Monday, March 30, 2009

"Guilty", by Harold J. Rothwax

The full title of this book, is "Guilty: The Collapse of Criminal Justice". I read it recently, expecting to be outraged and to be in agreement with problems in our criminal justice system.

Unfortunately, the book's indictment of the criminal justice system does not stand up to scrutiny. This is not a well-researched book, but rather it is based on the author's own personal experiences as a Judge in New York City. Consequently, his examples do not apply generally to U.S. justice.

For example, in his chapter on plea bargaining he cites a defendant with many prior shoplifting arrests, and he says that in some of those cases "the prosecutor actually undercharged because he lacked the resources to charge a woman who steals more than a thousand dollars from Macy's with grand larceny. He needed to use his limited resources for the murderers, rapists, burglars, and so on. It's pretty common for felonies to be under charged in this way."

This bold statement is completely out of line with my experience. I practiced in a county of 350,000, surely closer to being typical in the U.S. than NYC is. The idea of undercharging would be unheard-of in my county or in any other I know about. Rather, the issue which comes up is just the opposite, it is *overcharging*. The prosecutor does this in order to give him plea bargaining leverage. Thus, the real situation is just the opposite of what Rothwax would have us believe.

The main thrust of Rothwax's complaints are rules which he says tend to obscure the pursuit of truth. He whines incessantly about guilty defendants going free for reasons other than that they didn't do the crime. He doesn't like the exclusionary rule, under which evidence seized in violation of the fourth amendment cannot be used in court. He doesn't like the rule requiring police to give a suspect the Miranda warnings. He doesn't like the rule allowing a defendant a lawyer when he requests one during the investigative phase of the proceeding (i.e., before charges are brought). He doesn't like the speedy trial rule, requiring a defendant to be brought to trial within a certain number of days after charges are brought against him. And he doesn't like the rule requiring convictions to be by a unanimous jury verdict (he feels 11-1 or 10-2 would be OK).

Most of these positions do not stand up to analysis, and I won't belabor them all here. For example, he complains that the rules concerning when a search warrant is required are so complex that no police officer can be expected to know them. He says even Judges cannot know these rules, so complicated and subject to change that they are. But look at his solution: it is to apply a case-by-case standard of reasonableness! So what he wants to do is to substitute no standard al all for existing standards. And this simplifies things for the police how?

And this is generally his solution, to apply reasonable standards instead of hard-and fast rules. One of the rules which is the most hard-and-fast is the speedy trial rule. The prosecution must not have delays in bringing a defendant to trial of more than so many days (in my state, it was 90 for an in-custody defendant, 180 for one not in custody). Sometimes this seems to work in a way that seems unfair to the prosecution, and Rothwax whines to no end about this.

Rothwax does not seem to understand that the rules are there for a reason, and that the price of guilty defendants occasionally going free is a price we as a society have chosen to pay for having these protections in place. He needs a better sense of perspective, as a prosecutor showed after one of my clients was found not guilty by a jury. The prosecutor, far from being upset, said "that's alright, I'll get him", meaning he would convict him the next time the guy was caught. And this is what actually happened.

Rothwax needs to read "Actual Innocence", an account of how many innocent defendants have been convicted in the U.S., only to be exonerated once DNA testing became available. And I would recommend anybody reading "Guilty" to also read "Actual Innocence" to get a balanced view of our criminal justice system.

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