| Book Reviews |

The Lincoln Assassination: Crime After Lincoln died, he was carried approval of Lincoln’s assassination suf- and Punishment, Myth and by train to Springfield, Ill., for burial. fered extralegal capital punishment. Memory In the book’s second essay, Richard Thomas P. Turner, in his essay, quotes E. Sloan writes that the “train bearing an Associated Press manager: Edited by Harold Holzer, Craig L. Lincoln’s casket, along with the funeral Symonds, and Frank J. Williams party, traveled 1,600 miles and stopped I heard the crack of a revolver Fordham University Press, New York, NY, 2010. in 10 grief-stricken cities between and a man fell in the center of 259 pages, $27.95. Washington, D.C., and Springfield, the room. His assailant stood per- Illinois, over a 12-day period.” But fectly composed with a smoking Sloan’s essay is about the funeral in revolver in his hand, and justified New York City, which followed the his action by saying: “He said it Re v i e w e d b y He n r y Co h e n casket’s being transferred to a ferry served Lincoln right.” There was at Jersey City, and then conveyed in no arrest, no one would have The introduction to this collection two funeral processions in Manhattan, dared arrest the man. He walked of essays notes that Abraham Lincoln’s from the ferry dock to as far uptown out a hero. I never knew who murder, coming “at the end of a brutal, as 34th Street. The funeral car was led, he was. punishing four-year war, and in the according to the Sloan, citing the New midst of widespread national rejoicing York Times, “by sixteen black horses John Wilkes Booth was killed 12 at the restoration of piece, … seemed shrouded in black and sixteen African- days after he shot Lincoln. Eight of so gratuitous, so irrational, and so American grooms,” or, according to a his alleged co-conspirators were sub- utterly un-American that it defied logic. description in the caption of a picture sequently tried and convicted by a …” The nine essays in The Lincoln accompanying the essay, “by 16 gray military tribunal consisting of nine mili- Assassination—all of them excellent— horses richly caparisoned with ostrich tary officers, only one of whom was a explore, in the words of the introduc- plumes and cloth of black trimmed lawyer. Four of the defendants were tion, “the legal, cultural, political, and with silver bullion.” Sloan reports that condemned to the gallows, and four to even emotional consequences of the “[a]t least half a million people wit- prison terms. As this book’s essays by assassination.” nessed the solemn Lincoln funeral pro- Frank J. Williams, Edward Steers Jr., and The first essay in the book, which cession in New York, more than in any Richard Nelson Current all relate, five of is by two of the book’s editors (Harold other city. Approximately 100,000 men the nine officers on the military tribu- Holzer and Frank J. Williams), is titled, marched in it. Between 110,000 and nal recommended that the one female “Lincoln’s Deathbed in Art and Memory: 120,000 people gazed upon Lincoln’s defendant, Mary Surratt, be granted The ‘Rubber Room’ Phenomenon.” face at City Hall.” clemency, but she was hanged after After Lincoln was shot at Ford’s Theatre In “Not Everybody Mourned the chief prosecutor, Judge Advocate on Apr. 14, 1865, six days after General Lincoln’s Death,” Thomas P. Lowry General Joseph Holt (the subject of Lee’s surrender at Appomattox, he was tells of soldiers, sailors, and a few civil- a biographical essay in this book by carried across the street to the Petersen ians who were prosecuted for having Elizabeth D. Leonard), apparently con- boarding house, where he was placed expressed approval of the assassina- cealed the clemency recommendation on a bed in a small room, which may tion. Many of those he cites received a from President Andrew Johnson. be viewed by tourists today. Lincoln year or two in prison, but two received Frank J. Williams writes: died the next morning. Beginning less 10-year sentences. One of the two than two weeks later, lithographs of the had said, “I wish he had been killed Whether it was politically astute deathbed scene began to be produced long ago”; the other had said, “I’m to try the conspirators before a as memorials and for profit. Holzer and glad the old son of a b[----] is dead.” military commission or whether Williams’ essay reproduces more than James Walker of the 8th California the conspirators received fair tri- a dozen of these, and shows how, in Infantry combined these two senti- als before the commission, which the successive pictures, the deathbed ments, saying, “Abraham Lincoln was a they did not, is not the issue room grew larger and larger—thus, the long-sided Yankee son of a b[----] and here. The question is whether “rubber room” phenomenon—until one ought to have been killed long ago.” the United States had the legal such picture portrayed 47 people in the For this, Lowry writes, Walker was right to try the conspirators [who room—far more than could have fit in sentenced to be shot by a firing squad, were civilians] before a military it at one time. But accuracy was not the but, after claiming that, “[w]hile serving commission in the first place. concern; symbolism was. For exam- in Mexico I was wounded in the head ple, although Vice President Andrew by a musket ball, and when I drink to Williams addresses that question, as Johnson had not been at the scene, he excess I have no recollection of what well as the same question as it applies had to be included in the picture to transpires,” his sentence was mitigat- today to the prisoners at Guantánamo symbolize the peaceful succession in ed—Lowry does not say to what. the face of crisis. Another man who expressed reviews continued on page 50

August 2010 | The Federal Lawyer | 49 reviews continued from page 49

Bay. The temptation to compare the on the eight defendants on trial. were “very intelligent” or had served the situation in 1865 with that of today Michael W. Kauffman, in his essay in Union cause as soldiers. This was in fact must have been hard to resist, but The Lincoln Assassination, warns that Lincoln’s inclination, as he stated in his Williams should have resisted. He does the 5,010 handwritten pages of testimo- final speech, on Apr. 11, 1865. not have the space in an essay about ny from the 371 witnesses at the trial of Current then discusses some legends the Lincoln assassination to address the eight alleged conspirators constitute that grew up around the assassination, the current situation in the depth it an unreliable source of information for such as that Booth really escaped, and requires; the circumstances today are historians. This is because of the restric- that Booth had high-placed abettors continually changing; and, finally, tive rules of evidence favoring the pros- in the assassination scheme, including present-day politics unavoidably come ecution that were in place in 1865. The Jefferson Davis, Andrew Johnson, and into play. Williams writes, for example, rule on “defendant declarations,” for Secretary of War Edwin M. Stanton. that President Obama’s reversal of “his example, precluded out-of-court state- Current writes: original determination to end the mili- ments of the accused from being used tary commissions was an act of politi- in his own defense or against anyone Whatever help Booth had, the cal courage. Surely the president … but himself. Another rule restricted the crazy actor surely was the prime knew the ire such a decision would defense from introducing any evidence mover of his crazy plot. Its shape draw—especially from his most ardent except in response to evidence that the reveals the workings of his dis- campaign supporters.” This statement prosecution had introduced. This rule eased mind. The deed must be opens up Williams to the argument was so restrictive that, after a prosecu- done in the theater, before the that perhaps President Obama was not tion witness testified that two of the eyes of a crowd, because the particularly concerned about his most defendants had met with John Wilkes actor had to have an audience. ardent campaign supporters, because Booth on Jan. 15, the defense was not The theater was not a logical he knows that they have nowhere else permitted to bring in a witness to testify place, or would not have been to turn. Perhaps, instead, Obama was that the meeting actually took place on for an assassin whose sole con- concerned to immunize himself from Dec. 23; this was because the prosecu- cern was to kill and flee. charges from the right that he is soft on tion had not introduced evidence about terrorism. It would have been better not a meeting on Dec. 23. As a result, the Current concludes by discussing to have opened this can of worms in a trial transcript makes it appear as if the how the fact that Booth shot Lincoln book about the Lincoln assassination. defense denied that any meeting at all on Good Friday, the day that Jesus Why were the eight alleged conspir- had occurred. was crucified, has led to parallels ators tried by a military commission, The final essay in The Lincoln between the two martyrs frequently even though they were civilians? In his Assassination is the only one that is being drawn. essay, Edward Steers Jr. notes that the not new. It is a chapter from Richard The essays in The Lincoln government hoped to prove “that John Nelson Current’s 1958 book, The Lincoln Assassination (except for the final one) Wilkes Booth had been the tool of a Nobody Knows, and opens by imagining were all initially presented at a 2005 larger conspiracy whose perpetrators that Lincoln was not assassinated but symposium of The Lincoln Forum, an were the leaders of Confederacy.” The served a second term and died of illness assembly of students and scholars that government thus viewed the assassina- in 1881. Current suggests that, in his meets every November at Gettysburg tion as a continuation of the Civil War. second term, Lincoln would have held to discuss Lincoln’s life. Its website is Furthermore, the District of Columbia— the nation together by his willingness to thelincolnforum.org. TFL the site of the assassination and the compromise. For example, in Current’s trial—was still operating under martial imaginary history, Lincoln would not Henry Cohen is the book review editor law, and, Steers writes, “many of its accept the Radical Republicans’ proposal of The Federal Lawyer. residents actively worked in support of that, to hold political office, Southerners the Confederacy.” It seems reasonable, be made to swear that they had never Confidence Game: How a Hedge Steers suggests, that the possibility of supported the rebellion. (This so-called Fund Manager Called Wall jury nullification was uppermost in “ironclad oath” actually became law but Street’s Bluff the mind of Secretary of War Edwin was struck down by the Supreme Court M. Stanton when he decided to try the in 1866 and 1867.) Current imagines, By Christine S. Richard accused before a military commission. however, that Lincoln did sign legis- John Wiley & Sons, Hoboken. NJ, 2010. Steers reports that, when prosecu- lation (the actual Reconstruction Act 336 pages, $27.95. tion testimony as to meetings between of 1867, which Congress passed over Booth and other conspirators with President Andrew Johnson’s veto) that Jefferson Davis and other Confederate the Radical Republicans had sponsored Re v i e w e d b y Chr i s t o p h e r C. Fa i l l e leaders was exposed as fabricated, the to give the vote to all African-American government abandoned its efforts to men—this despite Lincoln’s own incli- In April 1960, New York Gov. prove a larger conspiracy, and focused nation to limit the vote to those who Nelson Rockefeller signed a bill that

50 | The Federal Lawyer | August 2010 created the New York State Housing us that the bond insurance indus- tals are essential, not all hospitals are Finance Agency (HFA). The HFA was try grew up in Mitchell’s shadow. essential.” AHERF was not too big to provided with a capital reserve fund Although “bond insurance,” as the fail, and MBIA was on the hook for obtained through rents and other oper- name suggests, typically provides an $320 million. ating income; the sole purpose of the extra level of security to the buyer of But this is why insurance compa- fund was to secure the HFA’s bonds. bonds—that is, to investors—it is (for nies exist, right? MBIA must have had On advice from a young private sec- historical reasons that don’t require reserves and made the payout, right? tor attorney with a big future, John discussion) generally marketed to the Or, perhaps, one might suppose, it had Mitchell, the bill also included some issuers. Issuers of bonds get them contracted with a reinsurer, which in novel language about the relationship insured so that they can get triple-A turn would have the reserves. of the fund to the state. It did not say ratings from the credit rating agencies. Actually, MBIA borrowed the money that the fund was to be backed by the The “moral obligation” bonds provided to pay out on AHERF’s bonds. Yes, it full faith and credit of the state of New a marvelous marketing opportunity to borrowed the money from three rein- York. But it did say that, if HFA execu- one segment of the bond insurance surers (AXA Re Finance, Converium tives foresaw a shortfall in funds, they industry. After all, if a bond were Reinsurance, and Munich Re)—but were to inform the governor, who was backed by the full faith and credit of it was in fact a loan in each case, to inform the legislature. the state of New York or of the United arranged subsequent to the AHERF It didn’t take much reading between States, then there would be no point bankruptcy. A contract entered into the lines to infer that the governor and to the sale of insurance against the after the referenced event can’t proper- the legislature would be expected to default of that bond—the taxpayers ly be considered insurance (or, in this do something about it if the HFA was would stand behind such a bond. But case) reinsurance against that event. running short of cash and its execu- what if a bond is not formally backed The AHERF finagling, for the pur- tives informed them of the fact. The by the taxpayers but is only implicitly pose of smoothing out the books bonds that the HFA went on to issue, backed by the taxpayers? In such a and preserving what Richard calls a then, had the implicit rather than the case, it seems, there is room for bond “no-risk illusion,” caused a shakeup in explicit support of the state. These insurers, who would do only formally the top posts at MBIA, and one of the have come to be known as “moral what the taxpayers were doing sub- board members, Jay Brown, became its obligation bonds.” Christine Richard, stantively. Given the “moral obliga- new chairman and chief executive. the author of this study of the bond tion” of governments, the issuers could insurance industry and the downfall of purchase this insurance very cheaply, Enter Bill Ackman its central player, quotes Rockefeller, and everybody was happy. Four years later, in 2002, MBIA who, with characteristic enthusiasm, The problem (as we can see quite came under the scrutiny of short seller called the arrangement “the greatest clearly in hindsight) was that the absence Bill Ackman. Ackman issued a research system ever invented.” of risk was an illusion, and that, while report entitled, “Is MBIA Triple-A?” His Richard also quotes an interview certain bond issuers, municipalities, and answer to the titular question was an that Mitchell gave in November 1984 to quasi-public entities marketed this no- emphatic “no.” Ackman didn’t put a bond-industry publication. Mitchell risk illusion to their investors, the insur- together this report because, as a was by this time both a former U.S. ers were marketing it to those issuers caring human being, he wanted to attorney general and an ex-con, but as well as to their own investors. Such warn potential investors away from the he was happy to talk about his good was the business plan—and in time company. He put it together because old days as a lawyer and municipal the problem—of the Municipal Bond he saw an opportunity to make a lot bond guru. The interviewer asked Insurance Association (MBIA), the larg- of money betting on a fall in MBIA’s him whether it is a valid criticism that est of the firms that moved into this stock price, and because, if his report “moral obligation” bonds circumvent market, founded in the early 1970s. attracted a lot of attention, he could the democratic process by allowing MBIA didn’t run into its first seri- accelerate the process. Still, such nega- executives to commit to taxpayer sup- ous trouble until 1998. In that year, tive research is not stock manipulation port of projects with just a wink and the Allegheny Health, Education, and if it sticks to the truth. a nod, rather than with full legisla- Research Foundation (AHERF) found The gist of Ackman’s report was tive approval. Mitchell replied, “That’s itself in impossible straits. When none that MBIA had moved outside of its exactly the purpose of them.” of the affected governmental agencies “traditional business of guaranteeing In early 21st century lingo, we came to its aid, AHERF filed for bank- municipal debt” and had become too might say that the HFA was expected ruptcy protection in Pittsburgh that July. dependent on the trickier markets of to be too big to fail, and the events of The filing cited $1.3 billion in debt. This “structured finance transactions,” but 1960 forecast the credit crunch of 2007 was the largest nonprofit healthcare that the size of its reserves did not and the crash of 2008. Richard’s book institution ever to enter bankruptcy. reflect the change. The no-risk illusion helps us connect some of these dots. What happened to the moral obliga- had fooled the illusionists. The report tion behind AHERF’s bonds? Richard combined this operational critique with The Bond Insurance Industry quotes an MBIA official thus: “We did At heart, Confidence Game reminds not understand that while most hospi- reviews continued on page 52

August 2010 | The Federal Lawyer | 51 reviews continued from page 51 some accounting issues and concluded: that Spitzer had been linked to a pros- after all. Rockefeller wanted to lever- “In sum, we believe that the combina- titution ring. Of this Richard writes, age private capital to build affordable tion of accelerated revenue recognition “It seemed almost certain that with- housing. Mitchell’s language about the of guarantee and advisory fees, the out Spitzer’s prompting, Ambac would HFA’s informing the governor of poten- company’s immaterial levels of reserves, have lost its triple-A rating. What if the tial shortfalls allowed him to do this. and its deferral of a substantial portion bond insurers required more help in The new type of bond that was created of the company’s operating expenses the future? There was at least one way seemed to provide, for certain insur- cause MBIA’s [officially booked] earn- to trade the news of Spitzer’s downfall, ance entrepreneurs, a no-lose business ings to overstate significantly the com- and that was to sell the bond insurers. opportunity. Yet the businesses that pany’s true economic earnings.” … Relief had been short lived.” It was emerged from that safe harbor sailed It took years, but the stock-price widely expected that these two com- out from it to take on many other, collapse on which Ackman had bet panies could not sustain themselves if unsheltered, risks. In time, as these risks finally came. The AHERF matter, and they could not keep their own credit were realized, one of the components of others, became common knowledge rating top-notch. Of what value is the great credit crunch and Wall Street and in combined form such stories bond insurance—in essence, solvency crises of 2007–2008 came into play. hurt MBIA’s once-sterling reputation. insurance—from a company whose Good intentions are no protection Further, the whole business model own solvency is subject to question? against lousy results. TFL came into question. Its insurance was In May, Moody’s, one of the credit- acting as a seal of approval for a lot of rating agencies upon which MBIA’s tri- Christopher Faille, a member of the dubious economic instruments, help- ple-A rating most depended, increased Connecticut bar since 1982, writes on ing to generate bubbles in such instru- its projections for losses on home a variety of financial issues, and is the ments. As disillusion with those instru- equity loans. MBIA had backed nearly co-author, with David O’Connor, of a ments finally arose, so did suspicion $19 billion of these securities. user-friendly guide to Basic Economic of the insurer. In late 2007, the share On June 4, Moody’s took another Principles (2000). price of MBIA nose-dived from above step, announcing that it was actively $60 to below $20 in about 10 weeks. reviewing the credit profile of both New York’s Poop Scoop Law: The price of MBIA’s co-leader in the MBIA and Ambac and warning that Dogs, the Dirt, and Due Process small bond-insurance world, Ambac MBIA’s rating might go as low as Financial Group, dived likewise. single-A. When Moody’s made this By Michael Brandow announcement, Ackman was at his Purdue University Press, West Lafayette, IN, Locking in Profits grandmother’s 90th birthday party, 2008. 349 pages, $ 29.95. Our narrative began with one former madly communicating with associates governor of New York and now we by Blackberry, instructing them to have arrived at another. Early in 2008, liquidate his fund’s short positions on Re v i e w e d b y Jo n M. Sa n d s then Gov. Eliot Spitzer became involved MBIA, thereby locking in huge profits. in a frantic and complicated effort to The boom fell on Thursday, June “It shall be the duty of each dog prop up the bond insurers, because 19, when Moody’s downgraded MBIA owner,” reads New York Health Law they were both regulated by his state’s and Ambac. Amazingly enough, the § 1310, “to remove any feces left by his Insurance Department and because he two bond insurers survived. They are dog on any sidewalk, gutter, street, or feared grave systemic danger should smaller and chastened, but they live other public area.” This language, from MBIA and Ambac simply disappear. on in 2010. what is known as the “poop scoop Shortly after midnight on Feb. 14 law,” made it mandatory for dog own- (Valentine’s Day), Spitzer left Room A Moral to the Story ers to bend over and pick up or scoop 871 at the Mayflower Hotel, where he So that’s our story. It has every- up their dogs’ excrement. Enacted in had had an assignation with a high- thing: two controversial governors, a 1977 at the state level, this code sought priced call girl, an arrangement known Watergate connection, and a touch to clean up an ongoing health prob- to the Federal Bureau of Investigation. of sex. Is there a moral to this story? lem, quality-of-life issue, and just plain The following morning, Spitzer testi- Something tight and Aesopian? mess. It was a subject that set neighbor fied at a hearing of a committee of the Richard is innocent of any responsi- against neighbor, unleashed vehement U.S. House of Representatives about bility for my own conclusion, but here it emotions, caused local politicians to bond insurance. is: I see this story as a lesson in one of run for cover (or, more accurately, step His efforts of that period helped the ways in which reasonable-sounding gingerly), and filled the pages of news- stabilize the market price of both government policies go wrong and papers. It was a law that police, who Ambac and MBIA. The stock charts for prove to have, in the course of time, grumbled, were ordered to enforce. each company show a plateau there. utterly unreasonable results. The rea- And it was a law that soon became But, on March 11, 2008, the New York sons for the creation of the New York a model for innumerable municipal Times’ Web site ran a story that said HFA all surely sounded reasonable, ordinances across the country. Michael

52 | The Federal Lawyer | August 2010 Brandow writes the definitive account Into this mess stepped various activ- Animal Control Services), to get the bill of how to teach old dog owners new ists, who railed against the mounting passed at the state level. The politicians tricks: Persevere enough to enact a waste. Some activists clamored for who sponsored the legislation were statute and follow it with discipline a total ban on dogs (no, it was not opposed by dog owners and various through law enforcement and the treat supported by all cat owners). Others humane societies and animal rights of carefree strolling. New York’s Poop sought to have federal authorities groups. The state legislature—which Scoop Law describes how a real civic assume responsibility, turning to the included a hearty anti-New York City problem was brought to heel. U.S. Environmental Protection Agency. sentiment—narrowly passed the law, What importance can a history of Judging by local accounts, some neigh- but made it applicable only to cities the poop scoop law have? Considerable borhoods formed vigilante groups to with a population of 400,000 or more, importance when one thinks of its con- patrol the streets, harassing dog own- which, besides New York City, then sequences. Brandow’s history of the ers who failed to curb their dogs and, included only Buffalo. The hero of the poop scoop law is a mutt of a book: in some instances, blaming innocent account was the newly elected Mayor part sociological study, part urban his- dog owners for deposits left by others. Koch, who told state politicians that, if tory, part guide for community orga- Brandow quotes city residents who the bill passed, he would enforce it— nizing, and part legal history. It has recall the days of changing their shoes and he did. heroes, cowards, politicians stepping before entering homes or offices, and Koch, to his credit, began issu- in it (literally), and dog owners flinging of how parks and walks became fecal ing summonses to dog owners. The it (figuratively and literally). It presents minefields. The stench rose from the fine was $25 (now higher), and Koch a portrait of New York City life in the sidewalks in the dog days of August. disclosed the number of violations late 1970s, seen from the sidewalk up. And the police ignored the problem. monthly. In the first year, there were Brandow writes as a community activist It would take the efforts of three nearly 5,000 citations. The book has who was involved in the campaign to mayors—John Lindsay, Abe Beame, humorous descriptions of investiga- pass the law. He seems to have attend- and Ed Koch—along with a state sena- tions, trials, and excuses. Koch made ed every local neighborhood meeting, tor and an assemblyman, who grew enforcement a priority, and he got read every letter to the editor (at a tired of tracking feces everywhere, to results. Sure, the police growled, and time when there were a lot of newspa- enact a law that made owners respon- there was civil disobedience. Humane pers), and captured all the twists and sible not only for curbing their pets but societies predicted widespread aban- turns of passing controversial legisla- also for actually removing the waste. donment of dogs, which did not come tion sponsored by fervent advocates John Lindsay had begun the effort, ask- to pass. Elderly groups stood up to and opposed just as strenuously, with ing that owners train their dogs to def- warn of a rise in back problems from each side clamoring that the fate of city ecate on newspapers (an editorial com- having to stoop and scoop. No such life was at stake. Brandow’s product ment?) in their apartments and homes. increase occurred. Lawsuits were resembles a shaggy dog story—overly That proposal went nowhere—Lindsay filed; one of the more incredible suits long—but his dogged approach results was barking up the wrong tree. Abe alleged a violation of religious free- in a doggone thorough account. Beame sidestepped the issue, ordering dom, citing the requirement of picking The 1970s saw many problems beset- study after study, in the face of grow- up feces on the Sabbath. One Jewish ting big cities, especially New York City. ing coalitions beseeching the New York group compared the ordinance to the Crime, racial tensions, lost jobs, “white City Council to get something done. Nazis’ Nuremburg laws. Other lawsuits flight,” and so-called improved urban However, the City Council was unwill- attacked the statute’s lack of an intent redevelopment all affected city life. ing to touch the issue, believing, prob- requirement and its strict liability. All Strangely, or maybe not so strangely, ably rightfully, that the distemper of came to naught. But enforcement, one of the most contentious of these dog owners would not only put them coupled with a widespread public problems—seriously—was dogs. There in the doghouse, but would likely lead education program, resulted in the was a proliferation of dogs in the city. to their being scooped out of office. law’s being accepted. It seemed that those who stayed in the The City Council allowed the tail to The law also fetched unexpected city had to have their dogs. It was esti- wag the dog, as opponents of the poop benefits. The creativity of inventors led mated that, in the 1970s, over half a mil- scoop law barked that handling feces to a boom in patent applications. Instead lion pounds of canine feces were being was disgusting, humiliating, and pre- of better mousetraps, inventors turned deposited—daily. People were stepping sented a public health risk. Movement to better pooper scoopers. New security over dog crap whenever they ventured came when a coalition of community devices sought to tame the threat of out. There seemed to be no way to stop activists, such as the Coalition for Dog domestic terriers. Brandow humorously the piles from piling up. An old ordi- Control, joined forces with local block describes some of the more outlandish nance, forbidding the depositing of any associations that wanted to protect contraptions. Seen any handheld, per- “offensive animal matter” referenced patches of green park and flower sonal flame-throwers incinerating dog only slaughterhouse offal and carrion beds, and also with increasingly con- waste on your morning walks lately? and had been stretched to become a cerned providers of municipal services Thirty-three years (231 dog years) “curb law” that no one enforced, much (including the New York City Sanitation less followed. Department, Police Department, and reviews continued on page 54

August 2010 | The Federal Lawyer | 53 reviews continued from page 53 have passed, and the ordinance can be in the Age of Jackson, “were arguably of the Tocqueville clan had lost their judged a success. Indeed, other cities the richest in American life, if we view heads to the democratic movement’s rushed to emulate the New York law. the whole picture of society, poli- guillotine, and the dawn of the 1830s The Chicago City Council, for example, tics, and culture.” During these years, once again brought ominous skies. asked its legal department to draft a the United States, having survived its In seeking shelter in America, similar bill. The council was informed extremely difficult birth, was spread- however, Tocqueville also hoped to that Chicago already had such a law ing its democratic wings to ascend in learn from the world’s only successful on its books, but that it was not being various fields—from science to busi- democracy. Given his family history, enforced. The lesson taken is that the ness to agriculture. Despite this bustling Tocqueville had come to believe not ordinance must have the support of activity, most Europeans of the period only that the rise of democracy in the executive, must be enforced, and viewed America as a strange backwater; Europe was inevitable, but also that the must be accompanied by an education from Trollope to Dickens, visitors from Old World powers had no idea how offensive. Cleaning up after one’s dog the Old World found little in America to to make the transition to democracy must be viewed as a civic responsibil- admire and much to deride. work. Tocqueville was an aristocrat ity with which one is expected to com- In 1831–1832, however, the who knew that aristocracy was dying; ply; to ignore one’s dog’s dumping on Frenchman , he feared democracy but accepted its the sidewalk must be seen as violation together with his companion, Gustave ascension as inevitable. Put simply, of the social code. The pressure that de Beaumont, traveled across Tocqueville looked at America not with results from this is the most effective Jacksonian America in order to learn an admiring eye, but with a desperate enforcement mechanism. Indeed, there from its citizens how to save the Old one. To keep his beloved Old World appears to be some backsliding in World. Based on his observations dur- from consuming itself in the flames New York City and elsewhere (in East ing these travels, Tocqueville wrote his of revolution, he looked to the New Hampton, Long Island, for example, as masterwork, World—the one place that appeared to reported in the New York Times on June (published in two volumes in 1835 and thrive in the chaos of democracy. 11, 2010). Rather than angry letters to 1840), destined to be widely quoted for Tocqueville was able to look past the editors, local Web postings com- the next 175 years but, despite its bril- Americans’ coarseness and lack of plain about inconsiderate dog owners liance, rarely read. manners that so bothered other visi- and name names (or at least breeds). In his new work, Tocqueville’s tors to the United States. Damrosch There is even a service that affords one Discovery of America, interestingly attributes this ability in to match the DNA from fecal remains offers a sort of traveler’s guide to part to the fact that Tocqueville was with the individual dog and its guilty Tocqueville’s classic, connecting some not skilled enough in English for owner. That seems a bit rabid. of Democracy in America’s most the American way of speaking to After reading this book, I took my memorable passages to specific points burn his aristocratic ears. However, if dog for a walk in a park near my on Tocqueville’s itinerary. Damrosch Tocqueville’s facility with American home. I stopped and read the sign that offers introductions to several topics: a English was not masterful initially, admonishes dog owners and custodi- portrait of Jacksonian America, though he had every opportunity to rectify ans (a nice legal touch) to clean up not a particularly penetrating one; an that. Almost from the moment they after their pets. The sign’s fine print excavation of Democracy in America’s first arrived in America, Tocqueville lists the relevant ordinance and the origins, though not a particularly deep and Beaumont were in demand on penalties for violators. I made sure I one; and a look at Tocqueville the the social circuit. Americans were had my plastic bags with me. TFL man, though not a particularly search- not accustomed to being studied by ing one. Still, both long-time students Europeans, and so this supposed pris- Jon M. Sands is the federal public de- of Tocqueville and those who have on study became a source of national fender for the District of Arizona. He yet to read a page of Democracy in pride. As a result, Damrosch illustrates, has a golden retriever. America will find plenty in Damrosch’s the two Frenchmen enjoyed audiences book to admire and, I hope, to spur with many prominent Americans— Tocqueville’s Discovery of America them to dig deeper. from John Quincy Adams to Andrew Ostensibly, Tocqueville and Jackson. By Leo Damrosch Beaumont traveled to America to study Tocqueville’s first major stop was Farrar, Straus and Giroux, New York, NY, 2010. the young republic’s prison system. New York City, and there he formed 304 pages, $27.00. In reality, however, they were seek- several impressions about Americans ing a temporary escape from the lat- that would continue to surface through- est in a series of political storms that out his trip: they loved money too Re v i e w e d b y Na t h a n Br o o k s periodically rocked France and, more much, their women were frustratingly “The years 1815 through 1848,” specifically, Tocqueville’s aristocratic chaste, and the entire nation seemed writes historian David S. Reynolds in his family. Several times in the previous to be made up of the middle class. recent book, Waking Giant: America decades, Damrosch notes, members Here Damrosch shows us some of the

54 | The Federal Lawyer | August 2010 faults in Tocqueville’s method, as he course to Boston, and what they upon this apparently shaky founda- sometimes overgeneralized, extrapolat- found there challenged some of their tion, he formed what is still the single ing large-scale pictures from relatively notions regarding the pervasiveness most enduring study of the American limited fields of view. As Damrosch of equality in the United States. The character ever produced. To be sure, points out, New York City was not the most European and aristocratic city in Tocqueville got plenty wrong, and the hotbed of equality of conditions that Jacksonian America, Boston presented nation has changed in innumerable Tocqueville described; on the contrary, Tocqueville with a valuable opportu- ways since his travels. Still, Tocqueville its wealth was concentrated in the nity to see the interaction of demo- was the perfect person writing at the hands of a small group of incredibly cratic and aristocratic ideals, which perfect moment in the perfect place. wealthy families. was of such importance to his purpose As an aristocrat, he naturally looked at Once out of the big city, Tocqueville of saving the Old World. In Boston, democracy with a skeptic’s eye, but he and his companion headed upstate, Tocqueville conversed with John was smart enough to see the inevitable catching the first of many glimpses of Quincy Adams and—perhaps most rise of democracy in the Old World, the weird and wild side of Jacksonian significantly—. According and the value that America offered as America. The tradition of religious to Damrosh, it was Sparks who plant- a subject for studying it. freedom had spread west, and the two ed the seed in Tocqueville’s mind that Damrosch’s book will not replace travelers saw dancing Shakers, religious the American faith in majority thought ’s much more revivals, and other signs of evangelical could have dangerous consequences; detailed 1938 tome, Tocqueville in fervor throughout the frontier. But Tocqueville later built on this idea for America, as the definitive study of modernity was spreading west as well his famous discourse on the tyranny of Tocqueville’s travels, but that does and, as Damrosch notes, Tocqueville the majority in democratic societies. not appear to have been Damrosch’s was surprised to see the land of The Tocqueville soon made his way intent. Damrosch has created a shorter, Last of the Mohicans cleared for crops, back west, where frontier Ohio—a vir- more accessible work that celebrates roads, and development. Eventually tual laboratory of democracy—seems an underappreciated time period and reaching the outpost of Detroit and to have had a significant effect on his an under-read classic, both of which beyond, he found the rustic forest set- thinking about America. The pages offer invaluable insight into who we tings he had read about, but the appar- in which Damrosch describes this are are today as a nation. TFL ent war being waged on the forest had some of the best in his book. Damrosch a lasting effect on the two Frenchmen, notes, “This is what Tocqueville had Nathan Brooks is an assistant district Beaumont in particular. been waiting for: a region with hard- attorney in North Carolina and a mem- Of course, much of the forest was ly any past in dizzying transition, ber of the editorial board of The Fed- being cleared for agriculture, and inventing itself with ferocious energy.” eral Lawyer. Tocqueville had many opportunities to Tocqueville was witnessing the best meet American farmers. Far from the about America just before he headed Last Words of the Executed blue-collar yokels he was expecting, south to see the worst. the farmers he met were opportunis- Tocqueville’s thoughts on race in By Robert K. Elder, foreword by Studs tic and surprisingly cultured. They America remain some of the most Terkel were savvy capitalists and speculators, thought-provoking on this topic, and University of Chicago Press, Chicago, IL, 2010. Tocqueville observed, and furnished Damrosch does an excellent job of 301 pages, $22.50. prime examples, which would per- placing these thoughts in context. vade Democracy in America, of the Tocqueville’s whirlwind journey south American love of money. In the farm- came shortly after Nat Turner’s rebel- Re v i e w e d b y Jo n M. Sa n d s ers Tocqueville also saw what would lion and the nullification crisis arising become another recurring theme of from South Carolina’s 1832 Ordinance On May 13, 2010, Ohio Department his great work: the uniformity of of Nullification. These were both defin- of Corrections prison guards strapped thought exhibited by Americans. In ing episodes for the slave-holding Michael Beuke, a client represented by Tocqueville’s eyes, every American Southern states, where tensions were my office, to a gurney in preparation spoke the same language, shared the high. Tocqueville also came into con- for his execution. In 1983, Beuke had same mores, and espoused the same tact with Choctaw Indians traveling the been sentenced to death for murdering egalitarian ideals. Damrosch right- Trail of Tears after the Indian Removal a driver who had stopped to pick him ly points out that the future waves Act. Despite his short time in the up; Beuke had also shot two other vic- of immigration would change this Southern states, Tocqueville saw and tims, who survived. Despite evidence of dynamic, but clearly Tocqueville had heard enough to draw conclusions— organic brain damage and drug abuse glimpsed one of the United States’ both tragic and prescient—that are still at the time he committed his crimes, most enduring qualities: the ability to studied today. Beuke, long rehabilitated, had seen his assimilate varied peoples under the By the time Tocqueville returned last legal challenges end and clemency fold of a few unifying ideals. to New York City to set sail for home, denied. It was 10 o’clock in the morn- After seeing the wilderness, he had spent only a little more than Tocqueville and Beaumont reversed nine months in the United States. But reviews continued on page 56

August 2010 | The Federal Lawyer | 55 reviews continued from page 55 ing. The warden asked him if he had punishment among Western countries. familiar, it should be recalled that any last words. Beuke turned to the The last words of the condemned Herrera’s lawyers had found evidence tinted windows from which witnesses, respond, in a sense, to the muted mur- and produced affidavits that it was his victims, his representatives, and lawyers, der victims; there is no collection of last brother, not he, who had murdered peered out. He apologized to the victims words of the victims of the condemned. two police officers. It was this case in and, with the warden holding a micro- This must be acknowledged. The peo- which the U.S. Supreme Court held phone, he began to recite the Catholic ple killed, many—in the language of that an “actual innocence” claim did rosary. He ended 17 minutes later, at the legal aggravator that allows a death not warrant a federal habeas hearing. which time the lethal injection proce- sentence—heinously, cruelly, and with Justice Scalia recently wrote again dure began. Michael Beuke died shortly deprivation, died gasping, gurgling, or that the Constitution does not bar the thereafter. There is now talk of limiting screaming. They had no recorded last execution of an innocent person. the time allowed for last words.1 words, or chance to prepare, and died Innocence of the condemned, “Depend upon it, Sir, when a man without a valediction. though, is rare. But what about last knows he is to be hanged in a fort- Last Words of the Executed has sev- statements that show a person’s capac- night, it concentrates his mind wonder- eral recurrent themes. Many of the ity for change? The death penalty is, fully.” When made that condemned ask for forgiveness and by its final nature, a punishment of observation in 1777, the tradition of last accept responsibility. Newfound faith is retribution. Its harsh judgment states words was already a rite of capital pun- a frequent refrain. The flowery language unequivocally that blood will have ishment. One’s last words, when one is of the 19th century gives way to terse blood. To this retribution, Napoleon facing execution, have a special weight. statements in the 21st century, and the Beazley’s response speaks for many: These words were once loudly uttered earlier references to Providence and “The act I committed to put me here on the scaffold to the gathered crowd; God give way to more personal pleas was not just heinous, it was senseless. now they are whispered on a gurney to to Jesus. Faith becomes a testament in But the person who committed that act select witnesses behind tinted, one-way the waning seconds of life. But there is is no longer here—I am. ... Give those glass. One’s last words can be contrite, anger too. “I hate your guts,” spits one men a chance to do what’s right. Give consoling, or confessional. They may prisoner to the warden. “Kiss my ass,” them a chance to undo their wrongs. A be angry, defiant, or simply nonsensi- seethes another. Their anger is with lot of them want to fix the mess they cal. Inscribing the words was and is the system and with racism too. The started, but don’t know how. The prob- considered significant. Last Words of last words of African-Americans, espe- lem is not in that people aren’t willing the Executed is a book of quotations, cially in the South, give the lie to the to help them find out, but in the system which Robert K. Elder has assembled, Supreme Court’s shrug in McClesky that, telling them it won’t matter anyway. No poignantly, as a “riting” of wrongs. although race is statistically relevant, it one wins tonight. No one gets closure. Elder’s collection of last words is, in the end, not addressable. There No one walks away victorious.” dates from 1659 and begins with one is also the pragmatic acceptance of the Elder is a journalism professor Marmaduke Stevenson, who, before inevitable, from “I guess there will be responsible for proving the innocence being hanged for the crime of disobey- no call [granting a reprieve]” to “let’s of several death row inmates through ing his banishment from Boston for go.” There is comic pathos as a few of his investigative reporting. Yet he preaching as a Quaker, declares that the condemned, in their last moments, states that he intends his book not to he is being punished for the sake of ask, “How about the Dallas Cowboys?,” make an abolitionist statement. He fails “conscience” and that he is at “rest with or “Go Raiders,”2 or a Hail Mary pass: in this regard. The mere collection of the Lord.” The book ends with Michael “When the Browns are in the Super the words gives voice to opposition to DeLozier, executed on July 9, 2009, in Bowl in the next five years, you’ll know the death penalty. By collecting these Oklahoma, apologizing for the pain he I am up there working my magic.” This last words, Elder has transformed the caused, and hoping that his death will last statement was uttered in April 2007, speakers from inmates whose sen- bring “some peace.” In the 300 pages so there are two seasons to go to see if tences have been lawfully carried out between these two quotations, arranged his prediction comes to pass. to human beings whom, rightly or in chapters according to the method of The statements that challenge our wrongly, the state has put to death. execution—noose, firing squad, electric present system most profoundly are One is reminded of the man walking to chair, gas chamber, and lethal injec- those of the condemned, who, at the gallows whom Orwell describes in tion—Elder quotes the condemned’s death’s door, declare their innocence. his essay, “A Hanging”: “[H]e stepped words, spoken and written, along with Leonel Herrera can stand for a chorus: slightly aside to avoid a puddle on the a brief explanation of the condemned’s “I am innocent, innocent, innocent. path. It is curious, but till that moment crimes and context. The book’s tone Make no mistake about this: I owe I had never realized what it means strives to be neutral as to the death society nothing. Continue the struggle to destroy a healthy, conscious man. penalty, but the quotations, directed to for human rights. I am an innocent When I saw the prisoner step aside to witnesses, victims, and family, speak man, and something very wrong is tak- out against this increasingly singular ing place tonight.” If the name sounds reviews continued on page 59

56 | The Federal Lawyer | August 2010 Hillary A. Stern Phyllis O. Tousey Lisa S. Wahlin Benjamin J. Wilensky Hui-Ju Wu Elwood C. Stevens Michael L. Turrill Holly B. Wardell David G. Wilhelm Gregory C. York Catherine M. Stockwell Kevin Ueland Steve R. Warren Thomas H. Wilkins Christine M. Young Karen V. Sullivan Virginia T. Vance Asma J. Warsi-Chaudry James W. Williams Cole M. Young Laszlo M. Szabo Mark L. Vavreck Kevin K. Washburn Jeremy S. Williams Susan C. Yu Mary Katherine Taylor Chris P. Villemarette Victoria L. Weatherford Samuel L. Winder F. Lachicotte Zemp Michael J. Thomas Charles M. Viser Jennifer B. Wells Richard R. Winter Kevin Zolot Orlando J. Torres Jonathan Vogel Frederick Wen Carrie A. Wozniak Osiris Torres Scott A. Wagner Bruce E. Wickline Robert T. Wright

REVIEWS continued from page 56 avoid the puddle I saw the mystery, the what they thought they heard, or what the times, the attorney general of Utah unspeakable wrongness, of cutting a witnesses later recounted. And, although used his Twitter account to get his own life short when it was in full tide.” we all think there is a right to last words, last words in, tweeting on his iPhone Elder’s collection of last words cannot it is a gift of the state. Pennsylvania, for that he, the attorney general, had just be complete. He makes a selection, and example, does not provide for last words given the go ahead to proceed with the in choosing one quotation over another, in its protocol, and neither did Ohio until execution. The five gunmen then fired he makes a political statement. I would several years ago. Some last words can at 12:15 a.m., and Gardner was pro- have rather he had left out overt politi- only be spoken to the warden; others are nounced dead at 12:17 a.m. TFL cal proclamations, ranging from those required to be brief. It is strange to read of Nathan Hale and Mary Goode (of the that Chaplain Carroll Pickett, who min- Jon M. Sands is the federal public de- Salem witch trials) to Joe Hill and the istered to nearly 100 death row inmates fender for the District of Arizona. more recent declarations of Julius and in the Texas prison system, acting on Ethel Rosenberg and Timothy McVeigh. instructions from the warden, advised Endnotes Such political expressions detract from the condemned that there should be no 1See Kevin F. O’Neill, Muzzling the anonymity of the forgotten. Gettysburg Address (a speech known for Death Row Inmates: Applying the First Elder’s discussions of the methods of its brevity). Pickett’s last charge indeed! Amendment to Regulations that Restrict execution, serving as organizing themes, But last words, like last meals (Beuke a Condemned Prisoner’s Last Words, 33 are insightful. Each method is touted as asked that his be given to a homeless Ar i z . St. L.J. 1159 (2001). humane, and each reflects, in a man- person), have symbolic value. With the 2This admonition was by Robert ner, the era of its use. The changes in advent of the Internet and the abil- Comer, who was executed by the state methods also illustrate the movement ity to collect last words and menus of of Arizona on May 22, 2007. Comer was of execution from a public spectacle last meals, is this collection necessary? a “volunteer” who had sought his exe- to a cloistered procedure, away from Perhaps. It will soon be outdated, not cution. These last words were directed a shielded public. The methods strive because capital punishment will end, as to his counsel, with whom he spent his to be painless, and recent litigation has then the book would have historical and last minutes talking about the National focused on lethal injection. Yet, there social value, but because executions will Football League and of the fact that they are throwbacks. Utah, for example, still continue. There will be no last last words were both fans of the Oakland Raiders. allows execution by firing squad for in the foreseeable future.3 3For interesting aspects of the rites of those convicted prior to 2002, if the Our office represented Ronnie legal executions, see Daniel LaChance, inmate chooses this method. Gardner, who was executed by a Utah Last Words, Last Meals, and Last Stands: In collecting these last words, Elder firing squad on June 18, 2010. His Agency and Individuality in the Modern can rely only so much on what was tran- life ended with no last words. When Execution Process, 32 La w & So c i al scribed. Most last words were the result asked if he had any final words, he In q u i r y 701 (2007). of reporters’ hastily scribbling down said, “I do not, no.” But, as a sign of

COURT continued from page 48 the Court held that the “honest services” ing for the three dissenters on this issue, voir dire in this case. TFL statute applied only to crimes involv- argued that the Court had legislated ing bribery and kickbacks. Therefore, from the bench in its interpretation of Prepared by LII Summer Editors Jeffrey because Skilling and the others had the “honest services” law. Ginsburg also Catalano and Bret Brintzenhofe. In ad- been tried under the statute for other wrote for a majority of five, holding that dition to the cases highlighted above, the crimes, the convictions could not stand. the publicity and community prejudice decisions from the Supreme Court’s en- Justice Ginsburg, writing for a major- did not prevent Skilling from receiving tire 2009–2010 term can be found on ity of six, held that reading the law as a fair trial. Justice Alito wrote a separate the LII’s Supreme Court website: www. covering anything other than bribes and concurrence on the right to an impartial law.cornell.edu/supct/. kickbacks would raise questions of con- jury; Justice Sotomayor dissented on this stitutional vagueness. Justice Scalia, writ- issue, questioning the adequacy of the

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