A Trial Judge's Brief

...Thus Fleming's exasperation with the present state of criminal justice may on the whole be well-modulated, and he is no alarmist, yet the reader should be advised that even today criminals are usually packed off to jail...

...He believes strongly in providing lawyers to the poor, for instance, and in suppressing evidence obtained by genuinely unfair and oppressive police tactics...

...Unlike the hearings or investigations the Legislature may undertake, briefs are a part of the adversary system, and their goal is victory rather than the faithful representation of reality...

...Court of Appeals in New York has said: "For all our work on thousands of state prisoner cases I have yet to hear of one where an innocent man had been convicted...

...Similarly, he maintains, their pronouncements on social policy reflect the narrow and sometimes distorted view of reality presented in the briefs of the lawyers who handle the special kinds of cases that come before them...

...This is more likely to deprive us of the wisdom of many learned but aging justices than to inspire those sitting on the Court with humility, and it errs gravely in tampering with the independence they now retain...

...Lest Fleming be accused of favoring a return to the Star Chamber, it should be noted that for the most part he opposes only the excesses, not the fundamental goals, of the recent reforms...

...One cannot help wondering whether Fleming's desire to restore the more traditional balance is not a bit of special pleading, for the aggressiveness of the Federal courts has brought them power and prestige far exceeding that enjoyed by their state-level counterparts...

...His central criticism is of what he sees as a deeply harmful distortion in our system of justice: "the shift of emphasis from...

...Such petitions take up a good deal of the Federal judges' time, and the California jurist observes that Justice J. Edward Lumbard of the U.S...

...To return to the strength of Fleming's book, it offers a valuable reminder that criminal procedure must not be allowed to become an abstraction: It cannot be judged in isolation if we are to preserve a system of criminal justice whose goal is not only to protect the rights of the accused, but also to punish those whose guilt is proved beyond a reasonable doubt...

...Consequently, Fleming asserts, in criminal procedure their rulings are ill-informed and manifest a misunderstanding of the facts of life encountered by judges and prosecutors...

...As an alternative, he cites with favor the more flexible British practice of allowing a judge to admit or suppress evidence in a given case on the grounds of fairness to the accused and the degree of excess exhibited by the police...

...instead, it should be judged by its ability to facilitate just determinations of guilt and innocence...

...Fleming argues that in ruling on issues like school busing, racial quotas and abortion, the Supreme Court has not only wrongly taken it upon itself to decide social policy, but has usurped the Legislative role at the cost of neglecting its Judiciary duty to see that justice is done in individual cases...

...Though Fleming does acknowledge the benefits of some Warren Court rulings, he is greatly concerned about the price we pay for them: "If criminal procedure is unable promptly to convict the guilty and promptly to acquit the innocent . . . in a manner that retains public confidence in the accuracy of its results, the deterrent effect of swift and certain punishment is lost, the feeling of just retribution disappears, and belief in the efficacy of the system of justice declines...

...Many of the recent "reforms," he warns, have hindered rather than helped the attainment of this goal...

...In Fleming's view, the effort to "perfect" the judicial process in isolation, as if in a scientific experiment, is a gross error...

...Now, in The Price of Perfect Justice Macklin Fleming, who sits on the California Court of Appeals, attempts to give it an additional shove...

...The result, however inadvertent, is an inaccurate picture of a system that, for all its faults, continues to function reasonably effectively...

...In the battle over constitutional law fought among police, prosecutors, Federal judges, and defendants, Fleming speaks for a long-silent group—the state court judges who try the vast bulk of criminal cases...

...This is often done, he explains, through petitions for habeas corpus, under which the Federal courts may review state criminal convictions that have been refused direct appeal by the Supreme Court...

...But since these protections are already generally taken for granted, he concentrates on horror stories where criminals succeed in escaping justice to underline what he finds objectionable...

...Too often in this preoccupation with procedure, Fleming complains, "Guilt becomes irrelevant...

...Therefore, says Fleming, the justices simply do not have the information needed to understand the full implications of the social rulings they are handing down...

...In his opinion, the Federal bench has gone too far in recent years, allowing defendants to retry their cases, without juries, on the flimsiest pretext of procedural irregularity...

...Fleming comes up with only one proposal for trimming the Federal sails, and it is not terribly helpful: that Supreme Court justices be appointed for 16-year terms instead of life tenure...

...One can only sympathize with Fleming while he recites tale after tale of justice delayed, or thwarted entirely, by resourceful defendants who manage to play the state courts off against the Federal by diverting attention from their own activities to procedural imperfections...

...Indeed, a study sharing many of Fleming's misgivings about habeas corpus procedures, published recently in the Harvard Law Review, concluded that their disruptive effects have been exaggerated by most critics...

...This, he points out, does not punish the police for their misconduct, but simply frees the guilty and penalizes society at large by reducing its protection from criminal behavior...

...the determination of the guilt or innocence of the accused to the determination of the correctness of the procedure used in his prosecution...

...The Price of Perfect Justice is weakest, I think, when its author turns political scientist and addresses himself to the balance of power between judges appointed with life tenure and legislators responsible directly to the electorate...

...Nonetheless, his criticisms are consistently well-informed and well-reasoned, and there is no denying his contention that, under the Constitution, state and Federal courts are meant to be of equal dignity and equally responsible for enforcing individual rights...

...With the advent of the Burger Court, the pendulum started to swing back toward the center...

...At one point Fleming sets forth a 26-stage scheme for delay and obfuscation that could enable a defendant to escape sentencing for years by shuttling back and forth between state and Federal courts and between procedural and substantive issues...

...Still, Fleming does contribute the useful perspective of the trial judge when he points out that of the present Supreme Court justices, eight have no criminal court experience whatsoever, while the ninth (William Brennan) spent a grand total of two years presiding over trials...

...Reviewed by Elliott Abrams Since the early 1950s, when the Warren Court began issuing its controversial decisions reforming the criminal justice system, opposition to their "liberalizing" effects has been building...

...Fleming is especially peeved by the "exclusionary rule" of Mapp v. Ohio, prohibiting the use of illegally seized evidence...