- The Washington Times - Thursday, December 6, 2001

Macklin Fleming has been a defense counsel, prosecutor, trial judge and appellate justice. In retirement with time to reflect and write, he has become a severe but scholarly critic of our criminal justice system.

In its preoccupation with "perfect procedure," the criminal justice system, he argues, has, thanks to judicial activism, forgotten its reason for existence to safeguard life, person and property. The system, he says in his fifth and latest book, "Perfect Justice," is paralyzed because of the judiciary's unceasing hunt for perfectibility in the judicial process. Here are some of his findings which are calamitous in their implications:

• Cases have been reviewed by up to 12 different courts, tried as many as five times and have dragged on, believe it or not, for 20 years.

• Criminal trials have been converted from adjudication of the defendant's guilt or innocence to issues of competency of judge, jury, prosecutor, defense counsel, news media, police.

• Criminal cases have taken up to seven years just to get to trial. The trials themselves can go on for a year or more.

• Jury selection can take up to five weeks.

The ideal of "perfect justice" came on the scene in the 1960s. Its supporters contended that effective enforcement of criminal law posed a threat to personal liberty and equality and could lead to government oppression.

That new ethos clearly resulted in an unbearable consequence during the following 20 years: the tripling of major crime rates per 100,000 inhabitants. Despite public outcry and the rise of self-help in the form of neighborhood watches, private patrols and passage of stricter laws against crime and increased appropriations for fighting crime, says Judge Fleming, "These changes had little perceptible impact on the volume of crime." How come? The answer:

"The criminal law is a three-legged stool whose legs are legislative, enforcive and adjudicative. In its adjudicative leg, i.e., the courts, little change has occurred during those years of ferment. As a result reinforcement of the other two legs of criminal law had little effect on the volume of crime or on major crime rates, which remained at high levels throughout the 1980s, and the instance of violent crime continued to rise."

By 1990, the United States Supreme Court in a series of decisions began "to recognize the impotence of theory at variance with fact and the dangers of excessive erosion of the effectiveness of criminal law." Despite this change of course some courts of lower jurisdiction presided over by radical egalitarians simply ignored the Supreme Court decisions and got away with it. Their judicial activism helped perpetuate the unpredictability of outcome, a dominant characteristic of American criminal law today. And even though during the 1990s rates for major crime and violent crime declined, the rates still remained more than 2 or 3 times higher than those of 1960.

What seemed like a judge's humane concern was the attempt to overcome "the disparities between rich man's justice and poor man's justice." But such concern led to a gross error in judgment. Instead of restricting the rich man's "procedural extravagances and claims of personal irresponsibility" whereby the rich defendant averts a guilty verdict, says Judge Fleming, many judges extended the rich man's "right" to such bizarre defense behavior to the indigent in the name of equality.

The book is replete with examples of what can truly be called miscarriages of justice. One such case involved a mass murderer, Charles Ng, accused of committing 12 murders during 1984 and 1985 in Calaveras County, Calif. He fled to Canada in 1985 where he fought extradition for five years before he was finally returned to California to stand trial. And then began an "Alice in Wonderland" scenario that encompassed seven more years during which Ng avoided trial. In multiple hearings he raised issues of counsel competency, counsel of choice, representation by the public defender, noncooperation with assigned counsel, self-representation and reassertion of rights to counsel. Ng also brought about the removal of four judges from his case, a change of venue of his trial from Calaveras County to Orange County, then seeking a change of venue to San Francisco. Ng's trial finally began in 1998, some 13 years after his indictment, and resulted in his conviction and death sentence in June 1999.

The book is full of such examples of what can be called miscarriages of justice in which judges play along with defendants in the name of equality. Without procedural court reforms, whatever legislatures and police do to fight crime will be thwarted by judges who regard process as more important than justice.

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