Guilty: The Collapse of Criminal Justice.

Harold J. Rothwax Random House, Inc., 201 East 50th St., New York, NY 10022. 238 pp., $23.

Reviewed by Jerry H. Summers

Adding to the never-ending commentary on the O.J. Simpson trial, Judge Harold Rothwax discusses that case and what he considers major flaws in our criminal justice system. He says the system encourages "the idea that justice is a lottery, a game of chance and wit, not a search for the truth."

The author has been a trial judge in the New York State Supreme Court for over 25 years. Before that, he was a defense attorney and member of the American Civil Liberties Union. His ideas must have changed many years ago, for he advocates eliminating many of the constitutional guarantees of the Fourth, Fifth, Sixth, and Fourteenth Amendments of the U. S. Constitution.

Rothwax's obvious frustration with the legal system reached a saturation point with the O.J. Simpson trial. He contends the trial illustrates all that is bad about the U.S. justice system. Actually, the case shows what happens with the unlikely combination of a wealthy and well-known defendant; a weak judge; cameras in the courtroom; a salivating news media; a racist police officer; and grandstanding attorneys, police officers, and relatives of victims.

By selectively choosing sensational and controversial cases in which defendants go tree because of "technicalities," Rothwax creates a compelling argument for those in our society who want to reduce our search for the truth to the simple issue of "Did the defendant do it?" This theme is repeated throughout the book as the judge attacks many of the decisions that have liberalized the rights of defendants under the amendments mentioned above.

One of Rothwax's most shocking references to other judicial systems is the suggestion that the German system in which judges take a more active part in questioning witnesses is superior to how witnesses are questioned in the U.S. system. One of the great strengths of our system is that judges are supposed to be neutral--not advocates for either side. Although this is not always the case, I believe that most judges still strive for that neutrality.

I respectfully urge the judge to read Ingo Muller's book, Hitler's Justice: The Courts of the Third Reich (Harvard University Press 1991), which points out that many procedures of the German criminal justice system that are still in effect were first introduced in the 1930s.

In analytical chapters, Rothwax does an excellent job of presenting cases where he believes the system has gone awry. He has, however, selected extreme examples of how justice has been denied because of the exclusionary rule, the Miranda ruling, the insanity defense, the right against self-incrimination, the unanimous jury verdict, and other significant constitutional protections.

Rothwax has joined the list of authorities who want to do away with unanimous jury verdicts in criminal cases. Most state and all federal courts in the United States require unanimous verdicts, and he advocates that these systems be changed. He points positively to France, Germany, and Japan as examples of where small panels of professional and lay judges decide verdicts--not juries. But he also ignores their restrictions on individual liberties. He does recognize the strength of our judicial system as a protector of individual liberty. "Ours is the only system in the world that gives absolute priority to a jury of ordinary citizens," he says.

Rothwax advocates 10 basic changes, including reappraisal of the Miranda ruling and a new interpretation of the Fourth and Fifth Amendments. He asserts that changes such as these would help our courts be more efficient. Unfortunately, a great part of the Bill of Rights would be decimated if they were implemented.

The book is concise, well written, and provocative. It provides ample material to election-year politicians running on "law and order" platforms.

Rothwax exaggerates the woes of the legal system, and some of his solutions seem simplistic. But his book is a good source of material for those who strive to refine, if not reform, the criminal justice system in the direction of a less