The courts on trial — with Alan Dershowitz (1996) | THINK TANK

The courts on trial — with Alan Dershowitz (1996) | THINK TANK

Ben: Hello, I’m Ben Wattenberg. They say that crime does not pay but does
it? Are too many criminals going free or is the
criminal justice system just doing what it’s supposed to do? Punishing the guilty and protecting the innocent. For the next half hour, we will hear what
is likely to be a very vigorous discussion between two eminent legal scholars. The topic before this house, “The Courts on
Trial,” this week on “Think Tank.” Joining us on this special edition of “Think
Tank,” are Judge Harold Rothwax of the New York State Supreme Court and author of the
controversial new book, “Guilty: The Collapse of Criminal Justice,” and Alan Dershowitz,
a professor at the Harvard University School of Law and a defense attorney, whose clients
have included Claus von Bulow and O.J. Simpson. His latest book about the Simpson case is
“Reasonable Doubts.” Judge Rothwax, let’s begin with you. Your book is entitled “Guilty.” You have assumed the role of detective, lawyer,
judge, and jury. What is your case, judge? Harold: In the last 35 years, I think we have
developed a system in which we increasingly burden the search for truth by a large number
of motions that seek to suppress often relevant, highly probative, and dispositive evidence. Ben: What is probative and dispositive mean? We’re gonna have to set some ground
rules early about what… Harold: All right. It’s unquestionable evidence. It’s the gun, it’s the drugs, it’s hard evidence. So, we’ve done that. I think we’ve also prolonged the process unconscionably. And I think we’ve also allowed the adversary
system in many ways to get out of control in which lawyers have acted increasingly as
the central part of the system while judges become increasingly passive. So, we prolong the system, we’ve allowed for
adversarial excesses, and we’ve burdened the truth. We also have a number of procedures that are
formalistic and which often result in guilty people going free without any corresponding
service to the underlying core values that I think Alan and I share. Ben: Okay. Alan? Alan: Well, I think the judge is right about
much of what he said. We do have a system which is not an untrammeled
search for truth. If we just wanted to find the truth, we wouldn’t
have lots of the rules we now have. What we would do is calling the most obvious
suspect, torture him. If that didn’t work, maybe torture his children. We would get at the truth if the confession… Ben: You are foursquare against torture? Alan: At least three square against it, under most circumstances. Alan: And we could bug everybody’s homes and
do a great many things. What we do is we balance our search for truth
with a desire to maintain a tolerable level of civil liberties in our society. We also have a rule that says essentially
better 10 guilty go free than 1 innocent be wrongly confined, and that the burden of proof
is heavily on the state so that when we’re in doubt, we have a system which allows, which
prefers a possibly guilty person to go free than a possibly innocent person to be wrongly
confined. The real question is, is it worth it? And I think that’s where we disagree. I don’t think we disagree on the empirical
aspects although we have some disagreements about that. Ben: Let me just read something that you wrote
in your new book, “Reasonable Doubts” you state, “I can state with confidence that there
is no system in the world that strikes a more appropriate balance than ours does among the
rights and interests of the prosecution, the defendant, the victim, and the public.” Alan: Yes, that’s right. Ben: Now is because of the nature of the changes
in our criminal justice system in the last 35 years, has the crime rate gone up? Are Americans more worried and more likely
to be mugged, raped, robbed, murdered? Alan: The answer is clearly no. And that’s where I think Judge Rothwax and
I really do have a fundamental disagreement. Ben: That’s what I want to explore. Alan: The crime rate has gone up, by the way. It’s gone down in the past couple of months
or at least the rate it has quintupled. Alan: There’s no question. Ben: The violent crime rate in the last 30
years has gone up… Alan: There’s no question about that. Ben: …like five times, let’s stipulate, you’re saying… Alan: And it would have gone up… Ben: When you say the court, let’s stipulate, right. Alan: It would have gone up exactly the same
amount, if instead of the Warren court in 1960, we had the Scalia-Thomas court. And let me tell you, if today, somehow we
would get an appointment to the Supreme Court of nine board members of the American Civil
Liberties Union, the impact on the crime rate would be minuscule, there’d be some impact. But if you got criminologists from all over
the world and ask them the 10, the 20 most important contributions to crime in America,
none of them would list failures or alleged failures in the American criminal justice
system. Ben: I have talked to demographic technologists
who do not say that at all. Alan: I don’t disagree, that sentencing policy,
sentencing practices, decisions to incarcerate. We’re talking about the exclusionary rule,
the Fifth Amendment, the fact that zealous defense attorneys fight hard for their clients. That’s what we’re talking about, not whether
or not we want to quadruple the number of people in prison today. Ben: Well, You know, there is a relationship. Harold: I find questionable that the crime
rate has gone up extraordinarily. Alan: That’s right. Harold: It’s clear that more guilty people
are going free than should be going free because our system is, in many ways, irrational or
unnecessarily inefficient to prolong and because it tolerates excesses that it should not tolerate. Alan is right. You cannot blame the Warren Court for the
crime rate. If you had a more conservative court, you
could pretty much have the same crime rate. But I think what is essential to understand
is that our population is losing confidence in its system of justice, because it seems
increasingly irrational, erratic, unattached to what should be a sober and serious search
for the truth, and what we get is a sporting contest or theatrical performance. Ben: And that divorces crime from punishment
and allows people on the street to say instead of “Crime does not pay,” to say, “Crime may
pay.” And why do you resist some? I’m not talking about the Warrent Court, but
why do you resist the logical conclusion of what you’re saying? Which is to say, and therefore, it’s easier
for criminals to get off and there’s more crime. Harold: One of the reasons I do is because
we’ve got a conservative court now, but they are in many ways, because they’re conservative,
unwilling and reluctant to change some of the precedents in the Warren Court. I mean, Miranda was a Warren Court decision
but the Rehnquist and the Burger courts have not undone it because of their devotion to
precedent. In effect, what the Warren Court did was lock
us in place. We’ve created a cement system of constitutional
justice where we can’t change it. Ben: Which has increased the crime rate. Alan: See, you keep pushing that. Ben: Well, yeah, I mean, this is what the
public…this is what the public… Alan: I know the reason why Judge Rothwax
won’t say yes to you, and I won’t say yes to you, is because he’s honest, and he’s not
a politician, and he’s not running for office, and he refuses to pander to the same campaign
rhetoric that both President Clinton and Senator Dole and everybody else in public life is
pandering to, that is, trying to find a simple solution and one villain for what is a crime,
criminal justice system that’s broken down. But you can’t put the blame for that on civil
liberties, you can’t put the blame for that squarely on our Bill of Rights, and on some
of the other protections. There were inefficiencies in the system that
I think we could probably talk about and could improve dramatically the efficiency of criminal
justice. But by focusing on a few selected Bill of
Rights, what you do is you create a false target, and that’s what politicians have been
doing. And until we get off the politicization of
our criminal justice system and electorate politicization of our criminal justice system,
we’re not going to begin to address these serious problems. Harold: I think what we have to realize is
that as our system becomes increasingly irrational and increasingly paralyzed, that has an effect
on our ability to fairly and efficiently process criminal cases. And as the case… Ben: That’s the point I was trying to make. Harold: As the system becomes more and more
broken, the population at large loses more and more faith in the criminal justice system,
and the system itself has to rely much more heavily on plea bargaining rather than the
trial of cases. If the Simpson case can take nine months,
then we’re not going to be able to try too many cases. And we have to explore ways I think, to modernize
our system, not at the expense of the core values in the Bill of Rights, but to be a
rational and fair and efficient system at the same time, and we can do that if we will
begin the process. Alan: And I want to mention something about
the Simpson case. I agree with you. The Simpson case could have been tried in
two months, not nine months. But one of the reasons it could have been
tried in two months is because the exclusionary rule if it had operated properly, the judge
would have excluded all the evidence of the search when the police climbed over Simpson’s
wall and then lied and said they didn’t regard Simpson as a suspect any more than they did
Robert Shapiro. That would have been one way of cutting the
trial down. Another way would have been a judge simply
saying, “Look, what’s your best two months? What’s your best month, put it on.” Judges can take much more control over criminal
cases then they now do. Harold: One of the interesting things is,
of course, here in effect, Alan is saying that there should be some kind of an equivalence
between the fact that a person may have killed two people and the fact that some police officers
may have climbed the wall. Alan: No, I’m not saying that. Harold: And one of the criticism to the exclusionary
rule is that there is no proportionality. However serious the crime however minor or
minimal the police infraction, the murderer may go free as a result of that. And that would have reduced… Ben: Give us some examples of that. Harold: Well, the Houston case itself or the Harold Bair case. Alan: The Simpson case, neither of those…both
of those resulted in no exclusion. Harold: The fact is that they take four or
five months to litigate. And in my experience as a trial judge, I find
that most of my time is taken up with exclusionary. I’m spending much more time on exclusionary
hearings. We now have between 20 and 30 motions… Alan: Look at the comparisons he makes. One between Simpson, where there was a case
of two people being murdered, and the other Harold Barris case, where we have drugs. Even though there it 80 pounds… Ben: Eighty pounds. Alan: …of drugs, I can’t compare those two
cases at all. Harold: No, no, but that is — I’m not
comparing that. What I’m saying in both of those cases is
that in one case, you have 80 pounds of heroin dealing with a major drug distributor and
a relatively minor police intrusion. In the other case, you have a murder of two
people, and again, a relatively minor police intrusion. And in these cases, if you follow the exclusionary
rule to its logical conclusion, you will let a murderer go free and a major drug distributor
go free. There is no relationship between the seriousness
of the crime and the police infractions. Alan: Let me understand your position. You would say that the police should have
more right to violate constitutional rights in murder cases than they should in less serious
cases. And to the contrary, they’d have to be more
scrupulous in investigating less serious cases than more serious cases. In fact, the exclusionary rule works best
in cases like murder for this reason. In other cases, you might get a lawsuit against
the police. They might be punished because they overstepped
their bounds to arrest some second-rate burglar. But when the police are told, in effect, and
this is what Judge Rothwax is saying, if it’s a murder, don’t worry, climb fences, because
murders are so important that you can violate civil liberties of individuals to solve murders. Harold: That’s not what I’ve said at all. I’ve said that this… Alan: Isn’t that the implication. Harold: No, it isn’t. What I’ve said is that the serious nature
of the crime should be a significant factor in determining whether or not the evidence
should be suppressed. One of the things I think you have to realize
in this area, is that the law regarding search and seizure, the law in many of these areas,
is largely irrational and unknowable. The law of search and seizure has been described
by the U.S Supreme Court itself as intolerably confusing. So, what we do is we put police officers at
risk in enforcing what is largely an unknowable law, and they have to take on without much
thought under acting under exigent circumstances. They have to take immediate action, and if
they make a mistake in what is an unknowable law, then all of the evidence is suppressed. Alan: I agree with that. I agree with that. I think we can change the law and make it
clearer. Harold: Well, there’s an area of agreement,
Alan. The area of agreement is that, in the area
of search and seizure, there are certain parts of the law that are clearly knowable by police
officers. And where they violate a law that is clearly
knowable by them, then it may well be there’s an argument for suppression. But the great majority of the areas in which
they operate are very irrational and very unknowable. And it’s foolish to suppress evidence where
a police officer acts with subjective good faith and with objective reasonableness. Alan: I agree with that if we could tell which
police officers are telling the truth and which officers are not. Ben: But you say the system is exquisitely
balanced. Alan: It is. Ben: And now you’re saying you agree with
him when he says it’s inexquisitely balanced? Alan: No, no. What I’m saying is that the system is balanced,
but part of the balance can be tremendously improved by clarifying the law of search and
seizure. I don’t disagree with that. Ben: The Fifth Amendment, is that abused and
overused? Harold: Well, I’ve been very critical of the
Miranda ruling. My feeling is that… Ben: What is the Miranda ruling? Harold: Miranda ruling says that anytime a
person is taken into custody and you wish to interrogate him, that you must give him
a series of warnings. He has a right to remain silent, anything
he says may be used against him. He has a right to counsel. If he can’t afford counsel, one may be provided
to him and if… Those rulings are not given or they’re not
given in exactly the way they ought to be given, where if they are given and the person
says, “I want to remain silent, or I want to have my counsel,” then questioning must
stop. And it seems to me that that goes beyond what
the Constitution itself requires, and it leads us into formalism in terms of the jurisprudence
that follows from it. Alan: I disagree fundamentally. Miranda is very important. What Miranda does, is it says that the rights
that Judge Rothwax and I and you have because we’re educated and informed and we know about
the privilege against self-incrimination… Ben: So you speak for yourself. Alan: …must invoke…You know that you don’t
have to answer a question if you’re caught by the police. But the average person on the street prior
to Miranda didn’t know that. And what happened is police came to rely on
the ignorance and the poverty of the least well-educated people in our society. And that just wasn’t fair. And as the result of Miranda, we have educated
generations of Americans. The FBI now favors the Miranda rules, most
police chiefs favor the Miranda rules. Miranda has had a positive impact. Where we may agree is technical violations
where the words weren’t expressed properly or where it can be manipulated. But Miranda itself was a major step forward
in imposing equality on our criminal justice system and in getting the police not to rely
on deliberate ignorance of the population. Ben: My experience in talking to police chiefs
and policemen is that if you ask them in some sort of a public setting, or you have them
on camera, or if you have a pencil in your hand, they will say exactly what you said,
“Oh, those are really wonderful reforms.” And you talk to them off-camera, off-the-record,
and say, “This is ridiculous. It is so difficult to make an arrest now. It is so hard to see it through from apprehending
a criminal, from trying him from convicting him, and for actually getting it in the slammer
for a while,” it drives them crazy. And they know or they believe that because
of this morass we have set up, it is tougher to get the bad guys… Alan: Of course, it is. Of course, it is. And the constitution… Ben: But you started out saying… Alan: Of course it is. The constitution. Ben: Yeah, excuse me… Alan: Yeah. Ben: When I started this program, I said,
is it driving up the crime rate? Alan: It’s not. Ben: Well, you just said it is.. Alan: Nope. It’s harder today to convict some people because
of the Bill of Rights. The numbers… Ben: Well… Alan: Let me finish, please. Ben: Okay. Alan: The numbers of people, statistically,
are minuscule. We’re talking about one-half of 1%. There’s no free lunch. When the framers of our Bill of Rights set
out to establish a privilege against self-incrimination and a Fourth Amendment, they were not looking
to make it efficient for the police to bring people… Ben: But you don’t think… Alan: …to the slammer. And they’re not the criteria. The criteria is how we strike the balance. Harold: Yeah, but actually it’s Miranda that
focuses on the wrong issue. The Fifth Amendment just says you may not
compel a person to incriminate himself. Miranda says even if he hasn’t been compelled
to incriminate himself, his confession may still be suppressed, however voluntary it
may be, even if it’s indisputable. Of course, it’s true. Brennan and Marshall themselves said that
as a result of Miranda, many voluntary confessions will be suppressed. Alan: That’s a word game. It depends on what you mean by that. Harold: It’s not a word game at all. Alan: What I’m saying is that it’s not voluntary
when a poor person who’s uninformed thinks he has no right and gives it up.
Harold: Please, all that does… Alan: He would not have said it if he had
a lawyer. Harold: That reflects… Harold: That reflects…you know, there are
poor people and foolish people who commit crimes, and there are sophisticated people
who commit crimes. In order to have equality, maybe we ought
to have a school for scoundrels so those who are poor and illiterate can become better
criminals. That would bring greater equality to the criminal
population. Alan: The Constitution doesn’t require that
but it does require that we not take advantage… Harold: It never required it until the Miranda
court said so. Alan: …of people for lack of knowledge of
a specific right. Ben: Hang on, hang on. Alan: Right. Ben: There is something that I really don’t
get about your argument, Alan. You go back to Marbury vs. Madison, and you
go back to the Bill of Rights. And what I’m talking about, and I know I believe
what Judge Rothwax is talking about, is how the interpretation of that, of the Bill of
Rights of the U.S Constitution dramatically changed in the 1960s and thereafter for a
period of about 15 years. Alan: No, that’s not accurate. What happened during the Warren Court was
there was a revolution, not in rights but in remedies. For the first time, the court said, “Look,
there are rights in the Constitution, but we don’t have sufficient remedies.” So they constructed an exclusionary rule. They created the Miranda case. They talked about what to do in terms of lineups. This had an impact in educating generations
of Americans that rights without remedies are relatively hollow. This has been a very, very positive development
in criminal law. We will continue to debate the details of
how we have remedies for our Constitution but let’s not fool ourselves into thinking
that suddenly, if we would have a complete Supreme Court consisting of Scalias, that
we could keep our doors locked at night, or if we had a Supreme Court consisting of ACLU
board directors, somehow the crime rates would dramatically go up. That’s not the way the debate should be framed. Ben: What about the idea of a unanimous verdict
for juries? Is that a good thing? Harold: Well, I don’t think it’s a good thing. The U.S Constitution does not require unanimity. England has now done away with unanimity. They’ve now committed 10 to 2 verdict after
two hours of deliberation. A very well-known professor, Professor Emir
from Yale Law School, has recommended that we have a requirement of unanimous verdict
the first day, 11 to 1 the second day, and 10 t0 2 thereafter. Alan: Do you tell the jury about it? In England, they don’t tell the jury. Harold: Well… Ben: Do you tell the jury that after one day
it becomes 11 to 1? Then it becomes a tactic for the negotiation. Harold: That’s the detail. It seems to me you can let them deliberate
for two hours and then tell them if you want to. You can let them deliberate for one day and
then tell them, so…But that’s a detail. It doesn’t go to the issue of unanimity itself. Alan: Well, it’s not working in England. Let me tell you what’s going on in England. My friends, the baristas tell me that the
smart jurors understand if they hold out a little bit more, then they get a new rule
coming into place. Harold: And right now under unanimity, the
smart jurors know if they hold out, they can frustrate a jury and require a compromise
verdict taken. Alan: Judge, what percentage… Ben: Let me ask… Alan: What percentage do jury trials result
in guilty? Percentage of verdicts. Harold: I’ve had 10 jury trials thus far this
year. I’ve had three hung verdicts. That’s a 30% verdict with one holdout. And what we have is juror nullification. Often the most stubborn, the most irrational,
the most prejudiced, the most emotional juror is the one who is the one who’s holding out
and frustrating that search for truth. And Justice Powell himself has said, the unanimity, instead of resulting in a search for truth results a search for
compromise. Alan: Let me give you a counterexample. We had a woman on the Simpson jury named,
Anise Aschenbach, who previously had been on a jury that was 11 to 1 for acquittal,
and she turned it around and made it go 12 to nothing for a conviction. In the Simpson case, the first vote was 10
to 2. The verdict would have taken two hours instead
of four hours. Again, maybe I don’t even want to bother to
argue about this. You know what impact this would have on the
crime rates in America? Zero? Ben: I don’t believe that for a moment. I mean, I think the idea that it is easier
to get away with a crime, as that does not have an impact on criminality strikes me as
preposterous. Alan: We’re talking about unanimous versus
nonunanimous. Ben: No, no, but I’m talking about the whole
argument. I want to ask you a question. Alan mentioned earlier, an old axiom of our
judicial system, which it’s better than 10 guilty people go free than one innocent man
goes to jail. Let’s just discuss that idea. I mean, if those 10 guilty men go free, and
according to the criminal logical data I have seen, for every violent criminal out on the
street is committing an average of 14 violent acts per year, you are talking about 140 violent
crimes per year for just those 10 people, and then 280 the next year, and 420 the next
year, if you add them all up. Alan: If you take that to its logical conclusion,
you should say it’s better that 10 innocent people go to jail than 1 guilty person go
free, because it’s 14 to 1. Is that your object? Ben: No. Alan: You would be defrauding the public if you told me that. Ben: Judge Rothwax, for the record a moment
ago, just so we establish this, did say that this criminal justice system we now have does
affect the crime rate. That’s what you said. Harold: It does affect the crime rate, without
question. Ben: Negatively. Harold: Negatively, and I think that when
you have… Alan: In a significant way? Harold: Well, you know, the argument that’s
often offered to me, if only 3% of motions to suppress or 5% of motions to suppress are
granted, if you have 3 million crimes a year, 5% is 150,000 crimes. Alan: But they don’t all go free. Most of those are plea bargaining. Ben: Times 14 crimes per year. Harold: Well, that’s 300,000. And when you grant a motion to suppress, generally,
they go free, because they’re generally possessory crime. So yes, it does affect the crime rate. Alan: When we can talk about reducing the
crime rate by 50%, when we can talk about what Commissioner Bratton did in New York
without any mention of the exclusionary rules, why are we having this debate and not any
other debate? Harold: Because one doesn’t exclude the other. Alan: But it does. Harold: One can have a rational criminal justice
system even though you can increase and improve upon police methods. Alan: You and I know that but the politicians
don’t. And the politicians by focusing so much… Harold: Well, if you dand I can agree on
that, maybe the politicians will listen. Alan: …of the attention on the exclusionary
rules and on these other pimples on the rear ends… Harold: This is more than a pimple. No. Alan: …of the justice. What we are not focusing on are the real issues. Harold: It is a disservice to our system of
justice for you to call these kinds of legitimate complaints pimples. It’s a way of expressing your unwillingness
to review and revisit the irrationalities of our system at this time. Alan: I’m not calling them pimples. I’m saying what is a pimple is the issue of
whether or not these changes would have significant impacts on the primary, and they won’t. Ben: All right. On this note of dermatology, let me thank
you both for joining us. Thank you Judge Harold Rothwax and Professor
Alan Dershowitz, and thank you. And now, part two of our bumper sticker contest. This time we are looking for bumper stickers
for or against the Republican nominee Bob Dole. So, please send your entries plus any other
comments or questions to New River Media, 1150, 17 Street, Northwest Washington, DC
20036. We can also be reached by email at [email protected]
or on the worldwide web at For Think Tank, I’m Ben Wattenberg. Announcer: This has been a production of BJW
Incorporated in association with New River Media, which are solely responsible for its

5 thoughts on “The courts on trial — with Alan Dershowitz (1996) | THINK TANK

    Dershowitz says he liked to keep his underwear on when
    he was getting massaged at Epsteins' place
    No word if he liked coming in his underwear afterwards too.

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