When Liberals Get Tough

...Indeed, it is often not a search for the truth...

...Few recent judicial complexities will put a police officer in a foul mood faster than this rule, and Rothwax is right in saying that the rule has been a major obstacle to consistent justice in America...

...This rule excludes evidence from criminal trials obtained in violation of the Fourth Amendment...

...Before his elevation to the bench, Rothwax was the senior trial attorney for the Criminal Defense Division of the Legal Aid Society...

...Miranda, of course, did not create this right...

...Simpson's attorneys, sought a postponement in a case pending before Rothwax so that he could pursue the Simpson matter...

...This was the same ACLU in which, judging from his biography, Rothwax was a leader at the time...

...This right once made sense when subjects were being tortured at the behest of a king, the environment in which the Fifth Amendment was drafted...

...The result, Rothwax bluntly warns, is that the exclusionary rule liberates "people who are clearly criminals...

...The rule has now multiplied to the point that in New York state, 20 to 30 exclusionary rules limit the admissibility of incriminating evidence...

...This privilege, too, is widely misunderstood and without solid justification...

...These include: "abandoning" Miranda, limiting peremptory challenges, requiring less-than-unanimous jury verdicts, and allowing American judges a "more active role in the courtroom...

...Andrew Peyton Thomas is an assistant attorney general for Arizona and author of the book, Crime and the Sacking of America: The Roots of Chaos...

...He envies the judge-centered legal systems of Europe, which greatly limit the power of lawyers and thus guarantee greater equality among the litigants...

...My law school students," he adds wryly, "are quick to mock the Ten Commandments-or at least some of them-but the first ten Amendments to the Constitution, the Bill of Rights, is holy writ and not to be questioned or critically examined...

...Rothwax observes that the exclusionary rule has no basis in the Fourth Amendment itself, but is merely a recently invented gimmick designed to give the amendment teeth...

...Books When Liberals Get Tough By Andrew Peyton Thomas In a crime-beleaguered age that cries out for both tougher crime control and greater personal responsibility, the new book by New York Judge Harold J. Rothwax carries a title that is sure to be greeted with public approval- Guilty: The Collapse of Criminal Justice (Random House, 238 pages, $22...

...Curiously, however, Rothwax does not argue for the simple repeal of the rule...

...The word "reasonable," of course, is one of those classic lawyerisms that are inherently indeterminate and likely to spawn a dozen new cases for every one they resolve...

...The book concludes with a list of proposals justifiably billed as "common sense" reforms of the system...

...Elsewhere, Rothwax's solutions seem similarly tentative and far short of what is required to reverse the system's admitted collapse...

...He bravely calls for the repeal of Miranda but says nothing about the continuing need for the underlying right against self-incrimination...

...The book proceeds in steady, sequential fashion to assess the various constitutional amendments in the Bill of Rights that have been judicially altered to frustrate the nation's ability to punish criminals...

...But life in the courts is no longer that simple...

...He notes that in America, "the law is not necessarily a search for the truth...

...And given the courts' recent history of misapplying the law to effect the release of offenders, this court-centered inquiry could easily result in more of the same...

...Most remarkably, in his discussion of Mapp v. Ohio, Rothwax notes that the Fourth Amendment issue was never even discussed by the lower-court judges who considered the case...

...When, however, Neufeld eventually reneged on his pledge, a furious Rothwax chided him publicly for his prevarications and self-service...

...it merely required policemen to publicize it...

...Rothwax hands down a similarly harsh indictment of the Miranda decision, whose rules have become ingrained in the public consciousness through three decades of TV cop shows in which the words "You have the right to remain silent" are as oft-spoken as "Freeze...

...In short, nowhere does he tell us who is truly "guilty...

...But the ACLU never comes in for any criticism...

...Indeed, there is seemingly no better time than the present for offering such reforms, as the widespread disgust with the Simpson trial and with intractably high crime rates has dramatically heightened public awareness of these problems...

...This is very good news, because a mass reading of this book may well place enough pressure on policymakers to overcome the current opposition to meaningful reform...

...The reader is encouraged to learn that, despite these affiliations, this New York City judge takes pride in imposing stiff punishments and criticizes many of the Warren court decisions that have made his job of dispensing justice so unmanageable...

...The judge nevertheless seems resigned to the present arrangement and nowhere calls for the abolition of this practice...

...He finds the evidence of Simpson's guilt overwhelming...

...In the final analysis, Rothwax does not have the genuine courage of his convictions...

...However, the simple, common-law rules against torture and coerced confessions suffice to bar such evidence from trial and to lessen our present-day loyalty to this antiquated right...

...Such a rule is subject to the same inconsistent application that Rothwax rightly decries in regard to the current exclusionary rule...

...But while this repudiation of 30 years' worth of judicially minted criminals' rights-and presumably of the ACLU leaders and others responsible for this upheaval-has all the makings of an important confession of wrongdoing by someone present at the creation, this promise of literary justice served proves illusory...

...The police's failure to give this warning requires courts to suppress any confession subsequently received, no matter how voluntary...

...Things have grown much more complicated because the Supreme Court has imposed unworkable and dangerous requirements on policemen and prosecutors...

...The judge takes issue with the Warren court for its "activist" techniques, describing its personnel as "willful men with an agenda...

...Now it has become another criminals' right that benefits lawyers but has no constitutional basis and no social value...

...America is the only nation in the world that follows the exclusionary rule, save for the Philippines, which still bears that vestige of Yankee colonialism...

...His discussion of the Warren court is most instructive in this regard...

...In a crime-beset nation that can support annual federal budgets of more than $1 trillion, surely enough money can be found to honor a defendant's right to a jury trial and prevent plea bargaining's open mockery of our judicial system...

...Theatrics, not truth, is the guiding principle...

...But he knows better than to take on the bar by questioning America's lawyer-dependent adversary system, even though this system is increasingly an economic and moral drain on our society...

...The issue arose, he admits, only in a small point at the end of a Supreme Court brief filed by the ACLU...

...Courts, he says, should "determine whether the search and seizure is reasonable by considering all relevant factors on a case-by-case basis...

...Its repeal would merely restore the Fourth Amendment regime that preceded the 1961 Supreme Court decision in Mapp v. Ohio, a regime that worked far better than the current one...

...The judge also lambastes the Simpson defense team for a "contemptuous" strategy of inciting racial animosities to obtain an acquittal...

...In Guilty, he proves a splendid diagnostician of the failures of liberal criminal justice-but when it comes to naming causes, and suggesting cures, he is less physician than politician...

...The judge's most comprehensive rebuke to the legal system comes in his questioning of the role of truth in the criminal justice process, as well as the role of lawyers generally...

...For instance, that "major culprit" behind the collapse of the system, the exclusionary rule, comes in for relatively light sentencing at the judge's hands...

...The "major culprit in the malaise-ridden judicial system," the judge believes, is the way the courts interpret the Fourth Amendment...

...Strength is the ultimate test...

...The privilege was once held by the attorney rather than the client because members of the bar in the 17th century wished to avoid the unseemly business of testifying in court...

...The book is a forthright, slender manifesto that lacks footnotes and is written in an easy, first-person style that may earn it a wide audience from a public frustrated and impatient with America's malfunctioning criminal justice system...

...Neufeld gave his word "as a man of honor" that he would not seek another continuance, pleading that his "fame and fortune rely on Simpson...

...Finally, or so it would seem, a judge with important credentials on the left is prepared to assign blame for the erosion of Americans' most important right, personal security, over the last 30 years...

...In these and other, related shortcomings can be found the central flaw in Rothwax's reflections...

...Such statements are a radical critique of our system of justice, and they ring true...

...Judge Rothwax recalls that "only thirty-five years ago, our criminal justice system was relatively simple: A person was arrested, indicted, and tried...

...The judge's critique of the court system as a whole falls prey to the same hesitancy...

...But Rothwax argues instead for making the test one of "reasonableness...

...He's too busy biting his tongue to tell the truth, the whole truth, and nothing but the truth...

...He criticizes plea bargaining and its providing of a "discount" of lesser punishment to criminals...

...Courts have converted the amendment's prohibition against unreasonable searches and seizures into the so-called exclusionary rule...

...One of the high points of the book is the judge's tale of how Peter Neufeld, one of O.J...

...To be more bold, to propose the kind of dramatic reforms necessary to eliminate the problems hobbling the system, Rothwax would have to relinquish his credentials as a socially accepted member of the bar and former leader of the ACLU...

...As for the lawyers who work within this system, they are often a self-centered bunch devoted to exploiting the system for personal gain or for promoting an extreme vision of rights...

...But he also calls it, oddly, both "inescapable" and escapable-that is, escapable only if we are willing to fund our courts more generously and to make them run more efficiently...

...Rothwax explains that the Warren court "manipulated" the Miranda case to change the Fifth Amendment's right against self-incrimination into a separate requirement: that policemen inform suspects of this Fifth Amendment right before questioning them, and in elaborate and unprecedented detail...

...The rule could be abolished with few ill effects, and policemen could be punished individually for their actions...

...He was also, the publisher informs us, "a card-carrying member of the ACLU"-indeed, a vice chairman of the New York Civil Liberties Union...

...A reader searching for such an acknowledgement or explicit sign of remorse will be as disappointed as Rothwax tells us he is upon peering into the blank faces of today's hardened criminals...

...He admits, "I sometimes feel as if I am the centerpiece in a gladiator ring...

...To prove his point, Rothwax centers the narrative on a parade of horribles-a recounting of outrageous court decisions ranging from Miranda v. Arizona to less known cases in which defendants clearly guilty of heinous crimes went free because of baffling rulings...

...Yet given the judge's sweeping condemnation of so much of the criminal justice system, the reader has good reason to wonder why more thoroughgoing reforms are not suggested...

...Likewise, Rothwax notes the harmful effects of the attorney-client privilege, but does not question its validity...

...Altogether absent from this book is any frank admission that his former associates in the civil liberties bar were terribly wrong for avidly pursuing these court rulings and for stimulating the self-centered, litigious popular culture that has ensued...

...In stunning language, Judge Rothwax calls the Miranda decision "folly-a terrible decision atop many other terrible decisions...

...Regrettably, the changes urged by the judge are not the sort of dramatic reforms that would correspond to his earlier, radical critiques of the criminal justice system...