Can Novels Educate Us About Complex Death Penalty Issues?
A Review of Two, By Richard North Patterson and Kermit Roosevelt, That Attempt to Do Just That
By SAM WILLIAMSON
Friday, Jul. 29, 2005Kermit Roosevelt, In the Shadow of the Law (Farrar, Straus & Giroux, 2005)
Richard North Patterson, Conviction (Random House, 2005)
It's stating the obvious to say that whether, and under what circumstances, the death penalty should be part of our criminal laws are difficult questions. For lawyers, though, the death penalty may pose questions still harder than those faced by the general populace in considering this issue: Not only do lawyers wrestle with the general moral questions involved in government-sanctioned executions, but the maze of legal issues that accompany a death sentence are as complex as any in the law.
Of course, the law of habeas corpus, which governs all collateral challenges to a criminal sentence, is the same in theory regardless of whether the sentence is one of death or a year's imprisonment. But in practice, everyone understands that death sentences will be litigated until the moment the death warrant is carried it out, unlike terms of imprisonment, which generate far less intense litigation.
As a result, a Byzantine federal jurisprudence has arisen to govern the multiple federal challenges to state death sentences. Although death sentences make up a tiny percentage of the nation's caseload, they occupy an important and visible chunk of the Supreme Court's docket; although the Court hears less than 100 cases per year, it seems that it hears multiple death cases every term. Although I haven't done any studies, it's hard to imagine another area of the law that, year after year, occupies as central a position in the Court's jurisprudence.
In the mid-nineties, Congress entered the fray of habeas litigation by passing the Anti-terrorism and Effective Death Penalty Act (AEDPA), which was designed to cut down on the multiple habeas petitions that led to prisoners sitting on death row for, in some cases, over twenty years before finally being executed.
AEDPA is a highly controversial law: its defenders claim that it streamlines a process that had begun to resemble Bleak House in its procedural complexity; its opponents charge that it unfairly limits appeals in an arena where mistakes cannot later be undone.
Into this highly-pressurized arena, come two recent novels with lofty aims: to entertain the reader while also providing education about this convoluted topic. While Conviction is the latest work of Richard North Patterson, the best-selling writer of a number of legal and political dramas, In the Shadow of the Law is Kermit Roosevelt's first fictional work.
In this column, I will assess both how well the two books each work as novels, and how well each illuminates the death penalty issues it raises.
Contrasting the Two Books: A Polemic Versus a Caricature of Legal Practice
Both authors have goals beyond education and entertainment. Patterson has produced a vicious anti-death penalty polemic and is clearly bent on convincing the public of the injustice of the current system in general, and of AEDPA in particular. Roosevelt, however, has written a book that tries to portray the "biglaw" legal community as it exists today.
Writing on a legal commentary blog known as "Prawfsblawg," Roosevelt - a professor at U. Penn's Law School -- has stated that law school does not "have the descriptive component that I think would benefit students: this is what your life will be like if you go to a big firm, a smaller firm, a clerkship, a prosecutor's office, and so on. That kind of preparation, and an understanding of some of the choices and tradeoffs that come with these different career paths, is something I think students really don't get from law school. And that, in part, is why I wrote the novel In the Shadow of the Law, which tries among other things to look at the legal system from the perspective of a number of these different actors, and to give a sense of what it's like to occupy these different roles."
Roosevelt's is an admirable goal: many law students do indeed graduate from law school with no idea what their life will be like as a practicing lawyer. Unfortunately, the portrait In the Shadow of the Law provides is so caricatured and unrealistic that I can't believe that any student who followed its teachings would even choose to go into law at all.
The book examines a large, fictional Washington law firm, Morgan Siler; all of the important characters work at, or have other connections to, the firm. More specifically, the book explores two cases that the firm is working on: a large complex tort defense arising from a fatal fire at a factory in Texas owned by an important client, and a death penalty case taken to fulfill the firm's pro bono obligations.
Working in and around these matters are the firm's managing partner, a leading litigator, a top corporate lawyer, an older associate, and a series of junior associates. With the exception of the managing partner, a character so venal and unsympathetic as to defy description, all of the others are miserable. The only one who seems to have any pleasure in his life is one of the junior associates, a recent Supreme Court clerk who is concerned only with milking as much from the system as possible before entering the teaching market.
Moreover, this fictional firm's law practice is blatantly unethical. The leading litigator instructs the junior associates to commit obvious discovery violations (by, among other things, sending responsive documents to Canada, where they would not be subject to the court's discovery order). Equally appallingly, the corporate attorney falsifies documents to make it appear that a corporate structure preventing liability for the factory's parent company was in place prior to the fire.
I can't claim to have worked in a law firm for a lengthy period of time, but I'm pleased to say that I was an associate in the New York office of a large international firm and I never, ever saw any behavior that remotely resembled that described in this book. Roosevelt himself worked at Mayer, Brown (according to his Penn Law bio) for approximately two years. I can only assume that he never saw any behavior approaching what he describes in his book or that, if he did, he reported it immediately to the bar, as would be his ethical obligation.
Of course, this is fiction. But it seems intended to be realistic fiction; Roosevelt's whole portrayal of Morgan Siler is so over-the-top that it strains credulity. I understand that working in large law firms can be very unpleasant, but there were numerous passages where I simply wrote "Oh, c'mon" in the margins, such as where Roosevelt describes a young associate so over-stressed that he "couldn't understand how people found the time for hygiene … he himself had begun to wash only on alternate days."
There were times at law firms where I worked very hard, and, like many others, I even pulled a few all-nighters in my relatively short private practice career. But other than those infrequent mornings, I always found time to wash, and so, as far as I could tell, did my colleagues. In fact, our firm was "kind" enough to have a shower at the office so that all of our needs could be taken care of there and we could keep working away.
If the firm life is so horrible, surely Roosevelt posits other options for young lawyers, such as public service?
Unfortunately not: if the firm lawyers featured in In the Shadow of the Law are committing ethical violations as part of their standard practice, their counterparts in the government are even worse: The prosecutors in the novel are committing actual crimes and intentionally sending innocent men to their death.
Small-town practitioners, in Roosevelt's world, are not an alternative for young lawyers, either - they're busy conspiring with the prosecutors to commit those same crimes. As for the capital defenders, they come off as honorable, but so weary and overworked that this is hardly a recommendation.
In fact, the only career choices that Roosevelt makes seem attractive, are clerking on the D.C. Circuit and the U.S. Supreme Court - two jobs that, unsurprisingly, Roosevelt himself had. I am sure those are great jobs, but if that is the only option for happiness as a lawyer, then Roosevelt is doing his students a grave disservice by letting them go into the legal profession at all, because this privileged route is not a career path open to many people.
Roosevelt's Promising Death Penalty Storyline Ultimately Disappoints
As for the legal discussion in In the Shadow of the Law, the death penalty case begins well; in fact, there were a number of times when I wished that Roosevelt would leave off the gratuitous comments about the law firm, and concentrate on how the young associate was doing trying to fumble his way through the habeas process; that story was quite interesting.
Yet in the end, this promising storyline ends in such a spasm of fantasy, that the ending degrades all of the positive discussion that has gone before. It's certainly not a realistic description of how a habeas petitions proceeds through the system.
In the Shadow of the Law means well, but it just tries too hard, both with its over-wrought characters and its excessively purple prose. The picture of the law that emerges is as divorced from reality as is the use of words like "unguent" and "velleity," or the description of a closet as containing "a crisp army of shirts, a bright artillery of ties, and below, a battalion of shoes like dragons' teeth."
Richard North Patterson's Death Penalty Novel Shows Off His Talents as a Writer
Conviction, however, is much better, and it shows why Richard North Patterson is so successful. Although there were passages in Conviction that seemed a bit awkward to me, comparing In the Shadow of the Law to Conviction showed me how hard it is to write good legal fiction. I am sure that Roosevelt is a smart and hard-working lawyer, but his book simply pales besides Patterson's, which demonstrates what a real pro can create.
In Conviction, Patterson re-introduces the Paget family, who are stalwarts of some of his earlier works: Chris and Terri Peralta Paget are both criminal defense lawyers in San Francisco. The book begins with Terri being assigned as Rennell Price's final lawyer, before he is scheduled to be executed, in approximately two months.
The book is an all-out assault on the death penalty and AEDPA, and even though I am sure I disagree at least somewhat with Patterson on both of those subjects, I found it extremely compelling reading. If you are looking for some good summer reading that will also make you think a little bit (indeed, more than a little bit) than this book will fit the bill.
It's not a perfect book: the manner in which Patterson explains many of the complexities of federal habeas law is to have either Chris or Terri explain them to Carlo, Chris's son who has recently become a lawyer, which makes the discussion seem overly preachy and stilted. And there are references to episodes that took place in earlier books that I had read too long ago to remember clearly; Patterson shouldn't assume even a devoted reader will have read all of his books recently, and ought to refresh our memories a bit.
But, all that said, Patterson tells a good story: Price had been charged with killing a nine-year old girl who died after an episode of horrific sexual abuse. Terri takes Price's case and sets about trying to reverse his death sentence and prove him innocent - or in death penalty parlance, to show his "actual innocence," as opposed to showing simply that he was not given a constitutionally sufficient trial. The book follows the case through the federal courts and to the U.S. Supreme Court. Depicting the inner workings of the judicial system is where Patterson really excels; I didn't clerk on the Supreme Court, nor have I ever argued before it, but my impression from speaking to some who have, and from my reading, was that Patterson portrayed its activities with great accuracy.
Both of Patterson's most recent books, before Conviction, have concerned hot button social issues: abortion and gun control. Both of them really grated on me, as someone who opposed Patterson's positions. This book, however, did not.
Make no mistake, Conviction is also a polemic. There's no question that Patterson wants his readers to close the book as die-hard death penalty opponents. Any book, after all, that opens with Justice Blackmun's famous quote that "I no longer shall tinker with the machinery of death" is not being subtle. And there are times when Patterson goes too far: For example, there are his caricatures of a bow-tied UVA grad clerking on the Supreme Court who wants nothing more than to please his boss, a thinly-veiled Justice Scalia. And there is his portrait of the apparently flawless Caroline Masters, the Chief Justice, whose confirmation hearings were the subject of an earlier Patterson work. Similarly, Terri and Chris are the avenging angels of whom all death penalty opponents dream; as with Tom Clancy's Jack Ryan, they are so virtuous that they don't resemble anyone (especially any lawyers) that I actually know.
Even so, Patterson's book is very powerful. I will admit to having finished it just before falling asleep, and that its denouement actually caused me to have some trouble sleeping - a result that my wife would certainly note as virtually unprecedented.
If you have not read Scott Turow's Reversible Errors, I would recommend that as a more nuanced depiction of both the death penalty and human beings than Patterson's. Still, having opened Conviction imagining that I would find it irritating, I will admit that I found Patterson's own conviction and passion impressive.
At the end of the day and in light of recent studies - such as Cass Sunstein's research showing that, perhaps, there may be a significant deterrent effect from the death penalty (contrary to what has long been the conventional wisdom on the subject) -- my conclusion is that we should at least attempt to tinker with the machinery of death a bit more, before we abandon it as irredeemably unworkable. Yet Conviction did give me pause - and for a novel, especially, that is a great accomplishment.