Rothwax, 65, did not always take such a hard line. Early in his career he was a trial attorney for the Legal Aid Society and a vice chairman of the New York Civil Liberties Union. But since becoming a judge, he has come to see the system as one in which the rights of defendants are overprotected. Rothwax and his wife, Yona, a public school psychologist, have two grown children and live in Manhattan. Rothwax spoke with correspondent Ron Arias.
Why do you believe our criminal justice system is close to collapse?
We've become much too concerned with technicalities that have nothing to do with the search for truth. All too often the guilty go unpunished. The fact is, most defendants who come to trial are probably guilty. Whenever I say this, people look at me as if I was a man from Mars. But it is so. Meanwhile, defense attorneys—who are mostly representing guilty people—see their role as being to confuse, distort or suppress evidence. Or to get dumb jurors impaneled who won't be able to understand the evidence.
That's a surprising attitude coming from an ex-defense attorney and former member of the ACLU.
When I started practicing law, my idol was Clarence Darrow, a champion of justice who fought against the abuse of power. Like him, I often identified with the underdog. During 12 years as a trial lawyer I represented indigent people, political radicals and others put upon. I still think of myself as an idealist and that the law should be something we admire and respect.
But now I believe America is fast becoming a nation of bad laws, in which criminals and defense attorneys hide behind a morass of poorly conceived statutes, procedures and rulings that prevent courts from resolving the main question: Did the accused commit the crime?
What specifically would you change about the system?
We have to reexamine Miranda—the right to remain silent when a person is arrested. In my book I mention this man who flies from Boston to Denver to confess to a murder he committed months before. He walks up to a uniformed cop and says he wants to confess to a murder. The cop says, "Wait! Don't say anything." The cop calls his sergeant, who says, "Hold on, I'm calling homicide." And homicide says the same thing! I mean, this is like a Marx Brothers comedy. This guy wants to bare his soul, and we're not letting him do it. Ridiculous! Finally he was "Miran-dized" and confessed.
What the Supreme Court did when it made the Miranda ruling in 1966 was to urge the defendant to remain silent. Why didn't they say, "We cannot compel you to incriminate yourself, but you have a moral obligation if you know about crime to tell us about it." We're the only democracy in the world that tells people they have no obligation to say anything. But there's a big difference between beating someone to get a confession out of him and urging him not to confess.
The Warren court tried to make the system more fair and swung the pendulum too far in favor of the defendant. I'm simply trying to bring the pendulum back to the center.
What about right to counsel?
A suspect's right to attorney should be restricted to the trial and pretrial periods. If you allow counsel at the interrogation, that's the end of police interrogation. It'll be harder to solve crimes. Any lawyer worth his salt is going to say, "Don't say anything." This is absurd. Better to do away with Miranda, and to protect against police abuse of defendants by videotape interrogations.
What's your view of the O.J. trial?
It was hardly a sober, serious search for truth worthy of our respect. We had a group of immature show people who continually fought with one another and a judge who lost control of the process. But we have this arrogance that ours is the best system in the world. And here was a chance for American justice to shine. The world was watching. Yet what we saw was a disgusting spectacle, an example of a system clearly on the verge of collapse.
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