Virtual Justice: The Flawed Prosecution of Crime in America.

• Author: Cavallaro, Rosanna

Virtual Justice: The Flawed Prosecution of Crime in America. By H. Richard Uviller. New Haven: Yale University Press. 1996. Pp. xvii, 312. $37.50.

"Whatever it is, you should clean up this city here because this city

here is like an open sewer, you know? It's full of filth and scum, and

sometimes I can hardly take it."(1)

What is it about New York City that has, in the last few years, spawned a series of books attacking the criminal justice system and describing a community in which victims' needs are compelling while the rights of the accused are an impediment to justice? Why does this apocalyptic vision of the system persist, despite statistics demonstrating the sharpest decline in the city's and the nation's crime rates in decades?(2) What explains the acute detachment from the accused that is at the core of this series of books?

In Virtual Justice: The Flawed Prosecution of Crime in America, Richard Uviller(3) adds his voice to those of his fellow New Yorkers, including Professor George Fletcher and Judge Harold Rothwax, who have recently advocated reforms of the criminal system.(4) Among the reforms they advocate are sharp constrictions of the exclusionary rule, the right to counsel, the privilege against self-incrimination, the peremptory challenge, and the admissibility of expert testimony.(5) Although ostensibly examining these same issues with the balance of a scholar rather than the voice of an advocate, Uviller's wish list is remarkably congruent with those of the more contentious Fletcher and Rothwax. And like the work of Fletcher and Rothwax, the premise of Uviller's analysis is flawed: the procedural protections he critiques simply have not effected dramatic changes in the investigation and prosecution of crime and the sentencing of defendants.

Criminal justice in New York City is, like the city itself, hardly a national prototype. In terms of volume alone, the system is peculiarly burdened.(6) In addition, New York presents combined demographics of race(7) and class,(8) of access to education,(9) housing,(10) employment,(11) and of the availability of weapons(12) and drugs, that appear nowhere else in the United States. This does not, however, prevent Uviller, and other observers, from extrapolating from New York's experience to conclusions about "Criminal Justice" and the "Prosecution of Crime in America." Reliance on so idiosyncratic a model cannot help but produce distortions, and this is one of the pitfalls of Uviller's book.

Those distortions can perhaps be explained and even corrected by examining them as products of a distinctly New York sensibility. Certain crimes have become as closely associated with New York City as Broadway and the Empire State Building. These crimes contribute to the sensibility I try to describe, in this review, and I believe that they might go some way toward explaining the subject, tone, and point of view of Uviller's book. The 1964 murder of Catherine "Kitty" Genovese is perhaps the oldest, in our contemporary consciousness, of a long series of episodes that have come to define the New York criminal paradigm: inexplicable brutality met by outrageous indifference. It is now a fixture of urban mythology that Kitty Genovese's assailant committed three separate and ultimately fatal assaults on her, leaving and returning repeatedly, while her neighbors listened to her screams for thirty-five minutes without calling the police.(13) More recent examples include attacks on young women in Central Park in 1989 and again last year,(14) the deaths of the young daughters of Joel Steinberg and Awilda Lopez,(15) and the controversial subway shootings by Bernhard Goetz.(16)

These cases have shaped the city's consciousness of itself. Many New Yorkers live with the impression that they are under siege and cannot walk the streets, ride the subway, or enter Central Park without falling prey to criminal offenders. There is a corresponding impression that all offenders in New York City are in human sociopaths, Zodiac killers, and Sons of Sam.(17) Media coverage in New York and nationally compounds the fear of crime,(18) not only by devoting disproportionate attention to the extremes,(19) but also by conveying the sense that few criminals are caught and fewer still are convicted or punished.(20) Of course, none of these impressions is accurate. The vast majority of crimes and offenders are ordinary, the same as one would find elsewhere in the country, although more numerous. Furthermore, New York City crime rates have dipped dramatically in recent years, demonstrating unambiguously that New York is a safer place now than it has been in a long time.(21) Yet the mythology of crime in New York seems to transcend the truth. Consequently, a bunker mentality persists among longtime denizens of the city, who cling to a grim image of their own community that they could, if they would, relinquish.

With fear of crime -- rather than facts about crime -- dominating the debate, the legislative landscape is littered with minimum mandatory sentencing provisions,(22) "three strikes" statutes,(23) modifications the juvenile justice system to allow youthful offenders to be tried as adults and sentenced to adult correctional facilities,(24) reintroduction of the death penalty or broadening of its reach,(25) and crusades to diminish the quality of inmate life.(26) Record breaking percentages of people -- particularly men of color -- are behind bars,(27) and prison construction projects have exploded.(28) The political rhetoric that propels these initiatives is bipartisan. In the judicial branch, these same forces produced New York Judge Harold Rothwax, who toured the radio call-in show circuit to promote Guilty: The Collapse of Criminal Justice, a book that boasts of his conversion from a civil libertarian and defense attorney to an angry conservative disgusted by both criminal defendants and the attorneys who represent them. The book brims with righteousness and fury, unabashedly condemning all defendants(29) as well as their counsel.(30) While it enjoyed a great deal of attention in the popular press,(31) it was dismissed by legal scholars and jurists as "lopsided,"(32) and a "jeremiad."(33)

With Virtual Justice, Uviller takes Judge Rothwax's populist theme into the academic setting, couching in disarmingly bland prose the same radical thesis: that many of the rules of criminal procedure that have evolved through the last thirty years of constitutional adjudication hamper law enforcement excessively and should be curtailed or repealed. Despite the fact that Uviller has buffed up Judge Rothwax's arguments with some sane discussion and occasional nods to the counterargument, he ends up right where Rothwax started. The Collapse of Criminal Justice and The Flawed Prosecution of Crime in America pander to the same fears and exploit the same distorted perceptions. The surprise is that Uviller's sugar coated version of Rothwax's tirade is much harder to swallow.

1. NYPD BLUES: A PLEA FOR MORE POLICE DISCRETION

   Uviller's major point is that the Supreme Court's readings of the Fourth, Fifth, and Sixth Amendments are not justified. According to Uviller, "the continuous struggle between effective illegality and the blunter but prouder tactics of lawful law enforcement" (p. 109) has been wrongly resolved:

   Though the Constitution was certainly drafted with the common-law

   model in mind, the fundamental catalogue of rights and obligations

   that found their way into the text do not require the full adversary

   mode that we have engrafted onto it. The citizen can be secure

   against unreasonable searches and seizures with far greater scope for

   court-sanctioned investigations. Our ingrained notions of the limits of

   interrogation and the consequences of silence are not dictated by the

   words of the Fifth Amendment that none shall be compelled to be a

   witness against himself. And certainly the right to the assistance of

   counsel in one's defense does not necessitate the adversary circus or

   the lawyerly shield against the fair acquisition of evidence against the

   accused defendant. [pp. 309-10]

   To prove his point, Uviller examines the criminal process in the conventional arrest-to-trial sequence, using a. "modest collection of tales" that are fictional but, he says, not "altogether fictitious" (p. xv) to depict "common and perplexing events in the collection of evidence and the trial of criminal cases" (p. xv). He then applies his long experience as a scholar and, more surreptitiously, as a prosecutor, to tease out of the narratives an assortment of problems that, he contends, produce a system of "virtual," rather than true, justice.(34)

   As a result of this choice of narrative structure, the book's tone shifts awkwardly from the Mickey Spillane diction of the "tales" to Uviller's own more ponderous analytic prose.(35) Many of the fictional passages suggest a fascination with the gadgets and jargon of police work -- such as crownlights (p. 29) and bullhorns (p. 243), "perps" (p. 58), "mopes," and "The Job"(36) -- that is especially discordant with the tone of mastery that dominates the remainder of the book. While Uviller plainly strives for diversity among his fictional characters, with male and female police officers, prosecutors, and judges, he often slips into hackneyed stereotypes of gender and ethnicity.(37) All of this makes it somewhat difficult to take the serious stuff seriously.

   Although it appears from the opening chapter, "Overview of the Criminal Justice System," that Virtual Justice is written for an audience of readers who have not received a legal education, much of the detail would seem to hold little interest for anyone but lawyers.(38) Conversely, however, the book is too simplistic for most lawyers.(39) Consequently, it occupies an intermediate zone in which it is both too sophisticated for some and too superficial for others.

   In addition, many of the problems to which Uviller applies his two...