BOOK REVIEW / NONFICTION : The Bill of Rights Vs. Wrongs in the System : GUILTY: The Collapse of Criminal Justice by Judge Harold J. Rothwax; Random House : $23, 238 pages

“I never dared be radical when young / For fear it would make me conservative when old. / . . . The old dog barks backward without getting up. / I can remember when he was a pup,” wrote Robert Frost.

In this book, Harold Rothwax, who when young was a defense lawyer and a director of the New York Civil Liberties Union, does a lot of backward barking. He has been a criminal trial judge in New York for 25 years. The objects of his barks are the Bill of Rights protections for defendants as interpreted by the Supreme Court in the last 35 years.

Like a number of contemporary intellectuals who began life on the left and moved to the right, Rothwax is grumpy. He sounds as if he is lecturing the young idealist he once was about the ideals he once had.

In righteous tones he describes how he would change the law:

* Stop excluding evidence gathered by methods of search and seizure that violate the Fourth Amendment.

* Abandon the requirement that a defendant must be told of his right to remain silent and to have a lawyer, provided by the court if he can’t afford one.

* Remove a defendant’s right to a lawyer in the investigative stages of a case; keep the right only for the courtroom stages.

* “Modify” [eviscerate!] the Fifth Amendment right to remain silent by permitting a jury to infer that the charges against the defendant are true if he refuses to testify about them.

Rothwax backs up his opinions by reciting a long list of what he considers judicial horror stories, including the O.J. Simpson trial, where “justice was not done.”

He has come to his beliefs, he writes, because, “since the advent of the Warren Court (which reacted to abuses that existed at that time), we have witnessed changes in constitutional interpretation and procedural statutes that have substantially altered the balance of advantage in criminal cases to favor the accused.”

“This book,” he adds, “has been replete with cases where an obviously guilty, and often violent, criminal goes free.” These results, he writes, should be “intolerable.” A lot of people will sympathize with Rothwax’s outrage, and a good many will, at first glance, nod in agreement with his prescriptions. But it is too easy to forget that our current reading of the Bill of Rights came about because of the all-too-invasive power of the government.

*

I was on a jury last summer in Hollywood Municipal Court. A young Latino mechanic was accused of stripping a stolen red Honda. The only evidence against him was a written confession obtained by an LAPD detective.

The accused neither spoke nor read English. The confession, which he signed in awkward block letters, was written in English, translated, the bilingual detective said, from the defendant’s Spanish, then read back to him in Spanish. But in court the defendant said he had not confessed to one important fact that appeared in the confession as written.

“How would I feel,” one Anglo juror said, “if I were arrested in Mexico and told to sign a confession written in Spanish?” So we jurors threw the confession out, and with it the case.

I suspect Rothwax would argue justice was not done in our case, that we allowed a “technicality” to set a guilty man free. We firmly believed that the government had overreached and that what we did was just and fair.

To say that the criminal justice system is overburdened and cumbersome and sometimes unsatisfactory, as Rothwax amply demonstrates, is one thing. To propose that you fix it simply by sharply increasing the power of the government against the individual is an argument that, I hope, will not carry the day.