White Collar Warrior: Silverglate and Three Felonies A Day

I have a confession to make: I've always been wary of the white collar criminal defense bar. Real criminal defense lawyers defend those accused of murder, rape and other crimes of violence, right? I mean, wassup with the pinstripe suits and the Grey Poupon sensibilities of those with money to burn? Isn't white collar work for momma's boys and wannabes?

Harvey Silverglate has slapped me silly and forced me to see just how wrong I am. His Three Felonies A Day: How The Feds Target the Innocent, is a tale told from the trenches by a white collar warrior worthy of any courtroom. It may well be that the threat to liberty is greatest in the world of white collar crime, where prosecutors armed with vague laws, investigative grand juries and infinite resources can crush virtually anyone, regardless of whether the person has committed a crime.

Silverglate practices in Boston and writes a column for The Boston Phoenix; he is a sixty-something lawyer and litigator who managed to survive Harvard Law School without losing a taste for street smarts. I've never met him, but his photograph on the dust jacket of the book bears an uncanny resemblance to Robert Fogelnest, former president of the National Association of Criminal Defense Lawyers, and now an expatriate living in Mexico. Fogelnest is a good friend, so I suppose there is a danger that I read too much into Silverglate's feisty prose, but I don't think so.

Economic hard times make populists of all who struggle, and yield the temptation to indulge in a sort of populist dualism, separating the world in good and evil. The current bad guys are Wall Street bankers, those smarmy folks who packaged derivatives, traded them like baseball cards among themselves, exploited the Barnum-like quality in each of us that wants something for nothing, and then crashed the economy. We're enraged, most of us, that these banking bandits pulled this off and still got a free ride from the government. What a country: The rich get bailed out by Government and ordinary people are forced into bankruptcy.

It plays, doesn't it? This neo-populist rage slips easily off of my tongue. Tar and feather the leisure class, I say. 

But not so fast. Silverglate warns against this sort of easy anger. It is the sort of thing the prosecutors use to fuel prosecutions of doctors, lawyers, businessmen, salesmen, bankers, virtually everyone who, in this complex and regulated economy of ours, sell goods and services under the watchful eye of the government. Each can be prosecuted on a whim; all of us are criminals when viewed through lenses tilted just so. In the world of white collar crime, mail fraud, wire fraud, obstruction of justice, become fall back crimes prosecutors can allege when all else fails. Many defendants chose to enter pleas rather than fight costly and expensive wars than might well vindicate them but at the expense of bankruptcy.

A friend recommended Three Felonies a Day when he learned I was representing a lawyer in an ongoing federal investigation. I told my friend how terrifying the investigation was. When questions were raised about one topic, I met with the feds. I provided documents that rebutted their suspicions that anything was amiss. They acknowledged that they did not know about the documents I showed them. I assumed that the case would be closed and all would return to normal.

How naive.

You see, the government wants to turn this lawyer into a witness against another lawyer. So they are sparing no expense to try to terrify my client. Federal agents have visited his neighbors, his favorite restaurants, his clients: The agents are behaving like organized crime goons, flashing badges and guns in an effort to scare up some evidence of any kind of wrongdoing that they can dream up. Why? They want my client to flip against someone who is the real target of their ire. There are reputations to be made in high-profile prosecutions, you see. The feds are trying to "climb the ladder," as Silverglate calls it, using my client as a rung. The trouble is, there is nothing for them to seize upon. 

But they want their man. So they dog my client, sending almost daily reminders of their ability to root through all the electronic trash they can find: banking records, credit card receipts, old tax returns. They will press until they find something they can use as a club to bludgeon my client. All this with the aid of a secret grand jury, a body that was intended to protect liberty but not serves as the American equivalent of Stalin's secret police.

I've handled white collar cases before, cases involving government employees, bank employees and those alleged to have abused positions of trust. But, frankly, I did not see the political significance of each of these prosecutions clearly enough. 

The defense of a crime of violence is challenging. Jurors are terrified by glimpses of a frightening world. Stepping across the divide separating law-abiding jurors and the blood and gore of the event alleged is difficult. Jurors look upon the allegations as they would upon a foreign culture.

But in white collar cases, there is no divide. When the government can accuse anyone of a crime and the crime is simply engaging in business, or taking advice from a professional, we are all potential defendants. The gap between juror and defendant is eliminated. What is evil now is not the blood on the murder weapon. No, what is evil now is the secret hand of a federal agent, lying, intimidating and insinuating his way into our lives. White collar work, Silverglate persuades, is one of the front lines in the battle against abuse of government power.

Silverglate radicalized me. There is no mob quite so dangerous as a self-righteous mob, and populism is the rage of the day. White collar defense is less the work of those who don't want to get blood on their lapels than it is a world in which spreadsheets and ledgers become the new Molotov cocktail. Reading Silverglate made me eager to get into the front lines and trade blows with a government all too ready to take without restraint.

Read Three Felonies a Day. 

Welcome to the State of Nature -- Internet Violence

In the beginning, John Locke once wrote, all the world was America. We now recognize this as an ethnographic conceit. But the point Locke was trying to make remains valid: Before there was government, there was civil society, and before civil society, there was a state of nature. This world without rules or binding norms is a plaything of political philosophers. It is a tool we use to learn about the concept of legitimacy: How we decide who has authority and the right to impose limits on our liberty.


Anthropologists like to point out that there never has been a state of nature. Individuals do not predate society, rather our sense of individuality arises from, and is formed by, the groups in which we are nurtured and mature. A basic fault line in any political debate is the line distinguishing the individual from the group. My bias is toward libertarianism, so I tilt in favor of the individual.


I say the state of nature exists. You are in it right now. It's called the World Wide Web, a forum into which fully formed individuals emerge and confront one another in the absence of controlling norms or authority of any type. We celebrate the freedom of this unbounded universe, but is there a dark side? Can life here be nasty, brutish and short, as Thomas Hobbes found the state of nature?


I've been reading about cyberstalking and harassment this past week. I've a stalker or two, folks who send me snarky anonymous notes and who then reach out to friends to spread the same vitriol about me. I've traced the Internet Protocol address of one of these folks, and was not at all surprised to see who it was. I already knew the writer was a loose canon waiting to fire. I'm reading a good psychiatric textbook on stalking. Seeing the warning signs is valuable.


Evan Axelrod's, Violence Goes to the Internet: Avoiding the Snare of the Net (2009), is as good a starting point as any for understanding the misuse of the Internet. Axelrod starts with a simple enough premise. The Internet reflects the behaviors of the people who use it. As in any community, Internet users are prone to acts of violence and other unlawful behavior. The Internet is just another community with folks striving to accomplish their ends, this times in a virtual community.


But the Internet poses special challenges. Unlike the confrontations we have with one another in the physical world, there is an imaginary tint to the virtual world. We are free to assume false identities, or no identities at all. The normal restraining impulses of physical presence or facial cues are absent. People vent on line without fear of consequences, either in terms of social disapproval or even prosecution. The Internet lowers the inhibitions to self control. As a result, it becomes a tool of all the various forms of social pathology present in the face-to-face interactions.


The point seems obvious, but it is profound. Look, for example, at the comments in an on-line newspaper about an ongoing trial in any given community. Many of them reflect a rabid, free-floating hostility that is most often repressed, or kept in check, in social settings. Is permitting an inner dog to howl anonymously really a good thing? 


Axelrod's work is really inaptly titled. Sure, it is the case that he cautions that on-line behavior represents simply one part of a continuum of behavior that can lead to more tangible threats of harm. But Axelrod's read focus is on the extent to which the Internet becomes the means through which folks engage in all manner or tortious and twisted behavior. He has overviews of child pornography, fraud and defamation, as well as more narrowly understood violent acts.


Axelrod wrote this volume for the Charles C. Thomas publishing house, in Springfield, Illinois. Thomas is a law-enforcement publishing company, publishing the equivalent of hornbooks for cops on emerging and problematic areas of law enforcement. As a result, the book is concerned less with he dark side of regulation than with the dark consequences of a failure to regulate at all. The unstated assumption that Axelrod applies is the the Internet needs policing. His work is intended to focus attention on classes of harm, educating readers on the sorts of things that can go wrong in an unregulated market.


But the book had real value for me. I am slow to grasp the significance of the Internet in our lives. Reading this volume made me realize just how many cases I have handled in which a computer played a key role, either as the means of committing a crime, an instrumentality making the crime possible, or as a forensic tool used to prosecute a non-computer related crime. The book also appealed to me as a means of conceiving the extent to which tort law can and should grow to permit individuals to seek redress for the harm caused by them by folks misusing the Internet.


The blogosphere is likened by some to the Wild West. We strap on a keyboard and ride the web into a desert of conflicting dramas. The strong survive. Weaker souls perish. The twisted hide behind the cacti and seek to needle the survivors without consequence to themselves. But for all that, the Internet is presents an evolving community. We bloggers live in a state of nature with virtually no rules.


An emerging form of mayhem that stifles easy solution is cyber harassment. Communications, whether emails or online posts, may be designed and intended to annoy or to harass. The sender may seek the cloak of anonymity. It is often possible for find the source of such a communication. But do you bother to contact the Internet Service Provider? Won't that just provoke the sender to go elsewhere to continue their rampage? The internet makes every coward a virtual hero. Or suppose the stalker does not seek cloak of anonymity, and is so bold as to harass or defame in plain view. Do you respond? You might find a lawyer willing to tackle the stalker for fear that she too may become a target. The shifting sands of the Internet provide a firm foothold for cyber bullies. Deciding how and whether to engage folks who cross the line from cranky snark to tortious predator is difficult. The state of nature yields no easy solution here. 


As I read Axelrod on anonymity, I was reminded that years ago, when I was en editorial writer for The Hartford Courant, the paper had a policy of contacting each letter writer before publishing their letter. The paper confirmed that the writer had sent the piece, and then printed the writers name with the published letter. In this way, the paper protected itself from libel suits. It also imposed minimal norms of communicative integrity. Perhaps the law ought to permit plaintiffs to recover damages from entities that simply pass though anonymous or pseudonymous chatter? It would chill communications, to be sure, but the chill would really amount to little more than scaring off the rabid.


Or perhaps service providers ought to be required to assign fixed addresses to those using their service. A person aggrieved could write to request the name of a writer. Sure, we'd loose some freedom under such a regime. But there would be an increase in accountability.


The dark side of the Internet is that is a world without consequences for those who choose to abuse it. Making users accountable strikes me as a worthy goal.


Question: Can this community police itself? If so, how. I am not sure that Axelrod has the answers, but he was a good start. His brief book provides a snap shot of all the things that can go wrong on line. I recommend it.



Note: Click here for an excellent selected bibliography on related literature. Special thanks to Antonin Pribetic.

Shosel's Supreme Power; FDR's Court-Packing Fight And The Roots Of Modern Jurisprudence

Good books are like good movies: When they're done, you hope there will be a sequel. So here is a request to Jeff Shosel, please write next about the intellectual history of the current Supreme Court. Half the work is already done. You did it in your last volume, brilliantly executed, Supreme Power: Franklin Roosevelt vs. The Supreme Court (W.W. Norton, 2010).

We're an early to bed early to rise family. Except in my case, where invariably I awaken to read for several hours in the middle of the night. It's quiet then. No distractions of any sort. Last night, I finished Shosel's account of the "switch in time that saved nine," Roosevelt's proposed legislation to pack the Supreme Court with justices more in line with views of the Constitution Roosevelt believed served the national interest.

This book is must reading for anyone who litigates constitutional issues. Shosel doesn't bring a lawyer's understanding to his history. The former Clinton speechwriter is trained as an historian. I suspect it is the lack of the cluttered and sometimes claustrophobic vocabulary of a lawyer that makes the book such a good and accessible read. Shosel would agree with Roosevelt that the Constitution is "a layman's document, not a lawyer's contract."

Roosevelt's efforts to focus national resources on the economic crisis we now refer to as the Great Depression was stymied by a Court populated by a majority of justices prepared to find almost any assertion of federal power anathema. As one New Deal provision after another was struck down, Roosevelt fumed. Were archaic notions of the nation's promise strangling its ability to deliver on that promise? The administration debated Constitutional amendments and legislative proposals to elimate judicial review, permit a legislative over-ride of a Court decision, and then, finally, to add as many as six new members to a Court trapped in the horse and buggy era. When Roosevelt came out swinging in support of the proposal to add justices, the nation was electrified by a debate about the role of the Court in our life. When several members of the Court later switched side, and ruled in favor of the New Deal legislation, the court-packing plan went belly up. Roosevelt declared victory. Of course, it was really not this simple.

The struggled over the Court''s New Deal identity really set the stage for the conflict about the Courts in our time. The court remains a controversial instutiton capable of stirring passionate disagreement.

Hence, in our time, the Federalist Society walks the walk of those justices who, in the early 1930s, struck down laws against child labor and the minimum wage. The main difference? Today conservative jurists have a well-honed ideology to guide them not just in deciding cases, but in applying litmus tests to just who is suitable to be a judge. Orignalism, America's closest brush with Oriental necromancy, is a product of the defeat of the Court's conservative wing. The vanquished retreated, and nurtured its own ideology in retreat during the days of the Warren Court. A conservative coup, decades in the making, yielded the Court now governing. This Court serves powerful social interests, but pretends merely to be interpreting a contract.

The Roberts Court makes law every bit as much as did the Warren Court, although it is not ideologically possible for conservatives to admit this. No, the gambit they employ to end debate is that they "find" the law. Only those who view the Constitution as, gasp!, a living instrument, "make" law. Courts should not make law. That is bad, bad, bad. Shosel's book lays bare the origins of this species of silliness.

A century ago it was common to speak of the Constitution as living, an organic instrument tethered to the laws of life. Shosel reminds us that long before contemporary conservatives took pot shots at the living Constitution, Woodrow Wilson, Oliver Wendell Holmes, Jr., and others supported the view of our founding document as a forward looking charter capable of growing and expanding to meet the new challenges of new days.

As I read Shosel I from time to time sat bolt upright and wanted to exclaim "Eureka!" There really is nothing new under the Sun. The deep crust of nectrotic interprative crust that has made such clauses as the due process clause virtual dead letters in our law today is of only recent formation. The battle for the Court and the meaning of the Constitution is a struggle that will live so long as the republic endures. Today's orthodoxies are yesteryear's bold and radical nonsense.

I would love to see how Shosel interpret the Court's current intellectual climate. I am less interested in this history as a matter of the development of legal doctrine. There are a thousand and one professors out there who can spin legal docrtines into theoretical webs capable of simultaneously explaining everyithing and nothing. What's needed is less theory and more history. A perfect companion volume to Supreme Power might be entitled Yesteryear's Triumph. It would be a tale with its roots in the 1930s and a jurisprudence set into exile by the threat of court-packing. It would be a history of the Court from the end of the New Deal era until our time, focusing on the legal interest groups whose purpose it is to create legal doctrines telling others how they must live. What do you say, Mr. Shosel? I know you are up to the task. Supreme Power, a triumph, proves it.

Turow's Innocent: Trial Rendered Almost Perfectly

I like my novels to resemble the life I lead: conflict-driven, filled with complex and often insoluble problems, and striving, against all expectations, for something like grace. Hence, I love Scott Turow's fiction. For my money, he is the best lawyer-writer alive. His latest, Innocent, is a triumph.

Old characters are revisited. Rusty Sabich, the protagonist in his debut work of fiction, Presumed Innocent, published in 1986, is now 60-years-old and a candidate for the state Supreme Court. His marriage to Barbara survived the aftermath of Sabich's prosecution for the murder his mistress, Caroline Polhemus, a case that ended in a not guilty verdict. The couple's marriage has survived on terms of a tenuous truce maintained primarily to assure that their son, Nat, has a fighting change what all parents strive to provide their offspring, a better life.

But discontent follows Sabich throughout his life. When his wife, a woman struggling with manic depression and a family history of heart disease, dies silently in their bed one night, Rusty sits beside her for a day before finally calling the police. There are years to reckon, unspoken promises both kept and broken, that need sorting before the formal and public process of grieving begins.

The coroner finds Barbara's death to be the result of natural causes. But a determined prosecutor in the same office that had once employed, and prosecuted, Sabich, believes that a man who had once beaten a murder charge is capable of killing again. He digs in, and presses a reluctant Tommy Molto to bring charges. Sabich is charged, and a public trial focuses on the circumstantial evidence that points to his guilt. Sabich hires Sandy Stern, the suave lawyer who successfully defended him in his first go round with the state. All are familiar characters, and live has changed them, presenting unexpected reasons for hope and despair.

Turow writes about trial like a man who has tried a case. He gets evidentiary foundations, materiality, relevance, and ebb and flow of the law of the case. With one notable exception, the courtroom scenes are convincing and well crafted. (You will have to find the failure yourself.)

The novel unfolds in chapters told from the points of view of different participants in the trial. You understand at once why the state feels the it must bring the case. Indeed, the case looks powerful. But is the circumstantial evidence of Sabich's guilt indicative of actual guilt? Complex medical and computer evidence drive the trial.

Sabich has secrets to keep, secrets that may protect his son from failure in love. Mindful of his own failures as a lover, husband and father, Sabich struggles to keep the secret, even when doing so costs him dearly. The novel can be read with profit by young lawyers as a cautionary tale about the attorney-client privilege. Sure, the privilege exists to give clients unfettered access to legal advice, but what happens when a client refuses to tell his lawyer the whole truth? What happens when trial is an approximation of a truth never fully told?

My sense is that although we call trial a search for the truth, the whole truth, and nothing but the truth, is rarely known. That is in part because knowing the truth about all the vectors that produce an event is nearly impossible. But it is due in larger part to the fact that a client's, and a witness's, pragmatic situation in the world colors their view. What you see quite literally depends on where you sit.

Turow writes beautifully about characters with the sort of nuanced lives most of us live. In Innocent, Turow delivers what is almost impossible to accomplish, a plot that unfolds with a sense of driven necessity yet peopled by characters with internal lives worthy of psychoanalysis. This is Grisham with a third dimension.

Innocent is a must read, and Turow, well, the man is a gem. I hope he writes yet another book about Rusty Sabich. I didn't realize how much I missed the man until I read this book. Turow is the gold standard in legal literary fiction.

A Kinder, Gentler Apocalypse: On The Beach

My midnight readings have taken a dark turn for the past few weeks. Books about the apocalypse and social upheaval intrigue me. This past weekend, I finished another, Nevil Shute's On The Beach, written in 1957. Call this a kinder and gentler version of the end.

Nuclear war incinerates the combatants, and most of the world. North America is decimated. Europe is a memory. Asia is no more. A few outposts of civilization remain, in South America and in Australia. Yet no one is immune from radiation sickness. It will be a long, long time before the Earth recovers from war. Australia monitors the advance of radiation on the air currents, counting down to an estimated date of arrival, and certain death.

An American submariner surfaces and submits to the command of the Australian government. He is stationed at Melbourne, where he makes the acquaintance of a British Naval Officer, the officer's wife, and a woman who struggles against despair.

Although the end draws ever closer, Shute's characters never lose hope. The submariner remains faithful to his family killed in Connecticut, shopping for presents for them and planning a reunion in September, when he heads home. (That is when radiation poisoning expects to make Australia uninhabitable.) His decency redeems the despondent woman, and the two form a liaison that exists in uneasy equipoise with his commitment to the memory of his wife and children. Another couple in the book gives birth to an infant, and plans endlessly for a garden that will never grow. A farmer worries what will become of his cattle.

This book celebrates ordinary decency. The end draws neigh, and yet shopkeepers continue to charge reasonable prices for their wares. Order is kept not so much through the dead weight of force, but through an internal sense of decency. This is not Thomas Hobbes state of nature.

Shute writes of a different world. It is hard to imagine a peace of contemporary fiction envisioning the end of the world as we know it without graphic violence and the thrill of immanent destruction.

This book may not resonate with those who did not spend time on their hands and knees crawling beneath their desks in air raid drills in the era of the Cuban missile crisis. I recall the drills well. We were told to turn away from the windows as we hovered beneath our desks. Just why always amazed me. Did they really expect to survive the blast and fireball we expected to come?

Visions of the apocalypse are different now. We worry less about nuclear war, although last week's summit suggests we might be fooling ourselves by dismissing the possibility. Today we worry more about ecological disaster. It is almost as though we cannot help but conceive an end to history. Trapped, as we are, in a world bounded by space and time, I suspect there is something about the simple narrative rhythm of beginning, middle and end that compels a consideration of the last act. Shute's characters face their end with a dignity and grace that reveals civilization is really not about the bricks and mortar that provide the physical metes and bounds of our lives. Civilization springs from within, and it is within us to cherish the graceful deed even when all else fails.

The end does come in On the Beach. There is no escaping it. Yet each character lingers on in the hope that the future beckons. And when the night falls, it is greeted with honor and a sense that duty extends beyond the reach of an individual's life: duty transcends. Perhaps Nevil Shute is an apocalyptic Kantian. I recommend the work as a classic in the genre, and as a book filled with characters worth loving.

Earth Abides: Still A Great Read

Bookstores are among my favorite places. And it just might be that Powell's in Portland, Oregon, is my favorite store of them all. I was there last weekend. Wandering the aisles made me imagine the joy of never having to leave the shop. I wondered whether they were hiring.

But too soon the fancy passed. And I was about my business. I am back now in Connecticut, with a bag of books purchased and transported cross country with almost superstitious intensity.

One display at Powell's caught my eye. The theme was apocalyptic literature: musings, really, on what the world would be like were some catastrophe to strike and the world as we know it were to end. This is the genre of Cormac McCarthy's The Road, now a so-so film, but, in fact, one of the most powerful stories about the love between a father and son that I have ever read.

On the shelves at Powell's was a book I had heard of, but never read: Earth Abides, by George R. Steward. It was first published in 1949, and was reprinted with an excellent introduction by Connie Willis in 1976 by a division of Random House. The book won the first International Science Fiction Award.

Until recently, I've not been much of a fan of science fiction. The world of facts in which I am immersed as a criminal defense and civil rights lawyer is strange enough for me. There is a numinous aura at the courthouse door that reminds me of the Twilight Zone.

But the I've been reading more science fiction lately. I am taken by how a small, or not so small, change in the material circumstances of life can yield profound consequences not just in the psyche of individuals, but in the institutions and mores of a given society.

So when William Isherwood recovers from a snake bit in Earth Abides and then learns that a killer virus has decimated the human race, I was gripped. Ish lives in the San Francisco Bay area, within eyesight of the Golden Gate bridge. As the silence descends, he travels across what was the United States in search of others. There are isolated survivors, but no communities. He is along, a new Adam cast from paradise. He faces an uncertain future.

In time, he meets a woman, and small community forms around them. Ish is the leader of sorts. The group learns to survive, largely by relying on canned goods and products remaining after the catastrophe. He lives in his boyhood home. A handful of other souls gather around him, and life assumes a rhythm once again.

Ish is the last American. The group confronts a stranger and then falls ill with the plague brought from afar by this stranger. Some die. Others remain. Ish ages, and then dies amid young men who never knew the civilization Ish had worried so about preserving. As the twilight descends, Ish knows something akin to peace. "Earth abides," he recalls from the Ecclesiastes. But his memory is weak about where he first heard those words.

Millions of books go unread in the university library that used to be more than a second home to Ish. Homes collapse. Rust reclaims the metal girders that once supported structures that seemed permanent. And life stirs, following the push and pull of natural selection set loose from the constraints of millennia.

This is a wonderful tell well told. I read the book late into the night, missing sleep as I watched the human spirit emerge from a civilization gone to ground. More than once I watched the Last American struggle against despair, always finding hope in the ordinary cycle of simple living. Earth abides, I'd find myself thinking, even though civilizations collapse and societies crumble. Earth abides, I thought, and suddenly the time I spent laboring in my own gardens to prepare for the Spring planting seemed like sustaining work.

Earth abides, I mused, as Wall Street stumbles and politicians become an elite detached from the lives of those I represent and the life I live finds moorings in visions increasingly detached from the rhetoric of the of a world gone by. Every end is also a beginning, I learned. And as William Isherwood died in the company of young savages who were born and who matured in a world foreign to the one in which Isherwood was reader, I found hope in simple things.

This is a book of quiet dignity. I cannot recall now who it was I ran into in court the other day who asked why I had not recommended something to read in a while. I hope he reads this review, and I hope all of you read Earth Abides.

Olson's "The Rule of Lawyers"

Walter Olson is a clear and concise thinker. I've read his blog page, Overlawyered, intermittently over the years and have, frankly, been won over by his common sense. There are too many lawyers. We have too much power to disrupt the lives of strangers with impunity. As a society, I am persuaded, we are overlawyered. A few weeks ago, I thought it time to try one of his books.

The Rule of Lawyers: How the New Litigation Elite Threatens America's Rule of Law (St. Martin;s Griffin, New York, 2003) did not disappoint. But, true to my profession, which is that of a trial lawyer, I read the book with a disconcerting sense of ambivalence.

The Rule of Lawyers is not about the world I inhabit. My firm is devoted to criminal defense and federal civil rights. We work both sides of the Fourth Amendment, using it as a shield for those accused of crimes and as a sword for those abused by police officers. In recent years, however, we have come to file fewer and fewer federal civil rights actions. The reason? Judges have increasingly made the federal courts inhospitable for these claims: Management-happy judges now insist on reports, conferences, special pleading requirements and all manner of digital manipulation of files that contribute little or nothing to the orderly progress of litigation. In Connecticut, for example, a new presiding District Court Judge, Robert Chatigny, ushered in a new plan years ago to have cases move quickly through the system. Cases were to be trial ready in 18 months; to assure that, the judges of the district were encouraged to do a better job monitoring the files. In all but a few cases, the experiement has been a failure. The docket still crawls; all that has changed is the amount defense counsel get to bill for wasting time.

But I disgress. The real culprit in the federal courts has been the expansion of qualified immunity, a judicially created doctrine that makes it very difficult to get a case to the jury. One sign of the change in the law? The two volume edition of the Practicing Law Institute's annual practice manual for civil rights lawyers now consists of an entire volume on qualitifed immunity. It used to be a mere chapter in earlier editions.

Walter Olson would like this development. And perhaps he is right to do so. It is perishingly easy for lawyers to get a case into court. And once there, a defendant pays through the nose for justice. The American Rule prohibits a judge from assessing costs on the loser. Hence, there is little incentive for plaintiff's lawyers to avoid playing spin the bottle with other people's money. Olson proposes elimination of the American Rule. I agree with him, but not entirely: Transferring costs to individual plaintiffs would work a regressive sort of harm on those litigants least likely to afford it. I say require plaintiff's lawyers to post a bond as security for costs. To cover the cost of this bond, lawyers could purchase something like insurance. As with the case of bondsmen, lawyers would be permitted to post only so much insured bond. Defendants could then recoup the costs of litigation without undermining access to the courts by ordinary people. All that would be required would be asking lawyers to make cost-benefit analysis about their own funds.

So what was my ambivalence about the Olson book? I hate to confess this, but here goes: I was envious of the big-time lawyers in the mass tort and products liability business. I've met a few of these folks at one location or another. I recall meeting John Quinn, now deceased, several years ago in Wyoming. He was rumored to have more money than God. I turned my nose up at the time. How could one lawyer have thousands of clients? And what about the ethics of active solicitation of the injured? It seemed, and still seems, sleazy. But it does take my breath away to learn about lawyers with the same J.D. I possess making enough money to cause Croesus to weep.

Envy aside, however, reading Olson made me better understand why lawyers are disdained by many in the business community. I read of one industry after another crippled by litigation and I wondered whether markets really ought to be cleared in such a manner. And if litigation is to decide the life or death of an industry, ought there not be countervailing pressures on lawyers? I end where I started. Lawyers have too much power. We play with the lives of others with impunity. I think Olson's on to something.

I await his next book, and encourage him to take a look at the lives or ordinary lawyers. Not all of us own jets. I'm thrilled with first class on the few times I've tried it. Most often I fly coach.

Eichenwald's "The Informant"

I don't get out much, but I do love to read. So while I have yet to see the movie, The Informant, released this past September, I did read the book, published in 2000. The book is fantastic, and I commend it to anyone interested in a sustained look at how the Government puts together a white-collar prosecution.

Don't roll your eyes, now. There is more to the criminal law that blood, lust and gore. Greed can leave a trail every bit as fascinating. And it did in the case of Mark Whitacre, a complex figure at the heart of the federal government's examination of price-fixing by the Archer Daniels Midland corporation during the 1990s.

I stumbled upon the book while reading up on the use of confidential informants in preparation for a trial. Frankly, I was ordering some odds and ends on Amazon, when the computer's alogrithm suggested I might also enjoy this book. Why not? I thought.

I groaned silently when the book arrived. It's 600-pages long. And fasinated as I am by the arcania of criminal law, I wondered whether I a book on price fixing could really hold my interest. It did. I spent several nights in the past week transfixed, calculating the benefits of sleep versus the pleasures of fine writing and an engaging narrative.

The Informant was written by Kurt Eichenwald, who reported the story for The New York Times. He relays the story with the quiet confidence of a man who has mastered his record.

As the plot thickens and unfolds, I found myself thinking again about the causes of crime. Mark Whitacre appeared to have it all. A young Ph.D. from Cornell, he turned his knowledge of nutritional biochemistry to the service of giant corporations aspiring to improve food production worldwide. Given responsibility for production of lysine, an amino acid essential to our diet, Whitacre soon faces production difficulties at his plant. When the possibility of industrial espionage is raised, the FBI launches an investigation. Whitacre flips early on and is soon wired and attending meetings around the globe at which the major producers of lysine fix both production quotas and prices.

What is in this for Whitacre? He harbors fantasies of bringing down the extant leadership of the corporation and being named chief executive officer by acclamation when outraged shareholders learn about the price fixing. This is the sort of narcissistic daydream all of us harbor from time to time. But what distinguished us from Whitacre is that we can tell our fantasies from reality. The line became blurred in Whitacre's case, and the result was utter chaos: He squirreled away millions while serving as an FBI cooperative witness. And he lied to the feds about it. When he was caught, counsel for Archer Daniels Midland tried to torpedo the investigation of price-fixing by dislcosing Whitacre's lies. It didn't work, and Whitacre ended up witha long prison, serving most of it. He is now apparently living on the West Coast and is CEO of a biotechnology company.

Whitacre fascinates me. He did not seem utterly without the ability to distinguish truth from fiction; he simply thought he could outsmart the world and fool not just the FBI, but shareholders, his colleagues, and, in the end, even his wife. When he fires one lawyer who tried to counsel him, I sensed the lawyer's relief. It is hard work representing a person whose private vision of the rational does not correspond to what the world regards as reasonable. Many are the hours experience lawyers count as lost to the voids of those poor souls who are unmoored to the world the rest of us take for granted.

I rate Eichenwald as one of the best non-fiction works on how an actual case developes. I rate it the white-collar crime equivalent of Jonathan Haar's A Civil Action. Sure, it took me ten years to find the book. I pass along this review so that you can find it now. It's a great read.

Methland and the Rise of an American Peasantry

Imagine a world in which workers are not paid enough to live but are given narcotics sufficient to stoke abnormal energy which they can use to work themselves literally to death. Distant overlords profit from the trade in these drugs. The workers are left to rot and die in hidden places, well away from profit centers and real life chances.

Imagine such a world and consider the town of Oelwein, Iowa, population 6,126. As rendered by Nick Redding's stunning report, Methland: The Death and Life of an American Small Town (Bloomsbury, New York: 2009) the world of hollowed out worker and zombies ground to dust by industrial overlords is not the stuff of fiction. It is small-town America in the here and now.

I live in Southern New England, and I am a criminal defense lawyer. From what I can see, crystal methamphetamine has not flourished here. Perhaps Connecticut is simply too affluent to have given over to despair. Perhaps our time is yet to come. Today's New York Times reports that millions of Americans have given up hope of ever finding decent work again. Meth seems to move into communities just awakening to despair: the drug thrills the senses while dulling the pain. Taken long enough, the drug also drives folks quite literally out of their minds.

Redding's reporting is chilling. He asserts that no matter what the government initiative to try to curb the importation and distribution of meth, it seeps across borders and into our communities. Redding sheds light on Mexican drug cartels and their reliance illegal immigrants to move product North.

I was reminded, sadly, in this book of arguments that Dominic Crossan made in several of his books on the historical Jesus. There are cultural conditions in which a peasantry is kept just at the cusp of survival. The affluence of some comes by exploiting the laboring class: giving them just enough to work but not enough to thrive. Crystal meth lowers the cost of keeping a transitory work force alive. Redding tells of workers forced to work double shifts to replace wages from good jobs gone overseas. Meth helped produce a superhuman sense of strength: call it soma for the dispossessed.

Methland scared me. Redding doesn't fall into an easy sort of pop-Marxism. The material conditions of the working class throughout middle America are deteriorating. But revolution is not in the air. No, rather extinction looms, extinction by means of self-destructing. The horror of narcotics is that use dulls awareness of systemic issues. It is the perfect means of treating people as little more than animals. Few of us have the ability to peer far and deep into the future, or to discern the distant causes and effects that yield the daily rhythm of our lives. What we do is shuffle, hoping always to keep ahead of the day's sorrows. Methland reports that there is a broad spectrum of American society in which people are responding to economic change by means of self-destruction. It is terrifying.

Larsson's The Girl With The Dragon Tattoo

Oh, what a heart-breaking ending. I won't give it away, I promise. Let me just say this: The last paragraph of Stieg Larsson's The Girl With The Dragon Tattoo broke my heart. And the book was so good that almost from the beginning, I was unable to put it down.

I say almost, because Chapter 1 nearly cost Larsson my readership.

Mikael Blomkvist is a Swedish muckraker, a financial journalist who suffers a devastating judgment in a civil action for libel. He has taken public aim at a Swedish tycoon, and, apparently, misfired. Blomkvist is disgraced and has a brief stint behind bars to pay for his damage to another's reputation. (Can one really be imprisoned in Sweden after losing a civil judgment?) All this nearly lost me at the get-go because I simply lack the financial savvy to grasp what went wrong. I feared for a moment that I was about ready to read a Wall Street pot boiler about derivatives and other imponderables.

How wrong I would have been.

This might be the best thriller I have read in the past several years. The writing is superb, the characters well-drawn and convincing, the plot even: In every way, this book satisfies. Larsson, who died in 2004, was a jeweler among stone masons.

When a retired executive hires Blomkvist to take one last look for a long lost niece, Blomkvist balks. His reputation is in tatters. The prospect for revenge against the man who brought him low is dangled before Blomkvist, and a fat check two. Blomkvist tackles the assignment with surprising results.

Along the way, he meets this strange and quirky girl, this girl with a dragon tattoo. She lurks throughout the book as a presence hard to label, a sort of Everywoman who hurts and throttles against things unseen.

But the ending. I cannot get over the ending. Good lord, please tell me that above the portal of every birthing room there is not a welcoming sign reading "Abandon Hope All Ye Who Enter Here." Larsson wrote without illusion. I cherish my illusions. The ending shattered one here. And it hurt.

Read the book. If you don't like it, let me know. I might just refund you the purchase price.

"The Real Wizard of Oz..."

L. Frank Baum's Wizard of Oz is one of my favorite stories. I saw the movie starring Judy Garland long before I read the book. But in adulthood, I reread the story every year. This simple tale about power, longing, hope and courage rates right up there with the New Testament, Homer's Odyssey and other great works of literature that sustain me.

Rebecca Loncraine's new biography of L. Frank Baum, The Real Wizard of Oz: The Life and Times of L. Frank Baum, (Gotham, 2009) appealed because I know so little about the genius who wrote the story. A review in the New York Times book review caught my eye; soon enough, the book was mine.

Loncraine is Welsh, with a Ph.D. in English literature from Oxford. At first, that put me off. What can she know of this quintessentially American storyteller. I struggled through the first chapter or so, feeling the work was over-written. But soon enough the work's exacting attention to detail gripped me. Mysterious disappearances of aroenauts over Lake Michigan in their balloons resonate; so do troubled times spent in Aberdeen, South Dakota, and worries about weather; the what of spiritualists trying to communicate with the dead. Each nook and cranny of Baum's life and experience is brought to life. Those who know the story of Oz well can find the source of much loved images in the ordinary data of experience.

This is a wonderful book for those interested in Oz's creator and the formative influences making possible this lovely tale. There is a decent bibliography at the book's ending for those who want to know more. For my part, I learned about an author whose works I did not know, Andrew Lang. I've just spent a delightful half an hour or so reading about Lang in various bibliographic databases, and have ordered an annotated bibliography of his works. Lang popularized fairy tales in the United States a century ago. We need the nourishing power of those stories in our time as well. I am looking forward to reading The Blue Fairy Book, which I also ordered today.

Dorothy's trip to Oz took the form of a book in 1900. But it has become so much more than a book. "We're not in Kansas anymore," were lines she first uttered; we say them know when we find ourselves suddenly stretched to see things anew.

I am entranced by Loncraine's book, and looking forward to another reading of The Wonderful Wizard of Oz. There is magic there, nourishing magic for thirst souls.

James Wilson: The First Justice

James Wilson was the first justice sworn in to serve on the United States Supreme Court. He took the oath of office on October 5, 1789, two weeks before John Jay, the first Chief Justice, was sworn in. Wilson died, disgraced, hiding from creditors in North Carolina, on August 21, 1798. Although he was never impeached, he was absent from the Court for the last year of his life. He was simply afraid to step foot in Philadelphia lest he be imprisoned by debtors, as had happened twice in the closing years of his life.

It was a sad ending to a legal career marked by extraordinary brilliance. Born in Scotland in 1742, Madison came to the United States in 1765, and read law for just under a year with John Dickinson. His law practice quickly thrived; throughout his career he was a bookish sort of lawyer, dedicated, to be sure, to his client's interests, but also alive to the Eighteenth century's promise of a universal science of law. He was the first lecturer on law at the University of Pennsylvania, and his lectures ranged from natural law to the forms of pleading.

Wilson harbored ambition to serve as Chief Justice, and wrote to President George Washington seeking the post. But the president may well have been mindful of Wilson's financial difficulties; Wilson was deeply in debt as a land speculator and budding capitalist. Wilson also acquired many enemies in Pennsylvania's fractious debates about the state constitution. The father of seven children, Wilson's romantic life caused a stir in Boston in 1793 when he began to court Hannah Gray; Wilson was 51-years-old at the time, but Boston wags thought him fifty-five; his true age hardly mattered, though, Ms. Gray was at most 19 years old and younger than several of Wilson's children. The couple married in 1793.

As near as I can tell, there is only one biography of Wilson in print, Charles Paige Smith's, James Wilson: Founding Father 1742-1798 (University of North Carolina Press, Chapel Hill, 1956). Smith's work was apparently commissioned by the Institute of Early American History and Culture at Chapel Hill. It has gone out of print, but I was able to find a copy on line at a used book shop.

Smith's work is strangely uneven. He recounts well and reliably Wilson's role in the Continental Congress and debates over the new Constitution. His treatment of Wilson as a justice is lackluster. That may not be a fault of the biographer, however; the Court's docket did not immediately take shape. The first few years of the institution were unremarkable. Most intriguing about Smith's work is an impressionistic couple of chapters about Wilson's views of the nature of law and government; Wilson did not emerge as a philosopher of the first-rank; his business affairs intruded upon the hours he could steal for speculative enterprises. Even so, Wilson's speculations are brilliant and inspiring. I am now scouting for a copy of Wilson's Works edited by James Dewitt Andrews in 1896; this edition contains Wilson's notes for his early law lecutres. Aspiring scholars could well supply the gap in the literature on Wilson by a sustained look at the sources of his political theory.

An overall assessment of Wilson? In the infant republic the law had not yet fractured into separate spheres dividing practitioners from judges and both from scholars. Wilson apprenticed with Dickinson, one of his generations leading lawyers, and they earned his keep in private practice. His brilliance drew him into the transforming struggles of his time, where his learning made him as influential a founder as James Madison. He died young, at 56, struggling beneath a crippling mountain of debt that seems to have broken his spirit. And he was throughout his life on difficult terms with his mother, who had hoped and prayed that he would assume a clerical career. He was no saint, and refreshingly so.

Wilson was a public intellectual at a time in which there were no riches to be gained from opining. He risked his life to help form a new nation and was a visionary in terms of the importance of an independent judiciary. Yet he was a man that even his biographer had difficulty understanding. "Tracing over the events of Wilson's life." Smith notes, "we are impressed by the lucid quality of his mind. With this went a restless energy and insatiable ambition, an almost frightening vitality that turned with undiminished energy and enthusiasm to new tasks and new ventures. Yet, when all has been sad, the inner man remains, despite our pleadings, an enigma."

Is the enigmatic character of Wilson a weakness? We know enough to know of his brilliance. In our time, justices rarely sparkle as intellects, and when they do so, the glare they reflect is too often so narrow and focused as to distort, rather than illuminate, their objects. I wish knew less about the personal lives of the justices we now seek, and that, as a class, they were better read, and more passionate about ideas. Wilson was a giant in a time of giants; perhaps a young republic fostered such learning. Perhaps we need a little ferment in our time to shatter the depressing mold that seems to make all our justices look so much alike.

John Marshall: Would He Make The Grade Today?

The nomination and now near-certain confirmation of Sonia Sotomayor as a justice of the United States Supreme Court stunned me. I am disconnected from the great personages and events of history. I'm a backwater kind of guy, representing folks who rarely make life's larger radar. But I have appeared many times before Sotomayor, and I like her. How did she cross the line from workaday stiff to assume a place in the larger world?

I've been reading through the thumb-nail biographies of the 100-plus people who have thus far served on the Court. These are gathered in The Oxford Companion to the Supreme Court of the United States, edited by Kermit Hall. Each biography has a brief bibliography. As I read, I keep wondering what it will take to get an ordinary trial lawyer onto the high court this century. Can we force an ordinary schooner through the blockades set by the various legal interest groups and status factories?

Marhsall's 34-year tenure as the third chief justice of the United States Supreme Court is ably and well portrayed in Jean Edward Smith's, John Marhsall: Definer of a Nation (1996). The book is the size of a small telephone directory, but is nonetheless a wonderful and quick read. On balance, Smith's presentation of the legal doctrines the Marshall court crafted is jargon free and accurate. Smith appears not to have legal training; the fly leaf of his work lists his profession as "political scientist." I giggled when I read that, imagining the man conjuring ideal states in a lab somewhere. In fact, Smith is a decent historian.

Marhsall was a practitioner for a time, handling as many as 300 clients per year and struggling to make ends meet in a small practice. He routinely co-mingled client funds with his own, effectively giving himself interest-free loans when times were tight. (Smith notes it was not until 1971 that Virginia's bar was prohibited from co-mingling client funds with their own monies.) To a degree that is comforting, Marhsall struggled throughout his career to make ends meet.

When appointed to the bench in 1801 by John Adams, Marshall had already served the nation in the XYZ Affair, steadfastly refusing to pay Talleyrand any sort of bribe for advancing negotiations with France. As a justice, he forged legal doctrines that assured not just the independence of the judiciary, but also the ability of the judiciary to settle for all branches what the law is, and is not. His decisions also set the metes and bounds of federalism in an era in which the boundaries between state and federal power were unclear and hotly contested. Indeed, reading about Marshall with the benefit of hindsight is sobering. When Marshall wrote to friends about the fragile and even miraculous character of the struggling union between the states, I hear the rebel yell and smell the gunpowder of a Civil War. I suspect Marshall did, too.

Smith reviews Marshall's tenure on the Court term by term, discussing significant constitutional decisions and placing them in their political context. Yet toward the book's end, Smith loses focus. For hundreds of pages, the struggle between Federalists and Republicans is vividly and well portrayed. The parties then fracture: there are high federalists, moderate federalists, and irreconcilable Republicans. Then, seemingly out of the blue, a new struggle dawns, pitting Democrats against Whigs. Smith simply fails to give any account of this partisan realignment: Whigs and Democrats enter stage left without so much as a dramatic chorus to announce the new personae.

What fascinates about Marshall's era was how quickly and easily lawyers moved from the ordinary practice of law to the bench or into public office. There weren't giant law schools insulating legal academics from the street. Nor did large law firms cultivate a power elite removed from the pulse of ordinary life. Force of character and intellect governed prospects and were more rawly on display. A lawyer could stumble, fall and recover and still remain in the game. Smith recounts how during argument in one case, Marshall took a brief recess so that the lawyer, Luther Martin, a notorious drunkard, could recover his wits, and perhaps some sobriety, before continuing.

One charming curiosity: Smith reports the case of a prominent gentleman seeking legal counsel. The man hires a well-coiffed lawyer from Richmond. While waiting in court for his case to be called, the man watches Marshall, a young lawyer of uncertain sartorial standards, argue against the very lawyer the man had hired. The client was so impressed by Marshall, he asked Marshall to take his case. But he explained that he had already given the other lawyer $95 of the $100 he brought with him that day. Marshall agreed to take the case for $5. It is a great story. Unfortunately, the identical yarn is reported of Abraham Lincoln in Julie Fenster's The Case of Abraham Lincoln: A Story of Adultery, Murder, and the Making of a Great President (Palgrave MacMillan, New York, 2007). Both stories can't be true; perhaps neither one is.

It was a rough and tumble world in Marshall's time. One has the sense that young men and women did not conceive career trajectories for themselves in high school or earlier and then set about connecting every conceivable dot such that they could present, well past mid-life, as people worthy of trust. Have we created a new class of courtiers, men and women who prance and preen not at an imperial court, but in the plush halls of large firms or within the Ivy-draped walls of just the right schools, learning manners, protocol and just how to kiss the right ring and the right time? Oh, for a whiff of genius every now and then.

Marshall's brilliance is evident in Smith's biography, and so is the struggle of the judiciary to establish for itself an identity and role within an emerging nation. Throughout it all, Marshall appears to have remained a good and simple man, notable for his plain appearance, simple tastes and devotion to his wife. Would Marshall make it onto the high court today? One can't say. There weren't a set of "right" schools to attend in his time, no large firms cultivate prospects and the government was too new to have fostered an elite cadre of professional bureaucrats. One needed only talent in those days; today one needs talent plus. Ours is the loss.

LaPlante's Salem Witch Judge

Twenty people were put to death during the Salem witchcraft trials in 1692, one of them pressed to death by heavy stones placed atop him until his ribs snapped and he suffocated. He just wouldn't enter a plea, even of not guilty to the charges. So long as he held his silence, authorities would not be able to seize his land or estates. He was, as the Puritans might have said, silent unto death.

Salem is synonymous with mass hsyteria. How is it that authorities put a score of people to death based on evidence that makes Halloween look like a national holiday?

Eve LaPlante's, Salem Witch Judge: The Life and Repentance of Samuel Sewall (Harper Collins, 2008), provides answers.

Sewall was one of the judges who sentenced the convicted witches to death. He was also a lifelong diarist. Sewall, a distant relative of Sewall's, recreates Sewall's world. We see man not so much intoxicated by God, but living in the daily dread that he might not be among the elect. Damnation was ever present in Sewall's mind. Every sign, every act, was a token reflecting the hand of an omnipotent God. In his diary, Sewall reflects what I call the paradox of Puritanism: he writes intimately of his longing for God's approval, writing directly to the God he presumes can know his thoughts and innermost longings; yet this intimacy reflects the terror that God will reject the writer. I believe, Sewall writes, help thou my unbelief. The diary entries are really entreaties to a God that is neither seen nor heard but nonetheless believed to be ever present.

In the early 1690s, Boston and its environs were periodically swept by illness. Quarantines were not uncommon. Hardy Puritans who believed they had been transplanted here to establish a city on a hill, were left to wonder about why illness came from God to rebuke them. And so, too, with the French-Indian wars. Why did God permit Catholics and pagans to decimate God-fearing villages, burning houses, killing and capturing men, women and children? And what of infant death? As Sewall watched one child after another or his die shortly after childbirth, he felt chastened. Evil was afoot, he knew it. In the name of God, something must be done.

Fenster does a good job capturing the grim contours of Sewall's life and the broad pressures to do something, almost anything, to justify the harsh ways of God to men who put their faith in the unseen.

The witchcraft trials ended almost abruptly as they began. The evidence against the so-called witches was, you see, largely "spectral." What this meant is that folks were convicted based not on what they were themselves observed to have done, but based on what the Devil did when assuming a form similar to theirs. Often, witches were identified by hysterical young women, or folks who bore quotidian grudges against them. Sewall lacked legal training but nonetheless knew that spectral evidence had no foundation in law.

Years after the trials and executions, Sewall publicly repented of his role in the trials. He stood in an open church in the pew belonging to his family, and asked the forgiveness of God and his community. He was, apparently, the only judge to do so. Others went to the grave no doubt believing that they had battled the Prince of Darkness on this new frontier.

Fenster's book is well-researched and well-written. Her bibliography has me hungering to learn more. What's more, the book chastens. We may not be Puritans any longer, but I suspect we just as susceptible to mass illusion. Lawyers will appreciate anew the significance of the law of evidence. We really must insist that when a client's liberty and life is on the line, the state acts based on competent evidence. Fear and terror can be lethal.

Fenster's, The Case of Abraham Lincoln

A long time ago, a client and a good friend gave me a painting: It was a Norman Rockwell of a young man reading the law, apparently on break from the more pressing concerns of earning a living. I think of Abraham Lincoln.


What sort of lawyer was Lincoln?


Julie Fenster's The Case of Abraham Lincoln: A Story of Adultery, Murder, and the Making of a Great President (Palgrave MacMillan, New York, 2007), focuses on the year 1856. Lincoln the circuit riding litigator struggles at the creation of the Republican Party and is a go-to lawyer in Central Illinois. How did he manage to play both roles? Does this year shed light on how he became the stuff of legend?


Sadly, Fenster's book disappoints.


I confess that the title grabbed me. Lincoln, adultery, murder? I am no scholar as regards Lincoln, so I wondered what possibly I could have missed. This is pretty juicy stuff.

As it turns out, Lincoln played a brief but decisive role in a spectacular murder trial in 1856 in Springfield, Illinois, involving the murder of George Anderson, a man suspected of being poisoned and then bludgeoned to death by his wife and her lover. (I refuse to spoil the book by relaying either the role Lincoln played or the outcome of the trial.) Fenster deflty moves from examination of the crime to Lincoln's emerging role as political leader. The book is, for the most part, well written and researched.

However, in the end, it seems as though the two tales never really meet in a way that sheds much light on Lincoln's character. I am left with the sense that the author set out to write a book on Lincoln, couldn't decided between one topic or another, and tried nearly in vain to stitch together one compelling narrative. Alas, the narrative does not compel.

This is not to say the book is without redeeming features. I enjoyed glimpses of Lincoln's life as a lawyer. I loved the insight into the day-to-day practice of law in the 1850s. And I envied the easy days of the law, when a lawyer could meet a client one evening, and try his case the very next day. Most facts really are that simple. Only in our day and age can we have a surfeit of lawyers and at the same time complain about the vanishing trial.

"His style," Fenster writes, "in trial was to allow the prosecution to makes its best case; sometimes, he even helped to delineate the state's case. When he felt that everyone in court understood the opposing argument clearly, he could all the more easily break it apart and dispense with it." Well, that's not much of an insight. Indeed, it is so conclusory as to approach meaninglessness. Even so, this work whetted my appetite to learn more about Lincoln the lawyer, a topic about which I know very, very little.

I will be forever grateful to Fenster for the second sentence of the book's acknowledgements. She cites a 3-volume CD set entitled The Law Practice of Abraham Lincoln: Complete Documentary Edition. This work apsired to collect every document on every case Lincoln worked on during his career as a lawyer. This set is not available in a Second Edition selling for $500. http://www.papersofabrahamlincoln.org/complete_edition.htm

Much though there is fault to find with this book, I am grateful to Ms. Fenster for shedding new light on a familiar figure.

Secret Societies: An Unbiased History of Our Desire for Secret Knowledge

I've never understood why folks belong to secret societies. What's the point of esoteric words, secret handshakes and clubs?

David V. Barrett's Secret Societies: An Unbiased History of Our Desire for Secret Knowledge (2007), didn't help me understand esoterica any better. But it was a good read nonetheless. Ranging from Pythagoras and gnosticism through the Renaissance alchemists and neo-Platonists to Freemasons and the KKK, Barrett debunks the fantasy that there is a secret cabal with hidden knowledge passed from hand to hand since the beginning of time. Of course, for those of us with a mundane case of mind, such a debunking was not necessary.

The more interesting question, and one which Barrett does not really address, is why we assume there is a coherent internal narrative structure to being itself. We seem constructed in such a way that we cannot help but look for deeper laws and rhythms in the fabric of the chaos apparent all around us. Why is that? What fear drives us to conceive fanciful origins and imagine impossible endings? Sufficient unto the moment is the evil therein, I say.

I found Barrett's treatment of the Knights Templar and Arthurian romance particulary fascinating. The notion of a noble warrior appeals, even if there is no Holy Grail. His description of the origins of Tarot cards was also illuminating. Despite these flashes of insight, the book disappoints. Barrett really wanted to write a history of the Freemason movement; again and again he fidgets and fusses about obscure doctrinal and personality conflicts among Freemasons. To my knowledge, I've never met a Freemason. A simple bread and butter account of what they are all about would have fascinated me.

I enjoyed this book a great deal. It has a useful bibliography for further research. (My idea of heaven is a library filled with annotated bibliographies and the time to follow each thread to the very end. What's the old lament? So many books, so little time?)

Check it out if you want to learn more about the secret handshake set.

The Road Hill Murder Stunningly Revisited

The country manor is a set piece of Victorian English literature. On the surface, all is peaceful and orderly. But passion stirs beneath the calm. Sometimes deadly passion.

On the night of June 29, 1860, a three year old boy went missing. His nursemaid awoke to find an empty bed. The child was not with his parents. Indeed, he was nowhere to found, at least not alive. Hours after he was declared missing, the lifeless body of Saville Kent was found amid the waste in the family outhouse, his throat cut, stabbed in the chest and, perhaps, choked. It was an event which transfixed England.

The 12-room home, known as Road Hill House at the time, now known as Lambert House, was locked down for the night. There were no signs of an intruder. The inescapable and unthinkable conclusion was that one of the occupants murdered Saville and dispossed of his body before dawn. But who? And why?

Thus was framed the classic whodunit. Put a dozen people in a house. Father, mother, step-mother, children from two marriages, servants, and then simmer to boiling. The Road Hill murder went unsolved for five years. The Kent family was villified. Scotland Yard, just struggling to find its feet, was called in. Bumbling wellwishers offered clues, tips and even held an inquiry to find the killer. In the end the case was solved by a confession that still has some wondering whether the identity of the killer is really known.

The Bronte sisters read about this case; its eerie almost haunted quality is resonates in their fiction. Dicken's Bleak House reflects the events. And for almost one hundred and fifty years since, there has been a steady stream of commentary and speculation about the case and its meaning. Early detective fiction, controversial at the time, drew upon the tangled relationships in the home for inspiration. And they focused on the Jonathan Whicher, the detective assigned to the case, to develop a new and suspect type of literary hero.

Kate Summerscale's The Suspicions of Mr. Whicher, (Walker & Company, New York: 2008) is a wholly capable and enjoyable look at the crime and its consequences. Ms. Summerscale is the former literary editor of the Daily Telegraph. She writes with a novelist's ease and a scholar's sense of proportion. The endnotes are as fascinating as the text. This is not merely a book about a "true crime." Rather, it is a sophisticated and engaging study of the social history of crime.

One startling effect of the work is a reminder of just how much we take government intrusion for granted today. Ms. Summerscale reminds us that it was once a national scandal in Britain to have undercover police officers surveilling citizens. And England took serious in a way we have long since forsaken the notion that a man's home is his castle.

A newspaper editorial published by the Morning Post 10 days after the Road Hill murder reflects the national mood. By contrast, our attitude toward the Fourth Amendment look attentuated. The exceptions to the warrant requirement have all but held open even the most private spaces to government inquiry.

"Every Englishman is accustomed to pride himself with more than usual complacency upon what is called the sanctity of the English home. No solider, no policeman, no spy of the Government dare enter it ... Unlike the tenant of a foreign domicile, the occupier of an English house, whether it be mansion or cottage, possesses an indisputable title against every kind of aggression upon his threshold. He defies everybody below the Home Secretary; and even he can only violate the traditional security of a man's house under extreme circumstances, ... It is with this thoroughly innate feeling of security that every Englishman feels a strong sense of the inviolability of his own house. It is this that converts the moorside cottage into a castle. The moral sanctions of an English home are, in the nineteenth century, what the moat, and the keep, and the drawbridge were in the fourteenth. In the strength of these we lie down to sleep at night, and leave our homes in the day, feeling that a whole neighbourhood would be raised, nay, the whole country, were any attempt made to violate what so many traditions, and such long custom, have rendered sacred."

You will not be sorry to have read this book.

Choi's Person of Interest: Who Isn't Guilty?

Mere presence is a common defense in criminal cases. Thus, although you were standing next to the person who eventually pulled a gun out and robbed the bank, you are not a coc0nspirator unless you and the robber actually conceived of the heist. You were merely present when another person acted.

But tell that to a law enforcement agent. Sometimes the mere presence of an investigator can turn even the firmest bowels to water. Why is that? What transforms an innocent person into a self-doubting mope?

Susan Choi's, A Person of Interest, provides one sort of answer: We are all guilty of something. Like seedlings in spring we merely await warmth and water to blossom into self-hatred.

Choi's work is not the vacant sort of existentialism that might support such a proposition. Her prose are dense, and her protagonist is a complete human being. He is a professor of mathematics at a midwestern college nearing the end of a ho hum career. As he sits in his office one day steeped in resentment of a colleague who has found fame, fortune and popularity serving the new masters of computer science, a blast throws him to the floor. A bomb has gone off, and it has exploded in the office in the office of the professor's hated rival.

In that instant, the professor became a person of interest to federal investigators. His life is upended. Alive to the deeper rythyms of his life, the professor knows he had no role in sending the bomb, but his mind is now alive and in search of answers. Like the FBI agent who pursues him, the professor plots motive, opportunity and circumstantial evidence to arrive at the identity of the killer. The feds do, too. Both are looking for a killer and both have different suspects in mind.

But I do injustice to the book portraying it as a mere thriller. Choi's prose are as fine as silk. And her rendering of the so-called guilty mind profound. The professor feels guilt for something he has not done. He comes to doubt himself and this doubt draws watching eyes intent on solving a crime. "Even he felt a sick-making upsurge of doubt; he had been in a room right next door, and the merciless truth of these words seemed to press on him lurid ideas that were not true at all. Was he a sleepwalking bomber? A servant of Satan? Why was his own innocence not a plain fact for him, but elusive and fragile, a condition requiring caretaking he couldn't provide?"

Choi doesn't provide the answer. Good fiction does not preach. She writes lovingly of a man alone, who, in a crisis, learns something about love and about trust. Choi's a writer worth reading.

Pietro Brnwa: Remember This Name

Our youngest son is an aspiring doctor, starting a M.D./Ph.D. program this summer. So my wife and I read medical fiction and books about young doctors. I suppose we are afraid we'll run out of things to talk about with him. When a young doctor confronts crime, I am in seventh heaven. My son and I can both talk about things we understand.

A recent review of Josh Bazell's Beat the Reaper, a debut thriller published by Little-Brown, caught both my wife's and my eye the other day. It arrived in the mail a week or so ago. I finished it last night. A one word review could suffice: Wow.

But such a review doesn't permit me to introduce a character that I suspect will become a mainstay in years to come: Dr. Pietro Brnwa, also known as Peter Brown, and, to some, known for reasons that will become to readers, no pun intended, as "Bearclaw."

This is joyous irreverence at its best. Dr. Brnwa is working in a busy Manhattan hospital, a recent medical school graduate learning the ropes after a career switch from a very different profession. He eases the reader through the vocabulary of hospital medicine. "`Stat'," he tells us, "is short, though not very, for statim. `Calling a code' is what you do when you want to pretend you don't know that someone's already dead."

Bazell is himself a recent medical school graduate doing his residency at the University of California, San Francisco. He writes with more ease than you would expect about the criminal justice system, although he is on somewhat shaky ground when he writes about Brady v. Maryland. The decision does not create general discovery rights for defendants in a criminal case. Rather, it merely imposes on the Government a duty to disclose exculpatory evidence. But perhaps I am too harsh on Bazell, for, as it turns out, the evidence to which he refers when nodding at Brady turns out to be exculpatory in a way that trial lawyers can only fantasize about.

But you don't read Bazell for his take on the law. You read him because his prose are taught and filled with the necessary menace that comes of walking along life's edge in the service of others.

"It's a weird curse," Brnwa observes, "when you think about it. We're built for thought, and civilization, more than any other creature we've found. And all we really want to be is killers."

I won't pass the book on to my tender-hearted wife. There are scenes in the book that make you wince, and one that I had to read twice for the horror simply to take shape. It is rare that I am surprised by a thriller. But I was shocked, and for that I am grateful, and anxious to see where Brnwa next surfaces.

It's a jungle out there, all right. Bazell's gift is to make you laugh, even as the tiger stalks and you reckon with moral certainty the dismal odds of survival.

What Are Facts, Anyway?

We say that trial is a vehicle for discovery of the truth. Legal issues are left, in almost every jurisdiction, for a judge to decide; juries decide facts. But just what are facts? The answer is by no means simple.

Quentin Skinner, a Cambridge historian, should be must reading for all trial lawyers. His two volume work, The Fountations of Modern Political Thought (1978) is scholarship at its best. But his three volume Visions of Politics is of potential great use to trial lawyers.

Chapter One of the first volume is entitled, "The practice of history and the cult of the fact." What's this? How can we make a cult of brute facts? Aren't beliefs the stuff of which cults are made? Isn't there a species of intellectual history that draws a comfortable distinction between facts and values?

Skinner reminds us again that there is no such facile distinction. Every look backward, whether it be to recreate why, let's say, Charles I's head was detached from his torso in 1649, or, more prosaically, why a client's car collided with the car of another resulting in the death of her children, results in recreation of the past. Every recreation requires interpretive commitments which, left unexplored, yield a past distorted rather than understood.

This chapter is a reprint of a 1997 essay in which Skinner took on Sir Geoffrey Elton's stark vision of the historian's craft. The debate between the two men sounded much like the challenge of a law professor trying to infuse in students a passion for the law of evidence. The past is inaccessible to use; we can approach in only through the use of interpretive tools designed to yield the most reliable vision possible. But are these tools we hold at arm's length, or does the lens also change the viewer?

Elton counseled method over all: What was studied matter less than the manner of studying. Historians are apprentices learning a craft. Whether they make tables or door stops matters but little. Craft is all.

But as Skinner notes this conclusion is deeply ironic. A critical engagement with the past might yield us better able to call for reform in our own world by freeing us from preconception. Yet a scholar trapped within the confines of his method eschews such a vocation. Education, Elton, is forced to conclude, is a lievlihood perhaps beset by folly.

Of what significance is this to trial lawyers? We, too, are apprentices in a craft designed to teach us to recreate the past. But we do so not in a detached sense of withdrawal from the present. Rather, the present's imperatives press down upon us. The luberty of ther client seated to our right, her future, and the future of her family, depends on our craftsmanship.

I am persuaded that there are no such thing as great cases. But there are great lawyers. Study the trials of Clarence Darrow, or the work of Gerry Spence. In each case, these geniuses used their craft to recreate the past in such a way that jurors were empowered to speak not simply of what has taken place, but of what should come. Their are no brute facts. But there are stories than be told with better and more fluid terms. Great lawyers transform ordinary trials into great stories.

Skinner's essay is must reading for a trial lawyer. There is perhaps no method by which genius can be taught. As Goethe once observed, "talent does what it can; genius does what it must." Yet Skinner informs and reminds that every look back is a present act fraught with consequences for the future. After reading his essay of the cult of facts, I am looking once again at the evidence I have assembled for a trial to come next month. What seeds have I overlooked? What commitments have I made without being aware? Where am I invited to paint on the present's blank canvas in colors my adversary may not even see?