A FINAL JUDGMENT

It would be normal today to write something about the Democratic convention
just concluded in Denver, but since there were allegedly fifteen thousand
reporters there, I'm assuming there's nothing left to be said that hasn't
already been said, so I'll take a pass on adding my voice to the tumult. Instead I
'll go back to where I left off a few weeks ago and return to the message
left by the late Judge Harold J. Rothwax of the Supreme Court of New York.

Judge Rothwax sat in the criminal court in New York for twenty-five years
and as he did, watched over the gradual "collapse" (his word) of the criminal
justice system. I could paraphrase his comments on this, but I think some
direct quotations will represent him and his case better, e.g: (Emphases added)

"A trial is a minefield and any judicial misstep -- or even a perceived
one -- can lead to reversal of the verdict with no consideration of whether
the defendant is guilty or not."

"The Fourth Amendment does not state that illegally obtained evidence must
be excluded. We've come to that point entirely on our own."

"...the presumption of innocence is a trial presumption -- it does not
relate to the earlier stages of the process." (Arrest, interrogation,
detention, arraignment, etc.)

The above announcement probably won't do anything to deter TV loudmouths
and other media mullahs from babbling about the presumption as if it applied
the moment one of their proteges stuck a knife in the back of a taxpayer and
immediately began to plan his trial strategy. He will be bound to have the
assistance of such experts from then on as they apply their great legal
knowledge to his problem. As Erle Stanley Gardner said, marrying two cliches to each
other "Where ignorance is bliss, a little learning is a dangerous thing."
True, true.

"What the presumption of innocence does not mean is that the defendant is
probably innocent." (Emphasis in original.))

(Paraphrase). A New York defendant was arrested for a fur robbery that
became a homicide. He denied everything. A detective deposited the furs
obtained by his accomplice in front of his cell. He then confessed. An appellate
court found that the furs constituted compulsion to confess and reversed his
conviction. "Frankly, insane" said Judge Rothwax.

"The irony of the speedy trial rules is that most defendants and defense
attorneys don't want a speedy trial." I saw this in print in different words
many years ago "Delay never hurt a defendant." In the Fifties in New York,
and even after that, six or seven or more adjournments in a case were routine
and usually succeeded in their objective of wearing out complainants and so
getting the case dismissed.

Judge Rothwax, as can be seen, was not a conformist to legal orthodoxy,
marching in step with the American Bar Association and other such mad scientists
whose role models are the golf course designers who spend their lives building
courses with ever-narrower fairways and ever-wider sand traps. In their
case the duffers are the citizens who come to court expecting justice and
getting -- Johnny Cochran.

Here I'll quote the judge at more length than before because he puts his
case so well that paraphrasing would only detract from it. So I give you the
original:--

"[The Supreme Court's Miranda decision makes] the criminal justice system...
a sporting event in which the defendant has a a sporting chance to evade
society's punishment."

"...why should we try to advocate equality between a defendant and a police
officer -- unless we thought the system was a game, a sport, a fox hunt?"

"A desire for equality cannot be a justification for restrictions on police
investigation. [Why should we worry] that a guilty person's chances of
acquittal have been reduced?"

Is the judge suggesting that only guilty people get questioned by the
police? No, he's simply saying "Miranda" helps no one but guilty people because
the last thing innocent ones need is a warning about keeping silent. They
want to talk and proclaim their innocence.

Of course the judge was not used to cases involving this type of individual.
Not many criminal lawyers are. A criminal lawyer is what Rothwax was
before becoming a judge and serving twenty-five years in that capacity. In one of
his early criminal cases he represented a rapist who maintained that he had
picked up his victim in a park and everything that happened was consensual.
Rothwax found that the girl had only been in the country for a week and didn'
t know a word of English. By the time he became a judge he knew what
everyone else in his field did -- that just about every arrested person has been
guilty of something, usually of the charge under which they've been arrested.

In other countries this doesn't leave lawyers much room for maneuver and
they concentrate their efforts not on getting an acquittal for their client but
on getting him or her the most lenient punishment possible. In America the
arrest of the most blatantly guilty criminal is only the starting point for a
series of attempts to circumvent the law through frivolous motions, delays,
adjournments, evidentiary hearings, false charges, witness tampering, press
leaks, document dumps, mistrials and every other trick conceivable in the
twisted minds of, well, interested parties. I wonder if this kind of thing might
not have contributed to the judge's early death. Maybe he was more affected
by it than he realized. In any case he died lighting the way for others to
follow in a good cause.






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