2059) The laws of society are essentially a contract with the people that says, "You will not take the law into your own hands, we will appoint officers of the law to protect you." But what has happened is that the contract is being broken every day. And when citizens see obviously guilty and perhaps dangerous criminals being allowed to go free, there is a temptation to take the law into their own hands.

Harold J. Rothwax
Guilty: The Collapse of Criminal Justice (1996)

2060) The more I see of lawyers, the more I like my dog.

Judge Harold J. Rothwax's mother
quoted by Harold J. Rothwax in
Guilty: The Collapse of Criminal Justice (1996)

2061) Sadly, the culture that the defense lawyer inhabits today is one that says it's okay to push the envelope, to brush against the ethical barrier and occasionally slip over. Statistically, about 90 percent of the people who go to trial in this country are guilty. That puts defense lawyers in a situation where they're constantly representing guilty people. That's how the envelope gets pushed. That's where the line gets crossed between pure zeal and the excessive zeal that is designed to confuse, cloud or hide the truth.

Harold J. Rothwax
Guilty: The Collapse of Criminal Justice (1996)

2062) [O]ur adversary system rates truth too low among the values that institutions of justice are meant to serve.

Marvin Frankel
Partisan Justice (1980)
quoted by Harold J. Rothwax in
Guilty: The Collapse of Criminal Justice (1996)

2063) I suspect the real [problem with the criminal justice system] is not one of ethics but one of structure. The way our adversarial system presently works not only diminishes the possibility of truth, it encourages and fosters excess on the part of the lawyers vying for the upper hand. The goal has become victory, not truth. Our courtrooms have become casinos, with a professional culture of misconduct so pervasive and so profound that it is often unrecognizable as justice. Because we have ceased to see it clearly, we have also ceased to question it honestly and rigorously.

Harold J. Rothwax
Guilty: The Collapse of Criminal Justice (1996)

2064) Our entire system prior to a defendant going to trial is composed of a set of probability screens. Defendants don't just show up in court on a whim, railroaded by the system. By the time a person reaches trial, he has been deemed "probably guilty" several times - by the grand jury and by the court in preliminary hearings. It might shock your notion of justice to hear me say that the majority of defendants are "probably guilty." But if you think about it, you'll realize that that's preferable to saying that most of the people we arrest and bring to trial are "probably not guilty."

You might wonder, though, how we can presume a defendant is innocent when we say he is probably guilty. First of all, the presumption of innocence is a trial presumption - it does not relate to the earliest stages of the process. It is a way of stating that the burden of proof is on the People, not the accused; it is a way of telling the jury to keep an open mind, don't jump to conclusions prematurely and don't presume he's guilty because he's in the courtroom. It's a way of saying to the jury: "Be fair. The People have accused this man. Now, let's see if they can prove it." Note that no one pleads innocent, and no one is found innocent. Defense attorneys don't argue innocence, they argue reasonable doubt. (The average defense attorney might say that a trial is not a search for truth but a search for reasonable doubt.)

What the presumption of innocence does not mean is that the defendant is probably innocent. If that were the case, there would be no righteous grounds to make an arrest. It would be a police state where "probably innocent" citizens were arrested arbitrarily. Unless there existed some grounds for regarding a person legally guilty, it would be morally monstrous to bring a charge against him, indict and jail him, and compel him to undergo the ordeal and disgrace of a trial.

The best way to put it is this: The trial is the process by which we go from a reasonable probability or warranted suspicion of guilt supported by evidence to an assertion under law of legal innocence or guilt.

Harold J. Rothwax
Guilty: The Collapse of Criminal Justice (1996)

2066) Since most defendants are in fact guilty of some or all of the charges, the usual defendant on trial is yearning neither for an accurate reconstruction of the facts nor for an error-free trial.

Harold J. Rothwax
Guilty: The Collapse of Criminal Justice (1996)

2067) There are many places we can look for a cure to the out-of-control adversary system. But perhaps the best place to start is with a serious reevaluation of the role of the defense attorney.

The role of the defense attorney is to zealously represent his client within the bounds of the law, to defend his client whether he is guilty or not guilty, and so to attack the accusing witnesses whatever the truth of the accusations may be.

But can we conceive - and should we conceive - of a system in which defense attorneys would be more willing to view themselves as part of a system of law, and less willing to see themselves as the alter ego of their clients?

Harold J. Rothwax
Guilty: The Collapse of Criminal Justice (1996)

2068) In 1966, Professor Monroe Freedman, a leading ethics scholar, asked what he described as "The Three Hardest Questions" (of a criminal attorney):

1. Is it proper to cross-examine for the purpose of discrediting the reliability or credibility of an adverse witness whom you know to be telling the truth?



2. Is it proper to put a witness (including the defendant) on the stand when you know he will commit perjury?



3. Is it proper to give your client legal advice when you have reason to believe that the knowledge you give him will tempt him to commit perjury?

Professor Freedman answered all three questions in the affirmative - and thereby launched a storm of controversy that has yet to settle.

Harold J. Rothwax
Guilty: The Collapse of Criminal Justice (1996)

2069) No one really likes pleas bargaining. But until our legislatures choose to put more money into our courts, and until we find ways to operate them more efficiently, and until we agree that many of our laws are creating more problems than they solve, plea bargaining will remain a necessary fixture.

Harold J. Rothwax
Guilty: The Collapse of Criminal Justice (1996)

2070) Arguably, a system committed to truth would not permit one side to hide information that is relevant to the truth-seeking process. Truth may be the paramount goal but it conflicts with other values - here, the need for procedural fairness and a respect for human dignity and limitations on government power.

The hard question is: Does the concept of fairness in criminal procedures transcend the concern for truth?

As Professor Grano has pointed out, say a rule does not increase the risk of wrongful conviction, violate the defendant;s dignity, or permit aberrational government behavior. In this case, it's hard to know in what sense the rule can be considered to be unfair. Nevertheless, the claim is frequently made that certain rules are unfair simply because they make the conviction of a defendant more likely. Defense attorneys argue that discovery from the defense is unfair, even if constitutional, because it eases the DA's burden of proving guilt.

But such discover does not increase the risk of erroneous conviction, intrude upon human dignity, or permit government misconduct, so the assertion of unfairness in this context seems to mask an indefensible claim that facilitating the discovery of truth is unfair.

Harold J. Rothwax
Guilty: The Collapse of Criminal Justice (1996)

[Note: See #1667-1670 and #2071-2076 for additional quotes from Guilty: The Collapse of Criminal Justice]