(FORTUNE Magazine) – THE ROTHWAX SOLUTION

"It's a terrific book!" gushes crime writer Nicholas Pileggi on the dust jacket of Guilty: The Collapse of Criminal Justice, by Judge Harold J. Rothwax, and your servant is now poised to gush along. Rothwax, a State Supreme Court judge in New York, is the chap we have long been looking for: a judge who knows how to write (even if he does occasionally mix up "flaunting" and "flouting" the law), who is not excessively discreet, who used to be a defense lawyer and ACLU activist, who actually represented Abbie Hoffman at one point, who was appointed to the bench by liberal New York Mayor John V. Lindsay because of his presumed attachment to all the politically correct pieties, and who then (in Irving Kristol's immortal phrase) got "mugged by reality" while presiding over thousands of criminal cases. Hard-to-beat resume, eh?

The "collapse" in Rothwax's title is essentially coterminous with the explosion of defendants' rights during the Sixties and early Seventies--rights that systematically created obstacles to truth-seeking in the criminal-justice system. The new protections for defendants required, and got, a massive rewriting of the Constitution as understood during the prior 1w centuries. Looking back at it all, one has trouble explaining the mindset that had the Warren Court and other eminent jurists identifying their handiwork as wondrously high minded. Possibly they had all been overexposed to Blackstone's Commentaries ("It is better that ten guilty persons escape than one innocent suffer"), or maybe their problem was 12 Angry Men (the 1957 flick in which juror Henry Fonda turns around the bigots and dullards among his 11 colleagues and has the audience cheering when they all get to acquittal).

Anyhow, Rothwax will persuade you that the rewritten Bill of Rights, which got put in place just in time for America's huge crime explosion, looks increasingly bizarre. Among his examples:

--In a cluster of decisions built around the famous Miranda case, the Court went far beyond the Fifth Amendment rule that nobody can be compelled to incriminate himself--and ended up with a bag of rules that endlessly results in voluntary confessions getting thrown out on formalistic procedural grounds (e.g., in a dispute about the exact moment when the prisoner is deemed to be in custody and therefore needing to have his rights read to him).

--In other Fifth Amendment cases (unfondly recalled in this space after the O.J. Simpson verdict), the Warren Court discovered that juries must be warned against drawing inferences, however logical, from a defendant's unwillingness to testify on his own behalf.

--The Warrenites also went far beyond the Fourth Amendment ban on improper searches, ruling that procedural mistakes in the obtaining of evidence require state officials to exclude the evidence at trial--no matter how innocent the mistake or how depraved the crime, and despite the fact that the rules about searching remain mystifying. Rothwax explains why the country's most conscientious cops are chronically unsure whether they are allowed to search cars driven by obvious bad guys, and he adds that most of the time "a chief judge sitting in the back seat of a police car wouldn't know what the law is!"

--The law of "discovery," as redefined mainly by state judges, now requires the prosecution to turn over its evidence to the defense before trial begins--and requires nothing comparable from the defense. So the guilty defendant can build his story line around the prosecution's database. In the O.J. circus, Rothwax reminds us, Simpson originally told the police he was at home sleeping during the time of the murder. But when his defense team got hold of the prosecution's records, and noted evidence of his having made calls from the cellular phone in his car, the story changed. (His lawyers now had him out in the yard chipping golf balls near the parked car.)

One senses that virtually all readers of Guilty will come away raging along with the author over rules that continually allow the guilty--even the self-confessed guilty--to thumb their noses at the system and walk away laughing. Too bad Henry Fonda and his writers aren't around to read it.

ASK MR. STATISTICS

Dear Oddsperson: As a fellow connoisseur of dubious data, I assume you too have noticed the recent recurrent appearance in the media of a statistical incredibilism pertaining to legendary hoopster Magic Johnson, he who has been garnering headlines and accolades for his decision to resume playing for the Los Angeles Lakers of the National Basketball Association despite being HIV-positive. What I keep coming across is some variant of the statement made by Peter Jennings on the ABC news on January 31. Peter said that "the Centers for Disease Control has told [the NBA] that a player's risk of HIV transmission during a game is less than one in 85 million contacts." My questions are: (1) Where did that 85 million come from? and (2) What happened to Damon Runyon's rule against laying more than 3 to 1 in any event involving human beings? CAN'T BELIEVE IT Dear Fellowcon: Suspicion of media statistics is always doubly warranted when the story is characterized as "inspirational"--Jennings's term for the Magic story. The data he cited are ultimately traceable to a study, often cited by the CDC, from the February 15, 1995, Annals of Internal Medicine.

But the study did not involve basketball. It was performed by doctors investigating the risk of HIV transmission in National Football League games. They collected detailed data on bleeding incidents in 155 games and came away stating that their best estimate of an HIV transfer in a single touching of one player by another was one in 85 million. The CDC will be delighted to tell you that the Annals data are not transferrable to basketball (a game that is much less rough but on the other hand seems to involve more touching and certainly features more exposed skin).

But here is the main point. The Annals article was talking about the risk of HIV transmission in a game where the overwhelming majority of players are not HIV-positive. Nobody has any way of knowing what percentage of NFL participants would test positive, but the article guessed it might be 0.5%, i.e., one in 200 players. If we are talking about play against somebody known to be positive, the 85 million instantly becomes 425,000. If you guess that this somebody touches other players at the rate of maybe 100 per game, the figure becomes 4,250. Over the span of an NBA season, it becomes about one chance in 50. Which is, to be sure, a lot better than 3 to 1.

TRIVIA QUESTIONS

Warning: This item deals with an issue rated extremely low on the consequential plane, and those who skip it altogether are guaranteed not to suffer resultant declines in net worth. To be sure, they will miss out on a neat Winston Churchill story.

One was reminded of Winnie the other day whilst perusing an article in the British press about Martin Scorsese, stated by the reporter to have been identified as the Greatest Living Master of Cinema. Martin was depicted introducing his movie Casino to a Scottish group in a tuxedo--it was his tuxedo, not the group's--and prefacing his remarks by stating, "I hope everyone has done their homework."

Okay, nobody said he was the Greatest Living Grammarian.

It was in a debate on the civil war in Greece 50 years ago that Churchill was upbraided in Commons for a sentence we cannot otherwise recall except that he had employed some masculine pronoun like "his" in referring back to some antecedent like "someone." When a Labourite caviled that the someone in question might be a "her," Winston gravely observed that in everyday English usage, as in everyday English life, it was well established that the masculine embraces the feminine. At which point pandemonium did not break loose and the solons got back to consequential Hellenic matters.

Rhetorical question: Could a political person on either side of the Atlantic give an answer like Churchill's today? Could, say, Newt Gingrich? Evidently not, as mournfully judged by his recent remarks critiquing proposals to eliminate taxes on investment income: "The idea that you get your...savings and investment income and pay no taxes on it, while the person next to you is paying taxes on their income, that's nonsense."

How about conservative firebrand George Allen, governor of Virginia, son of a real tough Washington Redskins coach? Surely he could handle "his" as Winston did. Alas, no way. George did not have it in him even when one might think the point he was making--about English as a source of social cohesion--would call for a grammatical hard line. What actually came out of the governor's larynx while he was defending legislation to make English the official language of the Old Dominion was: "There should be no discrimination, but I think it is just a statement of fact that if someone is not able to read, write, or speak the English language, their options are limited."

In other words, the best job they can hope for is governor.

Next trivial question: What should society do about these pronoun problems? Some folks but not others favor the binary approach in which we all go around saying "him or her" or in the slash version "him/her." Brandeis sociologist Amy Agigian denies that this is cumbersome and resoundingly avers: "The charges of awkwardness are usually a thinly veiled cover for hostility toward treating women as equals. This is a pseudo-issue where those who are benefiting from male privilege and from an androcentric world try to accuse those who want change of frivolity, nitpicking, and/or grammatical looseness."

Possibly you are wondering what former Vice President Spiro T. Agnew thinks about this whole issuette. Scaling new heights of inanity, Spiro has suggested that "the authorities of English" simply declare it okay to attach "their" to a singular antecedent. That is what he actually proposed to the New York Times's William Safire, who horrifiedly reported it in his column on language last fall. Safire's counterproposal: Recast the whole sentence so that both pronoun and antecedent are plural. If Agnew's shadowy authorities sprang for this one, Scorsese would presumably end up hoping that "all parties present have done their homework."

Some of us are more stubborn than Safire. Inspired by the most eloquent statesman of the century, sensing it is plain crazy to say half of humanity is being demeaned and marginalized by a "his" attached to an "everyone," uncowed by the Brandeis sociology department, some doggedly decline to change their ways. Even when (or is it especially when?) the issue is so trivial.

REPORTER ASSOCIATE David C. Kaufman