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Jurist: Books on Law

Time to use those Christmas book tokens on two debut crime novels that cannot fail to impress. Both are billed as successors to Patricia Cornwell. . . .
Marianne Wesson's debut novel, Render Up the Body . . . features a protagonist whose job is that of her author. Colorado-based Cinda, a lawyer, is disillusioned with the District Attorney's office and starts a new career as director of a Rape Crisis Centre. Enter the complications . . .  Cinda's principles are put to the test. . . .As she struggles with legal precedent in an effort to free [her client], she undermines her position at the Centre.
Marianne Wesson keeps a tight grip on the complex threads of her plot. She creates characters whose rounded humanity and moral dilemmas are irresistible. She challenges knee-jerk reactions to the effect of rape on its victims, and she plants those clues right from the start. In short, there's no need to compare this author with Patricia Cornwell. Render Up the Body stands on its own merit as a very fine
achievement.
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When I was finally through grading my last student paper at the beginning of the summer, I began my much-needed vacation by reading Professor Marianne ("Mimi") Wesson's captivating, thought-provoking novel, Render Up the Body. It proved to be not only an entertaining "beach book," whose pages one turns very fast, but also an engaging illumination of legal issues surrounding the death penalty and habeas corpus, whose insights and questions leave a lingering impact long after the last page has been turned upon its highly satisfying (i.e., plausible, but unpredictable) ending.
      I first heard about this "novel of suspense," as it is designated on its title page, thanks to an interview of Professor Wesson (University of Colorado, Law) on National Public Radio, on which she periodically comments about criminal law issues. I was immediately intrigued by the book, Mimi Wesson's first novel, on many levels. First, I admire (and, I admit, envy) any law professor who can write not only scholarly and lawyerly works, but also fiction. Second, I was pleasantly surprised to learn that Wesson, a former prosecutor, had written a novel whose central character is an attorney, also a former prosecutor -- representing a Death Row inmate who has been convicted of rape and murder.  Wesson raises troubling questions about the fairness of the criminal justice process, the enormous discretionary power of prosecutors, the death penalty, and the severe limits on the habeas corpus remedy that one would more likely expect to hear from, well, an ACLU lawyer. To be sure, some leading ACLU lawyers have worked as prosecutors, and Wesson herself has been appellate counsel to a Death Row inmate. In short, one of the most valuable aspects of the book is that its author and its characters defy the stereotypes that are too often imposed upon actors in the criminal justice system.
      High as my expectations about the book were, after hearing the author's engaging NPR interview, they were exceeded by the book itself. It was both more entertaining, and more educational and thought-provoking, than I had hoped. I would have considered it an excellent read just on the basis of its engrossing plot and vivid cast of characters.   Likewise, I would have considered it an eye-opening experience just on the basis of its discussion of important legal issues -- not only about habeas corpus and capital punishment, which are central to the book (as signified by its title, the English translation of habeas corpus) -- but also myriad others, including matters of evidence, lesbian/gay rights, free speech, federalism, and professional responsibility.
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Troubling Legal Issues
      On the level of entertainment, the book spins a suspenseful, intelligent, multi-layered story. It also depicts a colorful array of characters, including a smart, likeable, and relatively complex protagonist, attorney Cinda Hayes. While the personae of Cinda and others are not developed in depth, they are still sufficiently interesting that I hope to learn more about them in future novels.  The most troubling and serious legal issues, at the heart of the novel's dramatic tale, revolve around a central but insufficiently-known aspect of our criminal "justice" system, which most non-lawyers (as well as many lawyers) would consider shocking and unjust. As set out in the Author's Note at the outset of the book, this "feature of the law in most American jurisdictions" is "the unavailability of habeas corpus or any other remedy for those who claim to have been convicted despite their innocence." More shocking still, even if someone has been convicted of a capital crime and is on Death Row awaiting execution, exculpatory evidence, indicating that s/he did not commit the crime, will likely not even trigger any further judicial review, let alone a release.
      Even putting aside substantive questions about the inherent (un)constitutionality, (in)justice, or (im)morality of administering the death penalty at all, procedural questions nevertheless abound about the fairness of the methods for imposing and reviewing capital sentences in the U.S. These questions should be of concern to all conscientious Americans (and, in particular, to all members of the legal profession) including those who support the death penalty as a substantive matter. Indeed, many death penalty proponents are particularly concerned about rectifying the procedural unfairnesses that now plague the administration of capital punishment in the U.S., since they want executions to proceed promptly, but only when the defendants are actually guilty and have had an adequate opportunity to present their defenses. [See, e.g., 141 Cong. Rec. S817 (daily ed. Jan. 11, 1995) (quoting Senator Arlen Spector, a former district attorney who supports the death penalty, criticizing the Supreme Court's refusal to stay an execution of a defendant who had produced evidence of his innocence, and warning against such impositions of the death penalty in "a callous or unreasonable fashion").]
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Death Penalty for the Innocent
     Having debated the most ardent defenders of the death penalty in this country, I have not encountered one who advocated executing individuals who did not actually commit the crime in question.  And yet, that is exactly what is happening in America, thanks to constraints on the availability of habeas corpus relief. [See, e.g., Linda Greenhouse, "Execution Stay Denied Man Who Texas Concedes Did Not Kill," New York Times, Jan. 3, 1995, sec A, p. 13.] Moreover, thanks to recent, politically-driven, developments in the "war on crime" -- including fewer and shorter avenues of appeal, fewer public resources for the representation of indigent defendants, and more capital offenses and prosecutions -- the numbers of innocent people on Death Row will continue to grow.   [See Fox Butterfield, "The Nation: Ambivalence? Incompetence? Fairness?; Behind the Death Row Bottleneck," New York Times, Jan. 25, 1998, Sec. 4, p. 1 ("the number of people on death row nationwide has been growing by an average of 100 to 150 a year, and has reached a record of 3,269").]
      A 1996 report by the U.S. Justice Department itself documents that scores of innocent Americans have been unjustly imprisoned. Even more frighteningly, a 1997 report by the Death Penalty Information Center ("DPIC"), "Innocence and the Death Penalty:  The Increasing Danger of Executing the Innocent," documents 69 cases of innocent people who had been sentenced to death since 1973. Indeed, recent research indicates that there may well be a greater risk of erroneous convictions in capital cases thanin other criminal cases, and that the documented cases of such errors are only the tip of the iceberg. [See Samuel Gross, "The Risks of Death: Why Erroneous Convictions are Common in Capital Cases," 44 Buffalo Law Review 469 (1996).]
     Emphasizing the key, chilling legal fact that animates the plot in Render Up the Body, the DPIC report decries the recent "dramatic narrowing of the opportunity . . . to raise newly discovered evidence of one's innocence," noting that "[s]ome courts have now taken the position that it is permissible for executions to go forward even in the face of considerable doubt about the defendant's guilt."  These rulings contrast starkly with the Model Penal Code, which the Supreme Court cited as an example of an acceptable death penalty law in its 1976 decision holding that some such laws would pass constitutional muster. [Gregg v. Georgia, 428 U.S. 153, 193 (1976).] The Model Penal Code bars the death penalty whenever there is any doubt about the  defendant's guilt. [See sec. 210.6]
     Although the American Bar Association never has opposed the death penalty per se, the ABA has long studied and criticized the implementation of that ultimate, irrevocable penalty, advocating procedural reforms that minimize the risk that innocent persons may be executed. In the face of mounting evidence that death penalty jurisdictions (including the U.S. government) have been implementing procedural "reforms" that moved in the opposite direction, in February, 1997, the ABA concluded that "fundamental due process is now systematically lacking in capital cases." Accordingly, it called for an immediate and indefinite moratorium on any executions until death penalty jurisdictions brought their procedures into full compliance with ABA standards, including the assurance of competent counsel. Of most relevance to the theme of Wesson's novel, the ABA called for "enhancing . . . courts' authority . . . in . . . habeas corpus proceedings."
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Staying Power
     Render Up the Body is the perfect book for a hard-working law professor or student who might feel guilty about taking time off for a purely pleasurable reading experience. While it goes down as delightfully as any frothy, forgettable best seller, it also has real staying power, effectively raising serious questions about our criminal justice system that cannot and should not be forgotten. The book is unlikely to turn a hard-core champion of capital punishment into an abolitionist, but it is likely to prompt support for the types of procedural reforms that the ABA has endorsed. Indeed, Wesson herself has said that writing the novel -- which in turn was prompted by her appellate representation of a Death Row inmate, to whom she had to explain that his claims and proofs of innocence were legally irrelevant -- "has caused me to reexamine my own commitment to finality at the expense of accuracy." [Transcript of NPR Weekend Edition Sunday, April 19, 1998]

Selected References:
     The epigraph quote is taken from "Hearings before the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary," U.S. House of Representatives, 102d Cong., 1st Sess. at 447 (1991).
      Re: the severe limits on Habeas Corpus remedies, see, e.g., Panel Discussion, "Capital Punishment: Is There Any Habeas Left in This Corpus?," 27 Loyola University Chicago Law Journal 524 (1996).
     Nadine Strossen, Professor of Law at New York Law School, has written, lectured, and practiced extensively in the areas of constitutional law, civil liberties, and international human rights.  Since 1991, she has been President of the American Civil Liberties Union, the first woman to head thenation's largest and oldest civil liberties organization. Professor Strossen is also on the Board of Editorial Consultants of Books-on-Law.
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