Wednesday, August 7, 2013

You Win Some. You Lose Some. You Save Lives. People Die.

Now I know what it's like to hear Jesus Christ.
William J. Brennan, derisively,  to his law clerks on Anthony Amsterdam's oral argument in Gregg and Jurek and Woodson - three of the five cases that the Court decided in 1976 and that led to reinstatement of the death penalty and, since then to 1343 executions.  Quoted in A Wild Justice: The Death and Resurrection of Capital Punishment in America, by Evan J. Mandery.

Uncharacteristically, I'm going to cut to the chase here.  Mandery's book is a terrific piece of history.  He's done a wonderful, easy-for-the-layman-to-understand job of reporting how the various justices of the Supreme Court came to the decisions they did and wrote the opinions they did when they emptied death row in 1972 and when they permitted executions to resume in 1976.  Much (most? nearly all?) of what he reports isn't new.  But it's gathered and accessible.  And he tells a good story.

He also does a remarkably good job of actually parsing the various opinions and explaining where the opinion were and weren't consistent and just what they did and didn't decide.  To capital defense lawyers, this is bread and butter stuff.  But the details matter, and the broad-brush summaries that work their way into general public discourse miss them.  Mandery gets the nuance and sets it out in, mostly, English rather than legal.

A Wild Justice is also, as the quote from Brennan at the top of the page suggests, wonderfully gossipy.  Who are these guys?  Who got along with whom?  Did Whizzer White (who hated being called "Whizzer") really snap a pencil in Lewis Powell's face and tell hiim "to make up his damned mind"? How is it that Potter Stewart changed his position (but not his vote) in Furman because if he wrote what he believed and intended to write in a concurring opinion White would have voted the other way and the outcome would have been different?* 

Mandery is, in the words of the blurb on the book's back flap, a "former capital defense attorney."  He is currently a professor at John Jay College of Criminal Justice.  Those two careers point to the book's strength and its weakness. 

The strength, as I've said, is that he knows his law, can boil it down so a jury can understand it.  And he tells a good story.  Good lawyers do that. 

The weakness is that he's tedious and not particularly convincing when he becomes a social scientist/criminal justice professor and tries to explain why Furman was met with such disdain and especially, why the state's responded by enacting new capital punishment laws.  It's clear that they did, of course.  Just as it's clear that polling data showed that from the moment Furman was decided and capital punishment (temporarily) abolished, popular support for capital punishment increased dramatically.  

The other weakness is more subtle - and maybe more serious.   A Wild Justice is really Anthony
Anthony Amsterdam
Amsterdam's story.  Now, there's no question that Tony Amsterdam is a lion of the capital defense community. Furman and it's temporary emptying of death row pretty clearly wouldn't have happened without him. A brilliant lawyer, he worked the strategy wrote the briefs, argued the cases.  (Some said that his argument before the Supreme Court in Furman was the finest oral argument ever.)  You can make a credible argument that he personally deserves most of the credit for saving close to 700 lives in that case.

He was also, Mandery suggests without ever quite saying it, an intellectual egoist, unwilling or perhaps unable to listen to voices that didn't simply echo his own.  Mandery comes within a hair's breadth of saying that the Supreme Court ended up affirming death penalty laws in Georgia, Florida, and especially Texas because of his bullheaded intransigence.

There's some truth to those arguments.  (I'm speaking here analytically.  I've heard Amsterdam speak, read one of his books and a few of his articles, marveled at his mustache, but I've never met the guy or spoken with him myself and have no independent way to judge the accuracy of Mandery's picture of hia personality or style or ego.)  But those arguments leave out much.

There were other lawyers who worked on capital cases.  There were other lawyers who argued the cases in Mandery focuses on.  His snippets on the stat attorneys general in Gregg and the other 1976 cases are both mean spirited and, well, snippets.  They were in fact major players.  And his descriptions of Robert Bork landing metaphorical punches on Amsterdam - well, I won't dignify that with commentary.

But A Wild Justice is about abolition gained and abolition lost.  And for all its discussion of the Court and how and what its justices and law clerks did and said and thought, Mandery's book is told from the point of view of the abolitionists.  They're who he spoke with.  They're where he focuses his attention when it's not on the court.  

I'm an abolitionist, too, of course.  That's obvious, I expect, to anyone who's read much of this blog.  But Mandery's book suffers some from that lack of evenhandedness.

Suffers some.  But the thing is, it's really good.  The carping is really quibbles.  Furman and Gregg as we refer to the collections of cases that emptied the row (Furman) and allowed for executions to resume (Gregg) are the foundation - shaky though it is - on which all modern death statutes and most capital litigation wobble.  For exploring them, Mandery's book gets top marks.

NB: My thanks to W.W. Norton for providing me with a review copy.

*I should add that this makes no sense.  White could have voted against existing death penalty laws regardless of how Stewart voted without there being a majority opinion he detested.  But history often makes no sense.

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