Are too many guilty defendants going free?

• Author: Cossack, Roger
• Position: Panel Discussion

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...