Book Review - Truth or Justice

AuthorMajor Edward J. Martin
Pages09

278 MILITARY LAW REVIEW [Vol. 156

TRUTH OR JUSTICE1

REVIEWED BY MAJOR EDWARD J. MARTIN2

A recent trial in the New York State Supreme Court involved a defendant charged with robbing a Belgian tourist in midtown Manhattan. Plain-clothes police observed the entire incident. After being interviewed and providing personal information, the victim returned to Belgium and refused to come back for the trial. The defense counsel requested a jury instruction that the government's failure to produce the witness should permit the inference that, if called, the witness would not support the prosecution's case. During argument, the defense counsel admitted telephonically speaking with the witness and that the victim stated the defendant robbed him. Judge Harold J. Rothwax asked, "Doesn't your own statement belie the information you're seeking?" The defense counsel replied, "It does, but my client is entitled to it."

It is this type of conflict between the truth and rights granted to defendants in our criminal justice system that troubles Judge Rothwax. Judge Rothwax has been a member of the New York State Supreme Court for twenty-five years. He has thirty-seven years of experience in criminal law, including twelve years as a defense counsel. In his book Guilty: The Collapse of Criminal Justice, the judge uses compelling anecdotes to provide examples of problems with the American justice system. In layperson terms, Judge Rothwax uses cases he presided over, United States Supreme Court cases, the O.J. Simpson trial, and the discussions of legal commentators to conclude that the concept of fairness in criminal procedure has transcended the concern for truth.

To Judge Rothwax's credit, not only does he point out problems with the criminal justice system, but he attempts to provide commonsense answers to these issues. Judge Rothwax finds problems throughout the system; from the police investigation stage to jury verdicts. Many of the suggested solutions involve increased deference to the judiciary. Legal

commentators have criticized the more controversial proposals. However, Judge Rothwax sees his role as standing at the center of the adversarial system and keeping the scales in balance. While he often seems partial toward the prosecution, the truth is his objective. Judge Rothwax's most controversial suggestions surround the Warren Court's interpretations of the Fourth, Fifth, and Sixth Amendments to the United States Constitution.

The Court's interpretation of the Fourth Amendment is what guarantees that justice will not be done. The judge illustrates a number of cases in which people who are "clearly guilty" have evidence suppressed due to technical errors. One case involves a kidnapped child who, upon being freed from captivity in the defendant's...

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