatic that no evidence should be excluded if there has been good-faith compliance with the law in obtaining it.

2. The “Miranda” ruling should be revoked. Videotaping is sufficient to prevent the use of coercion in getting confessions.

3. Speedy trial statutes should be replaced with a rule-of-reason standard for scheduling trials.

4. The right to an attorney should apply only in the pretrial and trial stages of an investigation.

5. If a defendant fails to answer evidence against him, the jury should be instructed that they may conclude the evidence was accurate.

6. If defendants demand pretrial discovery of the state’s evidence, they should first have to file their own story so a new one can’t be concocted to fit the prosecution evidence.

7. Peremptory challenges should be limited to three or four to prevent stacked juries.

8. Majority jury verdicts are better than unanimous ones and should be introduced to replace them. Unanimous verdicts often represent a compromise with holdouts who ignore everyone else’s opinion and have to be appeased. Contrary to “Twelve Angry Men” Rothwax found that they were always wrong. He wants them neutralized.

9. American judges should be allowed a more active role in the trial, setting them apart from pushovers like Ito.

10. Go back to Square One and revise the law to comply with common sense.

The judge made particular music to my ears when he repeated my mantra about the presumption of innocence applying only to the trial jury and emphatically not to the earlier stages of the process. Some so-called true crime shows on TV print an admonition at the end that the characters we’ve just seen getting themselves arrested for gross abuses are to be considered innocent until proven guilty. No they’re not. In Judge Rothwax’s words they belong to the “probably guilty” class because they’ve been arrested on reliable information from eyewitnesses usually and haven’t given anyone reason to believe they’re innocent. This will continue to the end of the process until they face a jury, who will apply the presumption The rest of us in the chain of custody leading thereto will have held them to be “probably guilty” or, in the judge’s words there would have been no righteous grounds for arrest. I may give the judge a rest in my next essay, but I’ll be returning to him before long.

Did you know that a recent London murder jury consulted a Ouija board to get in touch with the victim, who demanded a conviction and was upheld unanimously by the jury?