The same week that O.J. Simpson got off, the U.S. Supreme Court was considering Gore v. BMW, the case of an Alabama doctor who found that his car had been partially refinished after suffering slight damage on the boat trip from Germany. An Alabama jury awarded $ 4,000 in compensatory damages and $ 4 million in punitive damages.
The juxtaposition illustrates perfectly the yawning dichotomy that has developed between the two halves of the ustice system. On the criminal side, it seems kVtlliarn T*cleer is a free-lance writer [Mn* it* Brooklyn. He collaborated with Ntupt Gingrich on To Renew America. impossible to convict anybody of anything. Certainly, the jails are filled with offenders. But when really important cases arise and the criminal defense industry marshals its forces, it seems less and less likely that the prosecution will secure a conviction — or, equally important, make one stick in the appeals process. Next thing you know, it is being argued that the system is “unfair” because every criminal does not get the same kind of legal defense.
The degeneration of race relations in Los Angeles and across the country, for example, has been charted by a series of bizarre acquittals in what seemed to be transparent cases of guilt. First there was the acquittal of five Los Angeles police off*cers in the beating of Rodney King. (The subsequent conviction of two of them on federal charges, a blatant violation of double jeopardy, has done little to mend the damage.) Then there was the acquittal of two black rioters, on charges of attempted murder and felonious assault, for pulverizing a truck driver on national television. (One defendant is serving 10 years for felonious mayhem.) Finally there was O.J. Throughout, there has been the running sore of the inability to secure a conviction of the Menendez brothers, who have admitted to killing both their parents with repeated blasts from a shotgun.
On the civil side of the bench, on the other hand, everybody seems guilty of everything. McDonald’s must pay millions because somebody spilled a cup of their coffee. Parents pay damages because they took part in assembling a nursery-school jungle gym. Burglars win judgments against property owners for injuries incurred while breaking into the premises. “Punitive damages” in these suits are so bizarre that they would easily be recognized as “cruel and unusual punishment” were they being administered on the criminal side. As O.J. Simpson is about to find out, the civil courts — supposedly set up to resolve disputes — have in effect become more a forum for administering punishment than the criminal courts themselves.
How has this come about? Most significant is the huge gulf in procedural matt ers that has opened between the criminal and civil divisions since the era of t he New Deal. At one time, the criminal and civil systems were governed by recog nizably similar principles. The burden of proof has always been different. Civi l cases are decided by the “preponderance of evidence,” while criminal charges must be proved “beyond a reasonable doubt.” But the procedu res by which evidence was brought into the courtroom were at least somewhat the same.
Today, criminal and civil procedures might easily be mistaken for the justice systems in two different countries. On the criminal side, police and prosecutors are so hemmed in by procedural rules that “putting the prosecution on trial” is the standard method of criminal defense. Any peccadillo in evidence gathering immediately becomes the central issue of the trial. These ” violations of the defendant’s rights” are treated on a par with whatever murder or mayhem the defendant is accused of. As Justice Benjamin Cardozo put it, “The criminal goes free because the constable has blundered.”
On the civil side, there are no such restrictions. Plaintiff attorneys have been given such enormous powers of search and seizure that they regularly refer to themselves as “private attorneys general,” scouring the countryside, rooting through people’s private lives and personal papers in search of real or imagined wrongdoing. Far from filtering evidence, many states have adopted an attitude of “let it all in,” no matter how peculiar or irrelevant it may be. (The recent Dauberr decision in the U.S. Supreme Court has set a higher standard at the federal level, but this is not binding on states.)
The most obvious place where the two systems have diverged is in the area of personal interrogation. The 1966 Miranda decision has made it extremely difficult to obtain criminal confessions — or even to elicit denials and alibis that might otherwise be disproved. A suspect must be so persistently advised of his right to retain an attorney that if he does not take advantage, the warning itself may be judged insuff*cient. Once an attorney arrives, however, he will not allow the suspect to confess or even respond to police interrogation. If he does, he risks giving “incompetent counsel.” Criminals still confess, but these confessions are often suppressed on the grounds that they have been “coerced.” In fact, many civil liberties attorneys argue that there is no such thing as an uncoerced confession. Why would a suspect incriminate himself, except if he has been forced to or tricked by the police?
On the civil side, on the other hand, private attorneys have been given wide latitude to extract personal testimony from defendants without the supervision of the court. “Depositions” — once limited to deathbed testimony and other situations where a witness could not appear in court — have been expanded to give private attorneys the right to interrogate anybody, any time, on any matter remotely relating to a case. If your spouse sues for divorce, you can be interrogated by his or her attorney about your personal and sex life and subject to charges of perjury or contempt of court for your answers. There is no “right to remain silent.” Wal-Mart was once fined $ 11 million because its late founder, Sam Walton, failed to show up for a couple of depositions in a case where someone had slipped and fallen in one of the company’s stores.
The same divergence has occurred in the area of physical evidence. Since the 1961 Mapp case, criminal cases have been subject to the “exclusionary rule,” which says that evidence can be withheld from the jury if constitutional procedures are violated in gathering it. These procedures are subject to endless hair-splitting and will almost certainly never be resolved. The evidence gathered from O.J. Simpson’s mansion, for example, was supposedly ” tainted” because police entered without a warrant. But what if they had obtained a warrant? According to the Fourth Amendment, a warrant must describe “the place to be searched, and the persons or things to be seized.” The courts have often interpreted this to mean that if the warrant does not specifically say “socks” or “glove,” such discoveries are inadmissible. On the other hand, warrants have also been held unconstitutional because they were “overbroad” and described too many things. A few years ago, the Supreme Court decided the police had violated a burglar’s Fourth Amendment rights because, after legally entering his apartment in search of drugs, they turned a television set in order to read the serial number and determine if it is was stolen (it was). Turning the television set, the court said, exceeded the scope of the legal search.
On the civil side, once again, things have gone in the opposite direction. Fi fty years ago, in orde; to obtain evidence in a civil suit, plaintiffs had to b ring specific charges and list specific information that they sought, much as i s done in issuing criminal search warrants. Today, “discovery” proceedings have been so vastly expanded that plaintiff attorneys can claim access to virtually any corporate record or personal paper. Plaintiffs routinely write up scattergu n complaints and demand information by the truckload. Charges are then construc ted after the fact. Defendants can be punished for withholding information — a standard definitely n ot applied to criminal defendants, even though the penalties in civil cases are often much more severe.
In criminal cases, laws against hearsay evidence have been tightened. In civil proceedings, they have been loosened. In the criminal cases, forensic DNA identification is still excluded in several states. In the civil courts, DNA identification is standard procedure in paternity cases. While criminal courts have gagged on DNA evidence — now supported by the entire scientific community — the civil courts have swallowed every sort of “junk science,” from “loss of psychic powers” to the “trauma theory of cancer,” which says you can get cancer from being hit on the head with an orange-juice bottle.
How did the two systems come to divide so remarkably? It is almost impossible to look at the situation without confronting the personal and financial interests of the lawyers themselves. Quite simply, the defense of criminals has become very lucrative profession. There is a vast drug industry, as well as organized-crime and white-collar offenders, all ready and willing to shell out enormous amounts for legal representation. O.J. and Claus von Bulow are only the tip of the iceberg.
On the civil side, it is the plaintiff’s attorneys who are the high rollers, collecting between one-third and half of nearly every class-action award and punitive-damage fee. Coincidentally — suspiciously, even — the law on both sides of the courthouse has steadily evolved in favor of the big-money players of the legal profession.
Let’s start with criminal justice. The system is based on the underlying theory that the state itself — and not the victim of the crime — is the offended party. At one time, this was crucial in putting the “awesome powers of the state” on the side of innocent victims. In practice, however, it has come to mean that the prosecution of crime is a state monopoly, while defending criminals is a vigorously pursued private enterprise. It’s a bit like pitting the post office against the computer industry.
One unfortunate outcome is that prosecutors don’t make much money. A handful around the country may have an income in the low six figures, but most are distinctly modest. In the old days, a successful career prosecutor was rewarded by becoming a judge, but with the growth of the public-defender establishment, even this route of reward is subject to competition.
As a result, most young prosecutors — however unwittingly — are actually training to be criminal defense attorneys. The common career path is for law school graduates to sign on with the prosecutor’s office to get courtroom experience. Once they have learned the ropes — and are perhaps beginning to take on family responsibilities — they switch, however reluctantly, to the defense.
Make no mistake, this changeover is usually not done without grave misgivings. For many dedicated prosecutors, it is the most painful decision of their entire lives. Yet the economic incentives are overpowering. A friend in Brooklyn was a career prosecutor until he was dumped by a change in political administrations. Reluctantly, he started representing international drug dealers. A few months later, my wife met his wife on the street just as the latter was filing their income tax returns. “Our quarterly estimated payments are now more than our entire annual income used to be,” she confided.
All this has filtered back to the law schools, where criminal law is now taught from the “defense” perspective. Granted, there is a certain residue of 60s radicalism at work, but in economic terms, it just makes sense. Alan Dershowitz flies his own Lear jet, while Christopher Darden is hooted out of church. Thomas Puccio may have made his reputation as federal prosecutor in the Abscam cases, but he didn’t strike it rich until he met yon Billow.
The result is that, in nearly all high-profile cases, the prosecutors appear young and inept, while defense attorneys are seasoned and eloquent. None of the assistant district attorneys on the O.J. trial could have made the fourth string on the “Dream Team.” In von Bulow’s retrial, Puccio and Dershowitz faced off against a Rhode Island prosecutor who had been in law school while the first case was being tried. Dominick Dunne, covering the retrial, likened it to “a football game between the New York Jets and Providence High School.”
On the civil side, it is the plaintiff attorneys who are at the end of their career path, playing for sums large enough to start a foundation with. Defense attorneys are more likely to be corporate drones working on straight salary. Th ere are no multi-million-dollar contingency fees on the side of the defense. Th ere is no Association of the Trial Lawyers of America pushing the interests of civil defendants in Congress. Plaintiff work attracts all the professional exci tement, as attorneys constantly mine new ground for malpractice and class-actio n suits. As usual, the law schools and professional assoc iations follow suit.
How can some balance be restored to both these systems? Tort reform is wending its way through Congress, although whatever progress is made can be quickly undone by the judiciary and new theories emanating out of the law schools. In criminal matters, however, the solution could be to harness the greed and entrepreneurial instincts of the legal profession to the task of punishing people for criminal offenses. How might this be done?
Here’s one proposal. Let’s just say to hell with it and decriminalize crime. All muggings, rapes, robberies, and murders could then be treated as civil rather than criminal matters. That would cure all the handwringing about the ” awesome powers of the state” and put the alleged criminal and the victim back on equal footing. “Let it all in” would become the standard for admission of evidence. The jury would hear the whole story and the public would be assured of some reasonable facsimile of the truth.
What about punishment? That’s no problem, either. A finding of “fault” would require the defendant to pay the plaintiff the usual sky’s-the-limit award for punitive damages. Of course, a sober soul might object that while that would do for O.J. Simpson, an indigent defendant wouldn’t have a chance of compensating his victim. Simple solution: The state could make a “loan” to cover the damages. The guilty party would then repay this loan by working at the minimum wage at a state workhouse. In other words, a murderer might spend the rest of his life trying to compensate friends and relatives of the victim – – the kind of mixture of civil and criminal penalties that the Old Testament, for example, recommends.
Would the best criminal attorneys respond on behalf of crime victims? We already know. The largest civil award ever made in a prominent criminal matter was the $ 7.57 million judgment against Norman Mailer buddy Jack Abbott in favor of the family of Richard Ardan, the young waiter he murdered while on parole. The Ardan family’s attorney in this civil proceeding? F. Lee Bailey.
William Tucker is a free-lance writer living in Brooklyn. He collaborated with Newt Gingrech on To Renew America.
