"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.

Obama Announces Stepped-up War in Afghanistan

So many issues are raised by this week's announcement by Obama. One is whether he is falling into the same trap which imprisoned George W. Bush and made Bush unable to envision any sort of response to 9/11 other than another "war". MSNBC last night showed Bush and Obama side-by-side making statements, and they were eerily similar. Statements like we will settle for nothing less than "victory" over Al Qaeda.

It is unclear just what is meant by "victory" in this context. Surely any true victory means winning over the hearts and minds of the people, as this is the only thing which will alleviate the terrorism threat. But just as surely, this does not come through military means, but rather through being a good friend and neighbor.

Ths is what makes Dick Cheney's recent statement that Obama is making us less safe so despicable. Surely Bush made us less safe by demonizing the Muslim world and thereby creating more hatred and potential terrorists. Surely the torture and other atrocities (Guantanamo and Abu Ghraib) created more terroristic threats than they alleviated.

Obama understands that we must build bridges of friendship to other people, and only in this way will we be able to make this a safer world. By attempting to do this, Obama is making us safer, while Bush's policies did the opposite. Cheney, go away and leave us alone! You have done enough damage during your 8-year debacle of a reign.

And surely it is time to put away for good this business of using "war" as a metaphor for every endeavor we are engaged in. To me this started when LBJ announced his so-called "war on poverty" in the '60's. Then we had the "war on drugs". Now we have the "war on terrorism", sometimes doubly misnomered as the "war on terror". These things are not wars, and we should stop using this metaphor for them. They are policy initiatives designed to make this a better world. The sooner we look at it in this more mature way, the sooner we will be able to think more clearly about things like poverty, drugs, terrorism, and any other problems which might come along.

Some Courtroom Dramas

Boomerang (1947)
The Caine Mutiny (1954)
The Court-Martial of Billy Mitchell (1955)
Witness for the Prosecution (1957)
Paths of Glory (1958)
I Want to Live (1958)
Anatomy of a Murder (1959)
Inherit the Wind (1960)
Judgment at Nuremberg (1961)
To Kill a Mockingbird (1962)
A Man for all Seasons (1966)
Kramer vs. Kramer (1979)
Breaker Morant (1980)
The Verdict (1982)
The Accused (1988)
Presumed Innocent (1990)
My Cousin Vinny (1992)
A Few Good Men (1992)
Murder in the First (1995)
The People vs. Larry Flynt (1996)
Primal Fear (1996)
Trial and Error (1997)
Amistad (1997)
Red Corner (1997)
Dangerous Beauty (1998)

2009 MLB Predictions

It's time once again for predictions, so here goes.

NL East: Mets, Phillies, Marlins, Braves, Nationals

NL Central: Cubs, Brewers, Cardinals, Reds, Astros, Pirates

Reds had a good Spring, and the Astros a bad Spring, so they are flip-flopped over where I would have picked them.

NL West: Dodgers, Rockies, Padres, D-Backs, Giants

D-Backs had a bad Spring, so lowered from second, where I wanted to pick them.

AL East: Red Sox, Yankees, Rays, Blue Jays, Orioles

My head says pick the Yankees first, but my heart won't let me.

AL Central: Indians, Twins, Tigers, White Sox, Royals

Mark DeRosa and Kerry Wood seem to be good additions to the Indians. Twins always seem to surprise, so they go second. Tigers will improve on their dreadful year last year, leaving the White Sox to settle for fourth.

AL West: Angels, Rangers, A's, Mariners

Rangers' days as the division door mat seem to be over. Angels remain one of my favorite teams, and Scioscia one of my favorite managers.

3/28/16 update.  The Phillies won the NL East while the Mets finished 4th. The Cardinals won the Central with the Cubs 2nd by 7 and a half games. The Dodgers won the West with an NL-best 95 wins, with the Rockies 2nd as predicted.

I had the AL East perfect except the Yanks and Sox were flip-flopped. The Twins won the Central, with the Indians a disappointing 4th. I had the West right except the Mariners and A's were flipflopped for 3rd and 4th.

The statistical analysis shows I was exactly right on 12 teams, 1 off on 14, 2 off on 2, and 3 off on 2 (Indians and Mets).

Larissa Stubs Her Toe

Larissa Kelly had the two-day game under control but missed a rather easy final jeopardy question yesterday. So, she finished second and got $100K instead of the first place $250K.

The question asked for the last British monarch who was not born in the country. Just this would have been a rather difficult question. What should have made it easy was they added the birth date, and the fact that he was the second monarch with this first name. Given that, the answer of George II was pretty obvious.

Larissa mentioned she had gotten a sci fi story published, so maybe she can use her fame to advance her writing career.

Bernie Madoff Pleads Guilty

Madoff's guilty plea raises a number of questions.

1) Why did he plead to all charges? There is almost always a plea bargain behind a criminal plea, wherein the prosecution dismisses certain charges in exchange for a plea to the rest, and a favorable recommendation concerning sentencing. So why no plea bargain here? Part of a plea bargain would surely have been that Madoff would have had to agree to cooperate with the prosecution in naming other conspirators, and in finding out what happensed to the money. I.e., he is protecting his family. By not having a plea bargain, he does not have to assist the prosecution at all. He is throwing himself on the mercy of the Judge, who in all likelihood will do what he or she feels is fair and just anyhow, regardless of any prosecution recommendation. So, it makes sense when you think about it.

2) What happened to all the money? If news reports are to be believed, the loss to investors is $65 billion. However, I suspect this is what is supposed to be there, based on the statements Madoff has been sending out out, showing a high rate of return. I suspect the actual funds lost are much less, maybe in the neighborhood of $20-30 billion. Granted the Madoffs lived a fancy lifestyle, but all this money had to go somewhere. Madoff seems content to live the rest of his life in prison, but the bilked victims deserve to know more details about where the money went. In particular, Madoff's wife seems intent on disgracing herself personally by insisting that $69 million of her wealth is untainted. This is ludicrous on the face of it, and she will have a next-to-impossible time proving it.

3) Should Madoff's bail have been continued until sentencing? Normally a defendant stays out on bail until the time of sentencing, and only then is taken into custody. The idea of revoking Madoff's bail, when he was already under house arrest and unable to flee, seems to have been done to pacify the victims who filled the courtroom and continually erupted with raucous responses during the recent court hearing. I have no particular problem with revoking the bail bond, it just seems a bit odd.

4) Do we have two different kinds of justice, one for the rich and one for the poor? Perhaps, but not like is commonly believed. My impression is that when there is a rich, high-profile defendant, he/she is usually treated more harshly, because the prosecution wants to appear tough, wants to make an example of the defendant to deter others, and/or sees it as a chance to make a name for himself or herself.

If there is any defendant who was able to get the best lawyer money could buy, it was Patty Hearst after being charged with bank robbery. The Hearst family hired F. Lee Bailey, but even he could not get her off. Her brainwashing defense was surely sound, as she was no bank robber when forcibly abducted in the middle of the night from her California home. Yet, Bailey could not convince the jury and she was convicted and sent to prison. Surely this shows that money cannot buy justice.

5) Should property crimes be treated more leniently than violent crimes? The answer is surely yes, and they are. The guy who robs the local convenience store at gunpoint gets more time than a Madoff who steals billions of dollars, regardless of how little money the store robber actually gets from the robbery. This is because of the violent nature of the crime. The law recognizes that our personal health and safety is more important than our property. After all, didn't Jesus say we should store up treasures in heaven, not on earth? Didn't Jesus say that to enter the kingdom of heaven we had to give all that we have to the poor?

If any of Madoff's victims lost their entire life savings, then they were guilty of violating the first principle of investment, which is don't put all your eggs in one basket. The motivator for this is greed, pure and simple. Any con game depends on the "victim's" greed, and this crime simply can never rise to the level of a violent assault against another person.

6) Should Madoff have been caught earlier? Someone who looked into Madoff's company ten years ago wrote a very detailed, 29-point analysis to the SEC, detailing 29 suspicious aspects of Madoff's operation. What did the SEC do? Nothing. It is a huge failure of government regulation, no doubt made possible by the Reagan legacy which pronounced anything government did as bad and anything private enterprise did as good.

Three Cheers for Larissa!

America's sweetheart, Larissa Kelly, got by her first game of the Jeopardy Tournament of Champions yesterday. It wasn't a "runaway", but she had a big lead going into Final Jeopardy, and would have won even had she missed the question. As it was, she was the only one who got "Bolero" as the answer in the French classical music category. She seemed to get it right away, spending the last half the time period being still.

She will play in the semifinals next week, presumably on Wednesday.