Are too many guilty defendants going free

by Roger Cossack

Publication Information: Article Title: Are Too Many Guilty Defendants Going Free.
Contributors: Roger Cossack - author. Journal Title: American Criminal Law Review.
Volume: 33. Issue: 4. Publication Year: 1996. Page Number: 1169-1191. COPYRIGHT
1996 Georgetown University Law Center; COPYRIGHT 2002 Gale Group
Disponvel em: <http://www.questia.com/PM.qst?a=o&d=5001642918>


The Honorable Harold Rothwax vs. Professor Alan Dershowitz Moderated By: Roger
Cossack March 8, 1996 Georgetown University Law Center
MICHAEL CARROLL: Good evening. My name is Michael Carroll. I am the Editor-In-Chief
of the American Criminal Law Review. I'm glad that so many of you were able to come
out on such a cold evening to be with us here tonight. On behalf of the Review, I want
to welcome all of you here to the Georgetown University Law Center. First let me thank
Dean Areen, Dean Tushnet, and Professors Seidman and Dash for their continuing
support. Additionally, I would like to thank the staff of the ACLR as well as Simon and
Schuster and Random House for their support. The American Criminal Law Review is
presenting this debate as part of our celebration of twenty-five years here at
Georgetown. The Review is dedicated to publishing leading scholarship on current
criminal law topics. One of the hottest topics right now is whether the criminal justice
system is letting too many guilty defendants go free. On that topic we are honored to
welcome Judge Harold Rothwax and Professor Alan Dershowitz. We are very pleased to
have as our moderator tonight Roger Cossack, co-host of CNN's program Burden of
Proof. Mr. Cossack knows this issue inside and out. He has been both a prosecutor and a
criminal defense attorney. He once argued a case on the exclusionary rule that went all
the way up to the Supreme Court. And at this point I would like to turn the evening over
to Mr. Cossack.
ROGER COSSACK: Good evening and welcome to "Burden of Proof Prime Time." As you
can see, it's going to be a little better because I don't have to put up with that Greta
Van Susteren tonight. You know when I was a kid I always wanted to be a boxer, if you
can believe that, and I even went so far as to have had a couple of amateur fights. One
time I ran into the lightweight champ of the Navy and I learned my lesson very quickly--
that perhaps boxing was not going to be my career. Then I thought that maybe
someday I would be the third man in the ring, you know the referee. Well tonight I get
my opportunity to do such a thing because I am going to stand in the middle of two
champions. We're going to have debating tonight, as you know, Judge Rothwax and
Alan Dershowitz, two leaders in their field and two diverse points of view.
First, Judge Rothwax: Harold Rothwax has been a judge in New York City for twenty-five
years and has handled some very important and famous cases. Prior to his judgeship,
he was a senior trial attorney at the Legal Aid Society in New York. He's been a lecturer
at Columbia Law School and was a Guggenheim Fellow in 1984 at Yale Law School.
Ironically, prior to being called the toughest judge in New York City, he was a card-
carrying member of the ACLU. There is nothing hidden here tonight, Judge. Most
recently, he has written a fine book called Guilty: The Collapse of the Criminal Justice
System, so you sort of know where he comes from.
Debating him tonight will be that well-known scholar and bon vivant Alan Dershowitz,
who has been a full professor at Harvard University since he was twenty-eight years old.
He is a prolific writer who has written seven previous books and hundreds of articles, is
a syndicated columnist, and most recently has an article in Penthouse magazine, which I
would like to talk to you about a little later. He's a civil libertarian, and Time magazine
has called him the top lawyer of last resort, a sort of judicial St. Jude, which is an
interesting title for a man who has written a book called Chutzpah. His clients have
included O.J. Simpson, von Bulow, Michael Milken, Michael Tyson, and other famous
people.
Being champions, both Judge Rothwax and Professor Dershowitz have the ability to
make sure that God or the deity is on both of their sides. In his book, Mr. Dershowitz
points out that O.J. Simpson called him his "God forbid" lawyer, meaning "God forbid: If
I'm convicted Alan Dershowitz will write my appeal." Judge Rothwax is known as the
"Oh my God" judge, because when the defendant walks into his courtroom, looks up,
and sees Judge Rothwax, he says, "Oh my God." Each of them has recently written a
book which will be available for purchase later tonight. Professor Dershowitz's book is
called Reasonable Doubts, and it is his attempt to explain the jury's verdict in the O.J.
Simpson case. I've had the opportunity to read it, and it's a wonderful book. Judge
Rothwax's book, as I've told you, is Guilty. He's not guilty, the book is Guilty.
Interestingly, they both start from the same point. Both of them make the point in their
books that most criminal defendants are guilty, and from there they each go about
explaining how they view the criminal justice system. In fact, the topic of tonight's
debate is, Are too many guilty defendants going free? Judge Rothwax argues in his book
that perhaps it's time to rethink the criminal justice system and, indeed, even the Bill of
Rights. Perhaps it is time now to rethink those kinds of things that we learn in law
school are written in stone-perhaps they should no longer be written in stone. By
implication, I believe he is saying that perhaps we have come to believe that in order to
survive in a crime-ridden society and regain orderliness, we must be prepared to give up
our civil rights, or at least some civil rights. Mr. Dershowitz in his new book Reasonable
Doubts says no. In fact, he argues it is precisely our strict adherence to the Bill of Rights
that keeps us from becoming a tyrannical society.
And with that I think it is time for me to ask the gentlemen to take their places--Judge,
you should be on the right. Now what we are going to do tonight is divide this general
topic--Are too many guilty defendants going free?--into four subtopics. They are: (1) Is
the criminal process a search for the truth?, (2) What about the exclusionary rule?, (3)
What about confessions?, and (4) What is the role of the defense counsel? I think that
we should start with whether the criminal process is a search for the truth. Judge, why
don't you lead off.
HAROLD ROTHWAX: I will lead off. I just wanted to say, Roger, that I am really not
opposed to the Bill of Rights or civil rights; I'm opposed to some fairly recent
interpretations of those rights.
It seems to be clear that the criminal justice system is, or should be, a search for the
truth. If it is not a search for the truth, what is it? I think the real argument is, is it only
a search for the truth? Or is it other things as well? And clearly it cannot be only a
search for the truth, but I think its primary objective should be a search for the truth.
We burden the search for truth in some justifiable ways. In a criminal case, we say a
defendant must be proven guilty beyond a reasonable doubt because the impact upon
the citizen in a free society is a great one, and I have no objection to that. We could
reduce that burden to a probability if we wanted to, but I don't propose that. Although it
is, to some extent, a burden on the truth-seeking process, it is a proper one because it
seems to me there are times when guilty people go free. Perhaps even in the Simpson
case, where some of the jurors said he was probably guilty, but not guilty beyond a
reasonable doubt. So I don't dispute the need for that kind of a high burden of proof in
criminal cases.
Now we've burdened the search for truth in other ways as well. And that is by a
multitude of exclusionary rules. And, to some extent, that can be justifiable too. We are
a democratic society. We have decent and civilized values. And we ought to. We must
insist that when our police forces enforce the law, they obey the law. If they act in a
willful and wrongful way, then it may well be that we need occasionally to suppress what
they do. But we ought to be reluctant to suppress the truth. And that means, when the
occasion arises to suppress, we ought to be asking, is this rule that requires the
suppression of the truth in furtherance of some core value that is basic to our
understanding of what a democratic society should be? If it is not, if it's a rule that is
simply a formality, if it is a rule that doesn't serve the values that we are seeking to
serve in the criminal justice system, then we shouldn't be suppressing the truth. So
what I am complaining about in my book is that we, as a society, have been too quick,
and it is too easy, to suppress truth where it doesn't serve underlying core values to
which we ought to adhere, and we can talk about that later. Alan.
ALAN DERSHOWITZ: Thank you very much. You mentioned that I am sometimes called
the lawyer of last resort. When I was in Israel a couple of years ago, I was introduced
by that title. The Hebrew newspaper got it wrong in translation, and it came out that I
was America's last resort lawyer--which is probably why Leona Helmsley hired me to
represent her hotels.
Judge Rothwax and I certainly agree that most criminal defendants are guilty. Thank
God for that. Would anybody want to live in a country in which most people charged
with a crime were innocent? I mean, that might be China, Iraq, or Iran; it's not the
United States of America. And the real issue is, how do we keep it that way?
I think it is important to understand that there are different kinds of truth in criminal
cases. Judge Rothwax focuses primarily on one kind of truth and obviously the most
important kind of truth--ultimate truth. Did the defendant do it or didn't he or she do it?
In the Simpson trial, seventy times during the trial either the prosecution or the defense
said this was a search for truth. And of course in some respects it was, and in other
respects it wasn't. Both sides were searching for a truth. But very different kinds of
truths.
The defense was emphasizing the fact that the policeman lied, and let me tell you why
they lied and how they lied because it's very relevant. The policemen honestly all
believed that Simpson did it. Honestly, in their own subjective minds, they believed he
did it. So they decided they had to lie about the circumstances of the search--they had
to lie to produce the truth. Remember everybody in America suspected Simpson on the
morning of the murders when they heard that the wife of the man who had previously
battered her had been murdered. I mention in my book that I turned to my wife and
said, "Of course he probably did it." The husband is always the first suspect. Five people
in the world didn't suspect O.J. Simpson that morning--the five policemen who went to
his house and swore under oath. As Van Atter put it, "We no more suspected or
regarded Simpson as a suspect than we did Robert Shapiro." Now that was a lie. That
was perjury. That was perjury in the interest of truth.
And when Kathleen Bell came forward and said, "I hate Simpson, I think he is probably
guilty, but I remember having an encounter in a recruiting station with an officer named
Mark Fuhrman who told me that he thinks black people ought to be rounded up and
burned or shot, and that any time he saw a black man with a white woman he would
arrest him," Marcia Clark had to know that that was the truth. She knew because she
knew that previously Fuhrman had used the "N" word even though he said he hadn't.
She knew because another assistant D.A., Lucian Coleman, had told her that other
police people were saying, "Don't use Fuhrman, he's an evidence planter, a racist, a liar,
and a number of other things." Notwithstanding that, Marcia Clark was prepared to use
evidence which she had to know was perjured in order to arrive at the truth. She was
also prepared to totally destroy Kathleen Bell as a person. She took out investigators on
her. The investigators made less than implicit threats to destroy her, go into her
background, and dig up evidence about her sexual life and her other background, and
tried desperately to discourage this truthful good samaritan from coming forward to
testify because she thought that if that truth came out, then another truth, more
important, an ultimate truth of guilt, would not come out. So when we talk about truth,
we have to really understand what it is we are talking about. It is a far more complex
process than single-minded truth.
Let me just make one more point relating to that and maybe we won't disagree.
Exclusionary rulea.
HAROLD ROTHWAX: We'll disagree.
ALAN DERSHOWITZ: We'll disagree, okay. Not to worry.
ROGER COSSACK: Alan, we're going to get to exclusionary rules as a topic.
ALAN DERSHOWITZ: Oh okay, but he made a point about exclusionary rules so I just
wanted to briefly respond to . . .
ROGER COSSACK: I get the same respect here as I get from Greta.
ALAN DERSHOWITZ: And that is when we debate exclusionary rules, let's remember
there are exclusionary rules on both sides. They aren't always invoked by the defense.
For example, in the Mike Tyson case, he was convicted because although there were
three eye witnesses who swore that they saw him necking with the woman who he
allegedly raped and walking into the hotel room holding her hand when she swore it
didn't happen, the judge excluded those three witnesses because of a technical violation
of a discovery rule which the judge agreed was non-intentional.
Think about rape shield laws. They are an exclusionary rule which I bet everyone in this
room agrees with or many of us in this room agree with. So the interests that are
served by exclusionary rules are not only interests served by the defense, but by the
prosecution as well.
HAROLD ROTHWAX: I think the point that Alan is making . . . I mean, I am opposed to
police perjury too, and I am opposed to keeping witnesses who can contribute to the
truth off the stand if they have something worthwhile to say--that's not an issue
between us.
But the fact is, and you acknowledge it in your book, that the defense attorney is not
interested in the truth. The defense attorney is interested in solely--and I an not
criticizing you for this, you are saying it accurately--solely in representing zealously
within the bounds of law, his client. Therefore, to the degree that he can suppress the
truth, he is going to try to do that. He's going to try to distort the truth, he's going to
try to get jurors who perhaps will not be able to properly evaluate the truth, he'll hire
jury consultants to aid him in that regard, and so on. Now obviously whether it's one
side or both sides seeking to obstruct the truth, insofar as that takes place in our
adversary system and we tolerate it--even encourage it at times--then the process is
burdened and it doesn't serve the purposes it was intended to, and it fails us in that
regard.
ALAN DERSHOWITZ: Well, I think the difference between us, to put it philosophically, is
I think I am a rule utilitarian and you are a case utilitarian.
HAROLD ROTHWAX: What are those things?
ALAN DERSHOWITZ: I don't look at it on a case-by-case basis. I look at it as whether
we have a rule which in the end serves the interests of truth more often, and what
would you have a defense attorney do? Let me just ask you the following question. Let's
assume, not this case obviously, but I have had one case in my career where a client
comes to me and says, "I have to tell you the truth, will you promise me
confidentiality?" I lay out the rules, I give him his Miranda warning, Nix v. Whiteside,
and everything else. He then says, "Now you promise this is in confidence, yes, I did it."
What would you have me do?
HAROLD ROTHWAX: Alan, I don't have any problem with your representing that client. I
would say that, since you made a promise and the system has made the promise that
confidentially should be held, it should be held and you can go ahead and represent him
with great vigor and great zeal. I have no problem with your doing that.
ALAN DERSHOWITZ: What's your problem then?
HAROLD ROTHWAX: My problem is that the adversary system encourages behaviors by
defense attorneys which are not merely zealous. In fact, what I have perceived . . .
ALAN DERSHOWITZ: What shouldn't I do?
HAROLD ROTHWAX: Well, I'm going to say right now. I was just inhaling. The major
problems in the system are lack of zeal and excessive zeal. The problem is not zeal.
ALAN DERSHOWITZ: What's excessive zeal if it's within the bounds of ethics?
HAROLD ROTHWAX: A simple one. Here's an example from the O.J. Simpson case that I
mention in my book. I turn on the television and there is Judge Ito telling Peter Newfeld,
"Mr. Newfeld, that's the thirteenth time I've told you not to ask that question." The
thirteenth time. I saw Peter Newfeld months later and I asked him, "Peter, why did you
ask a question thirteen times when you were told the first time that it wasn't good?"
And he told me, "Because I knew I could get away with it; because I could do it." So
what bothers me is that there is no internal, personal, ethical mechanism at work there.
There is no defense lawyer bar association that calls Peter Newfeld before it and says,
"When the judge tells you not to ask a question, don't ask it--you can make your record,
but don't ask it."
ALAN DERSHOWITZ: But you're not disagreeing with Newfeld. What Newfeld said, and I
will defend him on this, is it is not the job internally of the defense lawyer to set the
limits if he believes two things. One, tactically it will help his client. I don't know how
asking the question thirteen times helps the client, but let's take an instance where it
would help his client.
Let me give you an example and ask you how you would respond to this, this is a case
in my life. I had a client who blew up Sol Yurok's office and killed a woman. I knew he
did it, and it became public that he did it, and there was no doubt that he did it.
But the issue was whether or not the prosecution and the police had threatened him and
beaten him, and whether there was a constitutional issue. We needed to prove that a
policeman had a made a certain promise, and I conducted the following kind of cross-
examination. The promise was not on audiotape. The police didn't know we had any
audiotapes. We had some audiotapes, but we didn't have the audiotape with the
promise, and so I conducted the following cross examination. First I lulled him into
thinking we didn't have audiotapes, and he lied through his teeth: "Oh, I would never
threaten him, I would never do anything." Then I started to read to him from what was
obviously a transcript, "Officer Paroler, do you remember saying the following . . .?" He
dropped his water glass, he got pale, he realized he was caught in perjury. He then
started admitting the things that I was reading to him. I then got to the point where we
didn't have the audiotape, but I pretended to have an audiotape. I continued to read
from what appeared to be a transcript and got him to admit that he made the promise,
and then I disclosed that he admitted it without the benefit or burden of an audiotape.
Now that's a close ethical question. I thought about it a great deal, and I have a rule: I
will never come close to the line ethically unless I am prepared to write about it and put
it out there for public discussion. I decided that was a close case. I decided I didn't like
doing that. I don't treat my family and my friends that way. I felt very uncomfortable,
and I had to go home and take a shower, but I said that I had no right not to do that.
There cannot be any internal ethical constraints on the zealous advocacy of a defense
attorney. If you want to make a rule, I will always comply with your rule; if you don't
make a rule, I will go right up to the line. Failure to do that is inadequate assistance of
counsel. Do you agree?
HAROLD ROTHWAX: I have two responses. One response to deal with Newfeld first and
then your question. Newfeld knew when the judge said that is out of line the first time
that he was now exceeding the bounds of law. The judge said, "That's an improper
question, don't ask it again." And Newfeld asked it twelve more times. The same
question. Now that is beyond the bounds of law.
I'll go back to you now, because you are within the bounds of law. You are unhappy with
those bounds of law, but you are prepared to go up to the bounds of law, and I have no
problem. The fact is that the defense bar is not unhappy with those bounds of law. You
are saying this is an issue that tore at you, you had to take a shower--Did you bring it
to a bar association and put it up for discussion? Is this an ethical consideration that we
ought to reconsider, revise, revisit, rethink, redo? If it is, why are the bar associations
made up of defense lawyers across this country silent when they are so verbose on
everything else?
ALAN DERSHOWITZ: Let me give you an example of where we were not silent. When I
started law, when you started practicing law, if we represented a man charged with
rape, prior to the rape shield statutes we had to do this terrible, horrible thing. We had
to do it. We had no choice but to do it. And that is, to question the alleged rape victim
about her prior sexual conduct. Because if you can do it, you must do it. There is no
area where you can do it and say, "Gee--I would rather not." You can do that about
fees--I would rather not charge the maximum fee--anything that benefits you, you can
stay well before the line, but before the rape shield law was enacted we had to do this
horrible thing, and I hated it. And I was very active in trying to get the rape shield laws
enacted so that we couldn't go up to that line.
I'll tell you another brief story about my son, who was a legal aid lawyer in your office.
The first case he ever had, in your old office, he had the following situation. I would be
interested in what the audience thinks about this. He had a case in which his client was
accused of ripping an expensive gold necklace, a gold chain, off a man at three o'clock
in the morning in a bar. And the only witness against that man was a man who was
walking with him that night. My son Jamie learned something very interesting in his
investigation. The man who was walking with him that night was his gay lover. My son
Jamie also knew that in New York he was likely to have at least a significant number of
homophobic people on that jury. And he called me and he said, "What do I do? If I bring
out the fact that this man is his gay lover, my client is going to walk, but he is going to
walk for all the wrong reasons, for horrible homophobia, and I can't be part of that. On
the other hand," he says, "I have an absolute obligation to bring up the fact that these
are lovers, close friends, because lovers are less credible as witnesses than strangers
are." And I said, "Jamie, take a lot of showers, grit your teeth, and if you want to be a
criminal defense lawyer, you gotta do it. Then you should move to change the rules. But
you've got to do it in this case." He did, he won the case, and he felt awful.
HAROLD ROTHWAX: The last word is the same as the last word before, and that is, I am
very much upset by the fact that in New York, where I practice law, the defense bar is
not in any kind of an energetic way, in any way at all, inquiring into these kinds of
issues which an active, ideological, idealistic defense bar ought to be doing.
ALAN DERSHOWITZ: I don't disagree with that.
ROGER COSSACK: We're going to move on. We know one thing, one is a case utilitarian
and one is a rule utilitarian. Let's talk about the exclusionary rule. This is something that
is very dear to my heart. Have any of you studied United States v. Leon, the case that
ended the exclusionary rule in America? You are looking at the lawyer who lost it. I was
the one that argued and lost that case before the United States Supreme Court. There
are no more exclusionary rule cases in your casebooks because of me. Alan, we'll let
you start with the exclusionary rule.
ALAN DERSHOWITZ: Well, I usually like to deal with the real issues rather than
hypotheticals. I think the subject ought to be, should we introduce the exclusionary rule
into the United States? Because--I agree with you--we don't have one. We have never
had an exclusionary rule to speak of in this country. Shortly after Mapp v. Ohio was
decided, Alderman was decided. We began introducing the standing requirement, then
we started chipping away at it. If you look at the jurisprudence of the exclusionary rule,
you start with a cheese, and then the first hole and the second hole and the third hole,
and then finally the Court said, "You know, the exclusionary rule doesn't really seem to
be much of a deterrent or a disincentive; therefore, let's put more holes and more holes
and more holes," and it's falling of its own weight.
My only really, really major criticism of Judge Rothwax's book is, if you read it, and I
recommend it, he clearly conveys the impression quantitatively that the exclusionary
rule is today having a very significant impact on American criminal justice. That
criminals by the carloads are being freed as a result of exclusionary rule victories. I
practiced law for thirty-two years, I've done probably 250 appeals, and I have won two
of them on exclusionary rule grounds in all of those years. Today I don't even bother to
raise exclusionary rule claims in most of my cases. As an appellate lawyer, I have
learned to go with the flow, and I argue inclusionary rules. The wins in most recent
cases are cases where in fact the court excluded relevant evidence, kept out the
essence of the defense, so the exclusionary rule is not a major factor in American life
today.
It is a major factor in one respect. It clearly encourages "testalying" and police perjury.
Joe McNamara, the former police chief of San Jose and Kansas City, wrote last week in
the L.A. Times that in his view, hundreds of thousands of cases of felony police perjury
occur in the courts in the United States every year-hundreds of thousands--and he
limited that just to drug search and seizure cases. The Police Commissioner of New
York, former Police Commissioner of Boston, has attested that testalying is a serious
problem. It is interesting that when Mapp came up, D.A. Hogan of New York wrote a
brief, an amicus brief, to the Supreme Court saying, "Please don't enact an exclusionary
rule that will encourage police to lie." He was right. I think we have to have a very
serious debate about the exclusionary rule. I would hope that the exclusionary rule, if
police would conduct themselves properly, would wither away, because the best proof
that the exclusionary rule is working is if it is not needed--that is, if in fact you don't get
too many instances every year where defendants can raise plausible issues under the
exclusionary rule. But the exclusionary rule today is, I think I agree with Judge
Rothwax's characterization of it, it is something of a lottery.
You know, Anthony Amsterdam, a brilliant professor at NYU Law School, wrote an article
many years ago in which he argued maybe the way to apply the exclusionary rule is
simply to have a coin flip. In 50% of the cases where you have an exclusionary rule
violation you keep the evidence out; in the other 50%, you let it in. That would be
enough, he said, to deter.
I wrote a response to that in which I argued that Amsterdam is confusing two types of
exclusionary rules cases, the bungling constable on the one hand and the calculating
cop on the other. For the bungling constable who could have easily gotten the warrant
and screwed up, all you need is 10% of the rule and you'll get 100% deterrence if you
imagine a cost benefit analysis. But for the calculating cop who says, like the cops in the
Simpson case, "I cannot get over that wall legally or legitimately; the only way I can get
the evidence is to engage in an act of civil disobedience," then you need 100%
compliance with the exclusionary rule.
I think the worst approach, with due respect, is the one that Judge Rothwax
recommends, namely to leave it to the judge's discretion and to allow different judges in
a discretionary way to apply the exclusionary rule when the interests of justice call for it
and not to apply it when they don't. There must be predictability--it must be clear and it
must be simple. Where I think we might agree, if we had four or five hours to sit
around, is I would limit the exclusionary rule to clear violations, and I would require the
courts to set down clear boundaries. I would not necessarily apply the exclusionary rule
in the array of cases that you so eloquently set out in your book, in which reasonable
policemen can disagree about the interpretation of the rule, but I think it would send a
terrible message today to either abolish the exclusionary rule even though it would be
only abolition in form, or to accept a rule which gives judges discretion. Judge Rothwax,
as evidence of his rule, says in Germany the rule is discretionary and it works well. My
challenge to you is how could you possibly know it works well in Germany without doing
an extensive empirical comparison as to how free the police are to engage in illegal
searches and what effect it has on a wide array of criminal justice issues? I just don't
think we can be confident that it works well in Germany.
ROGER COSSACK: Judge, Leon ended the exclusionary rule in the federal jurisdiction,
but did it end it in New York?
HAROLD ROTHWAX: No, in New York it's more complex than ever. New York has found
that the U.S. Supreme Court is unreasonable in its interpretation of the Fourth
Amendment. So it just rejects all of the U.S. Supreme Court laws. So the cop now not
only has to know all of the search and seizure law that relates to the U.S. Supreme
Court decisions, but also has to know how the New York Court of Appeals had modified
it. We've had about five Court of Appeals cases where the police officer acted on all
fours with the U.S. Supreme Court case that had just come out the year before, and the
Court of Appeals held that he was unreasonable in following what the U.S. Supreme
Court said. If that's not clear, what's clear?
Now, I remember the argument when my book was reviewed in a law journal after it
had come out--the first argument that was made was the same argument made by
Alan--and that was statistically this is an insignificant thing, and as luck would have it,
that was the day that Judge Baer suppressed eighty pounds of heroin and cocaine and
set the world on fire. And since then I've gone to California and I've gone to Seattle and
I've gone to Dallas, and I find in every location I've gone, I've got one radio talk show
host or another T.V. commentator who is telling me about another problem where some
outrageous suppression, in their view, has taken place.
We are the only country in the world, certainly the only democracy in the world, that
has a mandatory exclusionary rule. The other countries, Germany, all of western
Europe, the British Commonwealth, Scandinavia, all have exclusionary rules. I'm not an
expert on German search and seizure law, but Craig Bradley from Indiana has written
on it, and my statements are based on his law review articles on the German application
of the exclusionary rule.
One of the things about the mandatory exclusionary rule is that it lacks all
proportionality. When you take proportionality out of the law, you take justice out of the
law. It makes no difference to use Harold Baer's case, and I am not attacking him. He's
a good judge, and I am sure he was conscientious in deciding that particular case. It
makes no difference whether the person involved is a major criminal, serial killer, or a
major drug distributor, and it makes no difference if the cops' mistake was unintentional
or intentional, whether it was egregious or minimal. However minor the police infraction
and however major the criminal, the criminal goes free, and the evidence is suppressed,
and when it is suppressed, it is always the most reliable probative dispositive evidence
that is available. It is in fact a far more applicable rule than we have any idea.
And I know what Alan is doing. He's saying in his experience when a case comes to
litigation, there are very few cases where it is litigated or where the defendant prevails.
In fact even if it is two, three, four, or five percent you are talking about thousands
upon thousands of cases across the country every year. And that is not the extent of the
dimension. Because in fact, search and seizure issues come up in every case where they
can come up in terms of plea bargaining. And because it is so unknowable, it is so
irrational, it is so unclear, prosecutors and defense attorneys are very often arriving at
bargains because neither one knows whether they will win on that issue. So they
compromise and they agree upon sentences which often bear no resemblance to the
evidence in the case or to the seriousness of the crime.
ALAN DERSHOWITZ: But let's think of the implications of your view. You say that the
judge should consider whether the person is a major criminal. The message that sends
to police officers is that if they think it's a major criminal they can, with impunity,
violate the law in the knowledge that the judge will then have to make a discretionary
decision. That judge is free then to let the evidence in.
Think of the enormous pressures on the judge not to apply the exclusionary rule, no
matter how egregious the violation, in the case of a major criminal. It will simply mean
that we have eliminated not only the exclusionary rule, but also the protections of the
Fourth Amendment for people deemed to be major criminals. The wonder of our country
is that we apply our law equally to Mafioso, to killers, to drug dealers, and to what you
regard as more minor criminals. I would hate to see judges bear the burden of the
discretion to have to decide what is the nature of the criminal.
Now I agree with you in terms of the technical nature of the violation; there I think we
can come to some agreement. These cases we hear all the time--you have one in your
book--where the wrong officer gave the warrant or the warrant expired at 6:10 and not
6:15, I'm with you on that, but I am not with you at all on the seriousness of the
criminal. Yes, in fact as Blackstone said many years ago, better ten guilty go free than
one innocent be wrongly confined. He didn't say better ten guilty jay-walkers go free; it
may be that it's ten guilty murderers sometimes and it may be that, in order to really
give life to the exclusionary rule, occasionally we do have to free a guilty murderer.
That's a very, very high price to pay. It's a price that is related as well to the high price
we pay for freedom of speech in this country because speech hurts, speech kills, speech
maims and wounds, and yet we are prepared to tolerate it. And we have to tolerate it. I
think the same thing is true of violations of the Fourth Amendment. I do not want to
have an exception for serious criminals.
HAROLD ROTHWAX: I think we do differ on that. Justice Jackson some years ago gave
an example. He said the problem with roadblocks where you stop everybody who drives
along is obviously that there is no specific information with regard to anybody that
you've stopped. Then he said, in candor, that if they were setting up roadblocks to stop
guys who were carrying gambling slips, he would have trouble sustaining that. On the
other hand, if they were setting up a roadblock to stop a kidnapper who just kidnapped
two young children from their beds, I would feel differently, he said, in my heart of
hearts.
ALAN DERSHOWITZ: I don't disagree with that.
HAROLD ROTHWAX: Then you're saying the seriousness of the charge . . ALAN
DERSHOWITZ: No, I don't want judges to have case-by-case discretion.
HAROLD ROTHWAX: I'm just finishing a thought. I think there is a basis for considering
the seriousness of the charge. I would agree with you that we shouldn't have unguided
discretion. Judges have discretion in every area. In sentencing they have discretion in
terms of bail. I very often have a bad person in front of me and the statute says you
have to consider the following five, six, seven, eight factors: how serious the charge,
how strong the evidence, how likely he'll go to jail. It seems to me you can make clear
what the discretionary factors are, and that makes the judge's decision subject to
review.
ALAN DERSHOWITZ: That's not the point. The point is not whether it's discretion subject
to review, the point is that the purpose of an exclusionary rule is to have an impact on
police conduct. And unless police can know in advance what the impact of their
violations is, then you lose the function of the rule. And if you have as one of the
discretionary elements in the rule how serious the crime is, then it becomes an
invitation to violate the Fourth Amendment when you have very, very serious criminals.
And that is the worst kind of case--you know why?--because you can never get a jury
verdict.
Let's assume somebody in the most egregious way breaks into somebody's home,
tortures him, and gets him to confess to your favorite hypotheticals, the killing of kids
and that kind of thing, and he does it in the most egregiously illegal way. You let the
evidence in because it's a very serious criminal. Subsequently, somebody sues that
person for violating the civil rights of the defendant. Can you imagine any jury in
America holding liable a criminal who has solved the case of a killer of children? So what
you've done is, through the back door, you've abolished the protections of the Fourth
Amendment for a certain class of criminals. Is that what you want to do?
HAROLD ROTHWAX: No, of course that is not what I want to do. What I've indicated
right now is that the police officer, given the unknowability of the law, cannot act in any
way but an irrational way. By having clear factors which are available, then that police
officer can in a meaningful way evaluate the law that can be subject to review by the
judges, and I am in favor of a discretionary exclusionary rule.
ALAN DERSHOWITZ: Okay, so we're 90% in agreement. But let's just understand where
the difference is. We both agree that we should have clear rules, the clear rules ought to
be articulated, the exclusionary rule ought to apply only in cases of clear violations; but
I would make all that mandatory and then not have as a little fudge factor in the end:
"But by the way, police officers, what do you have to lose now?" If I were a cost-benefit
lecturer to a police academy, and your law just got enacted, I would say, "Ladies and
gentlemen, you've heard Judge Rothwax's rule, it's very simple. If the only way to get
evidence of guilt in a case involving a serious criminal is to massively violate his civil
rights, go ahead and do it because at least you've got a good shot through the judge's
discretion of getting that evidence in. And what's the down side? Why not do it? What
would hold you back? The Fourth Amendment? Well, you are a calculating cop. If you
followed the Fourth Amendment, we wouldn't need an exclusionary rule." It is precisely
because police don't that we need the teeth of a mandatory rule.
ROGER COSSACK: Alan, I'm giving the judge the last word on this.
HAROLD ROTHWAX: All right. The point I'm trying to make right now is that nobody
knows the law of search and seizure. The judges don't know it, the lawyers don't know
it, and the police officers don't know it. It is intolerable in a civilized society that we
should be suppressing evidence and punishing, in effect, the police officer for violating a
law that he cannot know and therefore cannot properly enforce. Then what we have to
do, and we do agree, is revisit and reyise the present law that we have right now.
ALAN DERSHOWITZ: But not the exclusionary part of it. The Fourth Amendment part of
it. That is the primary substantive rule.
ROGER COSSACK: I have to call a halt to this because we have a rule utilitarian and a
case utilitarian 90% in agreement. With that I'm moving on to the next topic, which is
confessions. Gentlemen. Judge.
HAROLD ROTHWAX: Well I'm in favor of them.
ALAN DERSHOWITZ: So am I if they occur in church.
HAROLD ROTHWAX: I only insist upon voluntariness. Confession is the beginning of
redemption. It's the beginning of responsibility.
ALAN DERSHOWITZ: It's the beginning of plea bargaining is what it is.
HAROLD ROTHWAX: I'm going to give up inhaling all together. Let me repeat that again.
Confession is good for the soul. It really is. It's a way of redeeming yourself, it's a way
of accepting responsibility, it's a way of returning to society.
The Fifth Amendment says only that no person shall be compelled to incriminate
himself. I believe that fully. I am against torture. There I am, straight out, up front,
against it, okay. But I am in favor of voluntary confessions, and we are the only
democracy in the world that encourages people not to talk. All of the other societies--
western Europe, the British Commonwealth, Scandinavia, decent civilized countries--
they encourage them to talk. And in most of those countries, they do talk.
Miranda is a perversion of that in my judgment. Miranda went well beyond the Fifth
Amendment when it said you have a right to remain silent and a right to have counsel at
the police interrogation stage. If you examine it closely--how about this one?--there is
no right to remain silent. There is no right to remain silent. And why do I say that?
Because they were able to call ninety witnesses in the O.J. Simpson case, and none of
them had that kind of right.
There is a right not to be compelled to incriminate yourself, and that is distinctively
different than a right to remain silent. So the Supreme Court got it wrong. There is no
right to remain silent. Only if you are going to incriminate yourself can we not compel
you; we can compel you if you are not going to incriminate yourself, and I know you
agree with that. And what we were doing in Miranda was encouraging people not to say
anything.
We also encourage them to have counsel. You bring counsel into the police interrogation
stage and you end police interrogation in America. That's the end of it. And the Supreme
Court didn't have the courage of its convictions. If it had the courage of its convictions,
it would have said no confession without counsel. And that would have been tantamount
to saying no confessions at all.
And when does Miranda lead us? It leads us away from voluntariness and into
formalism. Let me just give you one case. I can give you more if need be. There was a
case in New York, People v. Ferrow. Ferrow and his accomplice went into an apartment
to burglarize it. They killed the woman in the apartment, and they stole her furs. Ferrow
was arrested, brought to the precinct, and given his Miranda warnings: "Ferrow, you
have a right to remain silent." "Good to know. I'll remain silent, thank you very much."
They put him in the cell and didn't ask him any more questions. They followed Miranda.
In the meantime the accomplice was arrested, and the furs were recovered and were
brought into the squad room. So the officer was filling out the papers, and the
defendant was in the cell. He saw the furs. He figured, "Oh my God, they've got the
evidence, I'm done," and he started talking. The cops didn't say anything to him, and he
made a confession of his participation in the murder. He was convicted and was
sentenced to life in prison.
Ferrow went off to our New York Court of Appeals--yes, Virginia, we are all in danger; it
is in session--and the New York Court of Appeals reversed the conviction and released
Mr. Ferrow. Why did it do that? Can you think of it just common-sensically, not as
lawyers, just as human beings? Can you think of why he was released? I'll tell you why
he was released. He was released not because the confession wasn't voluntary.
Voluntary? You couldn't have shut him up at that point in time. He was released because
the New York Court of Appeals concluded that when they put the furs down in front of
him, they were indirectly questioning him. They were doing indirectly what they couldn't
do directly. Only--how did Alan refer to them?--rule utilitarians can do that.
So what we're doing is veering away from the Fifth Amendment and the concern with
voluntariness. Now we're into formalism. Was he questioned? Was he not questioned?
Was he in custody? Was he not in custody? Voluntariness is forgotten. We're off in
search of a whole other thing. We're on a search for perfection. And the search for
perfect justice leads you to paralysis. That's why I'm opposed, in brief--there's more to
be said obviously--to the Miranda case.
ALAN DERSHOWITZ: We don't have a lot of disagreement on some of these issues. I
don't think Miranda is a great, thoughtful, wonderful decision. In fact, it reads more like
a legislative enactment which at the very end says, "Oh and by the way, there were four
or five cases that raised this issue. Here's the way we decide those cases." I think it was
a very confused opinion. I think there was an enormous amount of confusion about the
area of confession. I think you are right about there not being a right to remain silent.
There is a right against compelled self-incrimination.
Where we disagree is that confession may be good for the soul, but I'm not in the soul
business, I'm in the liberty business. And if confession were good for the liberty as well
as the soul, I guess as a criminal defense lawyer, since I always want to do what is best
for my client, I would encourage my clients to confess all the time. I would be disbarred
if I did that. I am not supposed to do what's good for souls. There are priests, rabbis,
and ministers for that.
I am supposed to do what maximizes my client's chances of success, which means
confession some of the time, with a plea bargain. It's not the road to redemption.
Obviously, if you know in a cost-benefit analysis that if you confess you get a certain
reduction in sentence, you then confess. If you confess very, very seriously and with
tremendous persuasiveness, you get even more credit. What did they say in Hollywood?
Integrity is the essence of good acting; if you can fake that you can fake anything. And
that's true of confession. You know they now have standards in the federal court
guidelines where if you can show genuine remorse, you get an extra point. You should
see the way defense lawyers and miserable, horrible, calculating defendants work out
the language of remorse and confession. It has nothing to do with the soul. It has
everything to do with how we calculate and how the system is played.
Let me tell what I think really is at stake here. And I have to disclose my own
involvement in this. I was the draftsman of the original draft opinion in the Escobedo
case. I was clerking for Justice Goldberg a few blocks from here when Escobedo came
down. And what we thought in that case, and what I still think, is that that case is about
your right to know about your rights. That is, we should not live in a society where we
have rights, and then we deny the poorest and the least well-educated citizens the right
to know about those rights. And the right to employ those rights. I would agree with you
that we can constrain again the ultimate right under the Fifth Amendment, but we have
to apply it equally to all people. We have to make sure that the wealthy, corporate client
who goes into the grand jury fully aware or goes into an interrogation fully aware of his
rights does not have significant benefits or advantages over the poor person taken in off
the street who was tricked into waiving his rights because they don't think it's good for
their soul. They may be told it's good for the soul. The wonderful Christian burial speech
that you suggest in your book, the guy who gave him that speech had no interest in the
Christian burial, he had an interest in putting this guy in jail where he belonged. And so
it seems to me the issue is, do we want a system in which there are rights that we then
can't live with and have to do everything in our power to get people to waive, or instead
should we figure out what rights everybody can have in our society and then make sure
that equally those rights can be applied across the board? That is what I think
Escobedois all about.
HAROLD ROTHWAX: I couldn't disagree more with Alan in this area. I wonder, Alan,
since you are so much in favor of equality, you know we have a lot of criminals who are
very sophisticated and lot of criminals who are unsophisticated. We catch a lot more of
the unsophisticated ones because they're dumb. So maybe before they get arrested,
just to bring them to a level of equality, we ought to send everybody to a school for
scoundrels, where everything can be brought up to the same level . . .
ALAN DERSHOWITZ: It's called prison.
HAROLD ROTHWAX: Then you do agree with me.
ALAN DERSHOWITZ: No, I don't. I think there is a difference between rights and
between tactical information about crime.
HAROLD ROTHWAX: What you are doing is talking about a fox hunter's game--sporting
contests.
ALAN DERSHOWITZ: Equality is not a fox hunter's game; it is a much more serious
thing.
HAROLD ROTHWAX: Well I'm going to address it. Because I think it is a fox hunter's
game. It seems to me that cops have a right, if they arrest somebody on probable
cause, to speak to that person without becoming counselors, educators, advisors, and
so on.
ALAN DERSHOWITZ: That's right. That is why we need lawyers there who play that role.
HAROLD ROTHWAX: Then what you want is the end of police interrogation in America.
Then speak freely and candidly as you are so proud of doing.
ALAN DERSHOWITZ: Yes, if we are going to have a rule that is uniform across the
board, I agree with you, I think the rule should have been no interrogations can occur
outside the presence of counsel.
HAROLD ROTHWAX: That has the virtue of clarity, whatever else it may lack, which in
my judgment is considerable.
ROGER COSSACK: We're running a little short of time. I'm going to change the rules
quickly here. We were supposed to talk about the role of the defense lawyer, but we
kind of already have. I want to bring up another issue. We're talking about the Fifth
Amendment. Judge, the right to remain silent and not have it commented upon in court.
You bring that up in your book. Alan, O.J. Simpson didn't take the witness stand. I
would like to hear your thoughts on that.
ALAN DERSHOWITZ: O.J. Simpson didn't take the witness stand in that case because
every lawyer on the face of the earth who would be worthy of having a ticket to practice
law would have recommended that he not take the witness stand in that case. That
would be as true were he guilty as it would if he were innocent. Because it would have
been utterly foolish to have him take the witness stand, no matter how compelling, no
matter how convincing his testimony would be, because we had won the case by
effectively demonstrating that the police had perjured themselves and had arguably
tampered with evidence. We had succeeded in putting, as the Constitution suggests, the
prosecution and police on trial because they have the burden of proving their case.
Under our Fifth Amendment, since we are not obliged to put our client on the witness
stand, we have to make only a tactical decision. The tactical decision clearly--it was a
no-brainer for anybody--would be that he would not take the stand.
Under Judge Rothwax's system that would then result in an instruction from the judge:
"Ladies and gentlemen of the jury, you heard the defendant decline to take the stand.
You should infer from that that he is probably guilty." That would be a false inference.
That would not serve the interest of truth. And let's not get into the Simpson case
because obviously reasonable people can disagree. I can tell you that I have had cases
of totally innocent clients, totally and completely innocent clients, who I have advised
not to take the witness stand because they would be bad witnesses--they are not
likeable, they are defensive in the way they answer questions. For a judge to instruct
the jury, as they now do in England, that a client not taking the stand should create
some kind of inference of guilt would absolutely disserve what you think are the
interests of truth. In many instances the truth clearly is on the side of the defendant,
and there are tactical reasons for not doing so. Now you might say, "Let's change that
rule, let's create a system where there are never tactical advantages in not taking the
witness stand, where the only people who would not testify are people who clearly are
guilty."
You have to understand there are two different privileges against self-incrimination. A
lot of people confuse them. In a civil case, I as a lawyer have to make a representation
to the court that my client, if he answers this question truthfully, will tend to incriminate
himself. That was what was done to Fuhrman in the case. In a criminal case, I don't
have to make that kind of representation. I don't have to make any kind of
representation. I have an absolute right not to put him on the witness stand even if his
answers would not tend to incriminate him. And you are confusing, Your Honor, the
second with the first privilege. You are confusing the civil privilege with the criminal
privilege. In the civil privilege, an inference is proper because a lawyer has to make a
representation that a truthful answer will incriminate, but in the criminal context it's not.
In the Simpson case, they got it all backwards. Because Fuhrman took the Fifth when he
was asked the question, "Did you plant evidence?" And the jury never learned about
that. The jury should have learned about that. Because you can draw an inference from
an honest invocation of the Fifth Amendment privilege. But Simpson's not taking the
stand warrants no inference whatsoever.
ROGER COSSACK: Judge, he says the witness gets it but the defendant doesn't.
HAROLD ROTHWAX: Let me respond. First of all, preliminarily, let me assert that Mapp,
Miranda, and Griffin v. California, which is the case we are now talking about, were all
decided 5-4. They were not decided by the Founding Fathers. They were all decided in
the 1960s. Until 1965 any state in this country that wanted to could have a judge
instruct the jury that you have a right to draw an adverse inference. That was changed
by Griffin. It's important to note, and Alan doesn't mention it, that right now in our
jurisprudence we have a multitude of presumptions. I hope that those of you who have
taken Evidence at Georgetown have learned about those. I'm sure with Professor Dash,
you have. There is a presumption that if you are in recent and exclusive possession of
stolen property, and that is unexplained or falsely explained, one can draw an inference
from that, and there are other . . .
ALAN DERSHOWITZ: That's a reasonable inference.
HAROLD ROTHWAX: Just inhaling. So there are lots of inferences which a jury is
permitted to draw even though the defendant remains silent. Is this a reasonable
inference? Alan says it's not. Eleven years after Griffin there was the case of Baxter v.
Parmagiano. Baxter was a prison inmate who was accused by a prison disciplinary board
of engaging in a riot, and he was possibly subject at a later time to criminal prosecution.
He came before the disciplinary board and said, "I refuse to answer on the grounds my
answer may tend to incriminate me." The prison disciplinary board said, "We are going
to draw an inference that you are involved; we are going to draw an adverse inference if
you assert that privilege." The Court allowed it, and that is the law in the United States-
-which is why Simpson and others in civil cases give depositions and testify. Now how
does the Supreme Court distinguish between Baxter and Griffin? Not the way Professor
Dershowitz would have us believe.
ALAN DERSHOWITZ: But you should answer my distinction as well; don't put it all on
the Court.
HAROLD ROTHWAX: I'm sorry I'm focusing on the Supreme Court and not you, Alan.
ALAN DERSHOWITZ: After you have disposed of the Supreme Court, get to my
distinction.
HAROLD ROTHWAX: How does the Supreme Court do it? And when you read these
opinions you wonder whether you would have been flunked as a law student if you
wrote them. So the Supreme Court in the lengthy Baxter opinion, forty pages long, gets
to it and it says, "To the degree that this opinion is inconsistent with Griffin, we decline
to extend it to this area." End of analysis. End of review.
ALAN DERSHOWITZ: I agree.
HAROLD ROTHWAX: I know you agree but that's not an analysis.
ALAN DERSHOWITZ: I agree that's a terrible analysis.
HAROLD ROTHWAX: It's a terrible analysis. In Steinberg, he sat there for three months-
-he was the only one in the room with little Lisa whom he allegedly killed. Thirty or forty
witnesses came in and testified, he heard it all. At the end of the case, I concluded there
is enough to convict him if the jury credits the evidence. Steinberg said, "Thank you, I'd
rather not testify." He had every right to; I didn't want to compel him to. And I said to
myself, "Why do I have to tell this jury, why do I have to deny them the right to draw a
reasonable inference?" Alan, in a way, says because it's not the only reasonable
inference and that's not good enough.
ALAN DERSHOWITZ: That's not what I'm saying.
HAROLD ROTHWAX: Well that's how I interpret . . .
ALAN DERSHOWITZ: Let me tell you what I'm saying. What I'm saying is it's not the
proper inference in every case. And that is--what would you do? Would you distinguish
between cases where it is a proper inference and cases where it is not?
HAROLD ROTHWAX: I agree with you. There are cases where it would be improper to do
that. Indeed California, in People v. Modesto, the year before Griffin, dealt with that
exact problem and held that judges should not charge where it is not proper to do that.
So yes, the judge should have to make an inquiry as to whether in that particular case
an adverse inference could reasonably be made.
ALAN DERSHOWITZ: Tell me about that inquiry. How would you make an inquiry to
decide whether or not it's a proper case to draw an inference? It's impossible to make
that inquiry. What are you going to do? Ask the lawyers, "Pest, by the way, is he really
guilty?" How would you possibly make the decision? Let's take the Simpson case. Would
you draw the inference in the Simpson case?
HAROLD ROTHWAX: I'm not close enough. I'm close enough to Steinberg. Let me tell
you Steinberg.
ALAN DERSHOWITZ: Oh, but I want to talk about Simpson. I wrote the book about
Simpson and you wrote the book about Steinberg.
HAROLD ROTHWAX: Next week we'll come back and talk about Simpson. We'll come
back, they like us here. Steinberg is alone in the room. He admits he was alone in the
room when Lisa was rendered unconscious. He brings her out of the room and with care
and devotion he put her on the bathroom floor and went out to dinner. Very concerned
parent. Okay. Now the issue is what happened. There was plenty of evidence from his
statement, from Hedda Nussbaum, from others, that he was alone in the room with the
child. And what happened in that room alone with the child is crucial. He is now given a
full opportunity to explain or deny what happened in that room and he says, "I decline
to do so." Can a reasonable adverse inference be drawn?
ALAN DERSHOWITZ: No, let me tell you why. You don't have enough information. Let's
assume the following occurred. Let's assume Steinberg is my client and he comes to me
and he says, "This is really terrible, you know Hedda really beat this kid," and I say,
"Wait a minute--you're not going to say that Hedda beat the kid. You are going to look
like an absolute idiot up there, nobody is going to believe you, that is as stupid as
Simpson saying he was a battered spouse. No one's going to buy that." So I tell you,
"Even though you're innocent, even though you had nothing to do with it, I'm going to
give you some advice. It may be hard to take."
By the way, innocent people want to take the stand, they have to be kept from taking
the stand by their lawyers. The lawyers are the ones who keep them off the stand
because we are the surgeons, we're the experts.
So I say to Steinberg, in my hypothetical, "I'm not letting you take the stand, I'm just
not letting you do it. I know what's in your interest. You are going to get up there and
you are going to tell the truth. But you are going to look like an absolute idiot, and
nobody is going to want to acquit you. You are just better off not doing it." So if you had
suggested an inference in that case you would have been wrong. And you can't know
which of these two cases is the reality.
HAROLD ROTHWAX: I humbly submit to you Alan that to me, the issue is whether or not
a reasonable jury could draw a reasonable adverse inference, and I believe in the
Steinberg case that they could.
ALAN DERSHOWITZ: Because you are the thirteenth juror in that case.
HAROLD ROTHWAX: No, and you are making yourself the center of the process, you're
saying, "I'm the one who is determining. I want a system that will encourage this
revelation of truth." If it is a reasonable inference, we should not deprive the jury of the
right to make it.
ALAN DERSHOWITZ: And the only thing we are disagreeing about is whether in a
criminal case where the vast . . . Let me put it this way: If 70% of criminals charged
with crime are guilty, maybe it's 80%, in 95% of the cases the defendants don't take
the stand. So there is a substantial difference between cases where the defendant is
guilty and cases where the defendant doesn't take the stand. In the vast majority of
cases involving innocent defendants, they do not take the stand. They don't take the
stand if they have a prior offense. They don't take the stand if they have some
embarrassing thing in their past which can come out. They don't take the stand if they
are lousy witnesses. They don't take the stand if they have lazy lawyers who don't
prepare them to take the stand. There are a lot of reasons why they don't take the
stand.
And I think in the end if you allow an adverse inference to be drawn, and again you go
back to judicial discretion--Your Honor, you just trust judges more than I do--that in the
end would not serve the interest of truth. By the way, juries already draw some adverse
negative inference from the very fact. We take that into account when we advise our
clients. We discount the disadvantage of taking the stand by the disadvantage of the
inference that is already drawn. Putting the judicial imprimatur on that inference would
even further disserve the interest of truth.
HAROLD ROTHWAX: There is always the assumption in your remarks, Alan, that judges
are going to do whatever they please. I'm very aware . . . I'm trying a murder case as
we speak, and the D.A. tried to get in evidence today, and I said, "No, that comes in
and it's pure reversible error. It's not coming in." So judges are gatekeepers and
presumably, if they are doing their jobs properly, they are controlling the flow of
information.
ALAN DERSHOWITZ: Just one more brief thing. You know you really do put a
tremendous amount of burden on the Warren Court. And all of these problems are not
the fault of the Warren Court. This is an extreme statement that appears on page 144:
"Plea bargaining has been a dominant factor of our system since the Warren Court
revolution." What? There was no plea bargaining? It wasn't as dominant? I have to tell
you there was considerably more plea bargaining. The Warren Court had zero to do with
plea bargaining, but you would blame the Warren Court on the drop of the stock market
today.
HAROLD ROTHWAX: Let me explain what I mean by that. Before the Warren Court you
didn't have a multitude of pre-trial hearings. Once you have a multitude of pre-trial
hearings, the defendant has that much more power and leverage to burden the court.
ALAN DERSHOWITZ: So you're saying they just get better plea bargains. Not that there
are more of them.
HAROLD ROTHWAX: The defendants get better plea bargains.
ALAN DERSHOWITZ: Yes, but that's not to indicate that there are more.
HAROLD ROTHWAX: There is much more plea bargaining because there is much less
trial capacity. It takes nine months to try a Simpson case.
ALAN DERSHOWITZ: That has nothing to do with the Warren Court. Trial capacity has to
do with burgeoning population, has to do with increasing crime rates, it has nothing to
do with the Warren Court. Just like the safety, or lack thereof, of our streets has nothing
to do with the Warren Court.
If tomorrow you were appointed the Chief Justice and appointed as your eight
associates Scalia, Scalia, Scalia, Scalia, Scalia, Scalia, Scalia, and Thomas, let me tell
you nobody in this room would be any safer. And if the President of the United States
were to appoint Peter Newfeld to the Supreme Court and he appointed Barry Scheck and
seven others like that, we wouldn't be any safer. The ultimate fallacy of this book, and
the way I think the public is reading it, is that somehow these rather technical issues
growing out of the Warren Court's revolution in remedies, which was part of our process
of desegregation--it was part of our process of expanding a whole range of equal rights-
-somehow that is to blame for burgeoning crime rates. It has almost nothing to do with
it, and we should at least debate the issue honestly in terms of the integrity of the legal
system. That's what is at stake, not the impact of these rules on massively freeing guilty
defendants, or massively increasing plea bargains--quantitatively you lose this debate.
Qualitatively you have a lot to say, and I think it would be better to focus on the
qualitative issues and not create the misleading impression that this is causing what
many Americans are very upset about. We already have too many politicians out there
who are using our fear of crime as a way of trying to get us to cut back on important
political safeguards. I think it does a disservice when judges contribute to that
atmosphere.
ROGER COSSACK: Judge, I want to give you the last chance to respond.
HAROLD ROTHWAX: First I was going to thank Alan for joining in this debate with me
and for having an hour long discussion in which we have, until I think the last moment,
avoided any personalities whatsoever. So I do sincerely thank you for that. I do
disagree that I am contributing to some kind of political cause in which I am aiding
politicians and dumping down on the courts. In my view my book is not ideologically
driven--it is an argument against the irrationality and foolishness. There should be more
debates between you and I, and others like us, where we can avoid personalities and
stick to the issues as we have. It's a good idea, I welcome it. We'll have to do it again.
ALAN DERSHOWITZ: I think the two issues we didn't discuss tonight--and we really
have to understand that we must discuss them--are the relevance of race and the
relevance of wealth in the administration of justice. And it's very important that we
discuss those issues. One you do discuss in your book, wealth; the other you don't,
race. And I think we can't discuss the criminal justice system without focusing on that.
O.J. Simpson would be in prison today if he did not have the wealth and the resources
to challenge at every turn the L.A.P.D. forensics, the labs, to get the material about the
Fuhrman tapes.
Let me end that with one of my favorite lawyer's jokes about that issue. And that is the
question, if you were drowning, God forbid, and three people offered to throw you a life
raft, which one of the three would you accept the life raft from--the Easter Bunny, the
high-priced lawyer, or the moderately-priced lawyer? The answer is the high-priced
lawyer because the other two are figments of your imagination.
ROGER COSSACK: With that, I want to thank everybody for coming tonight. We have
seen two great intellectuals and two wonderful spokesmen giving their sides of the
debate. I must also tell you that I missed Greta tremendously tonight. She would have
handled this much stronger than I did. Thank you very much for coming. One moment.
Please don't leave--I think there is going to be a book signing and a chance to speak
with these men.
MICHAEL CARROLL: On behalf of the American Criminal Law Review, I want to thank
Professor Dershowitz and Judge Rothwax for both an engaged and engaging debate.
Judge Rothwax mentioned that there ought to be more debate, and we take up that
proposal. In April, we will have Johnnie Cochran here to debate against Professor Akhil
Amar from Yale on a very similar topic, about how the criminal justice system might be
reformed--how the Constitution might be read differently. On the second floor atrium--
and there will be signs directing you there--both Professor Dershowitz and Judge
Rothwax will be signing copies of their books if you are interested in purchasing those,
and there will be some light refreshments available. I invite you all to join us, and thank
you very much for coming.
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