Washington Lawyer

Books in the Law: February 2014

From Washington Lawyer, February 2014

By Paul D. Pearlstein, Ronald Goldfarb, and Patrick Anderson

Bully Pulpit book coverThe Bully Pulpit: Theodore Roosevelt, William Howard Taft, and the Golden Age of Journalism
By Doris Kearns Goodwin
Simon & Schuster, 2013

Review by Paul D. Pearlstein

This is a BIG book featuring two very BIG men! Actually, it could be three, four, or even five books. The subtitle, Theodore Roosevelt, William Howard Taft, and the Golden Age of Journalism, accurately describes the focus of the book. The author examines the lives and times of Roosevelt and Taft from the cradle to the grave.  

Their wives were critical players and they are given their due. We see Roosevelt’s love and loss of Alice and the devotion of Edith, his second wife and childhood playmate. Taft’s politically ambitious spouse, Nellie, was a liberated lady for her time. Strong-willed and once employed, she smoked cigarettes, drank liquor, and enjoyed a good poker game. In later years, she even supported some of FDR’s policies, much to the chagrin of her “Mr. Republican” son, Senator Robert Taft. Nellie successfully guided her talented spouse away from the bench to Washington, and ultimately to the presidency.[1] Although she suffered a stroke two months after moving into the White House, she survived to age 81.

Doris Kearns Goodwin, a Pulitzer Prize-winning author, cleverly weaves the work of the progressive journalists into the lives of the two presidents and the issues of the era. As an impoverished Irish immigrant with manic energy and creativity, Sam McClure started McClure’s Magazine. McClure put together a team of superstar reporters, including Ray Baker, Willa Cather, Stephen Crane, Jacob Riis, Upton Sinclair, Lincoln Steffens, Ida Tarbell, and William Allen White. For McClure’s Magazine, these writers provided credible, hard-hitting exposés of corruption and abuses in the United States. The public drank up the stories and loved the new publication.

Several of these no-holds-barred reporters became close to Roosevelt. Some were invited to discuss their positions with the president even when they strongly disagreed with him. But what started as a symbiotic lovefest with the press became an irritant to Roosevelt by the end of his presidency. It was at a Gridiron Dinner that Roosevelt labeled these irreverent journalists “muckrakers.” 

When Roosevelt served as New York City Police commissioner, Riis, and later Steffens, suggested and accompanied him on unannounced predawn inspections of the police force. Roosevelt was shocked at what he found and took immediate action. Steffens followed up with damning articles exposing institutionalized police corruption. Additionally, in a 50,000-word, six-part series appearing in McClure’s Magazine, Baker wrote about corruption in the railroad industry. Sinclair also wrote the “fiction” novel The Jungle. The book described in disgustingly accurate detail the horrors observed in the Chicago food processing industry. 

Many readers will come to Goodwin’s The Bully Pulpit already knowledgeable about the life of the frenetic Teddy Roosevelt: childhood sickness, father’s early death, beginning political life in New York City and Albany, the Rough Riders, the Panama Canal, conservation, and even his Nobel Peace Prize.

By contrast, general knowledge about Taft is sparse. This giant of a man (weighing more than 335 pounds while in the White House) was a polite, judicious, tactful soul. He was well liked and modest. Although a self-doubting serial procrastinator, he had the ability to rise to the occasion at the 11th hour.

Both future presidents were from successful upper-class families and well educated. Roosevelt was a product of Harvard (the Porcellian Club) and a “taste” of Columbia Law School. Taft thrived at Yale University (Skull and Bones), received the highest honor from his class, and nurtured his love affair with the law at the University of Cincinnati College of Law.

Roosevelt and Taft appreciated one another’s strengths and weaknesses. The two men first became acquainted in 1898 in Washington when President Benjamin Harrison nominated Taft as U.S. solicitor general. Roosevelt was then an appointed member of the Civil Service Commission. Both families lived within 1,000 feet of each other in the District of Columbia, and they became good friends. The relationship was so strong that Roosevelt furiously promoted Taft as his presidential successor. Unfortunately, there was a rupture after Taft’s first term when Roosevelt savagely and personally attacked Taft and ran against him with his Bull Moose Party. Roosevelt’s venom divided the Republican Party and gave the presidency to the Democrat, Woodrow Wilson.

While serving as McKinley’s assistant secretary of the Navy, Roosevelt did even more than publisher William Randolph Hearst to start the war with Spain. The victory over Spain resulted in the U.S. administration of Cuba and the Philippines. Happily serving on the U.S. Court of Appeals for the Sixth Circuit, Taft reluctantly accepted President McKinley’s offer to become governor-general of the Philippines, replacing General Arthur MacArthur.[2] With Nellie’s support, Taft became a well-received and highly successful governor-general. Meanwhile, Vice President Roosevelt had become president after McKinley was assassinated. The Tafts ended their foreign adventure and returned to Washington when Roosevelt appointed Taft his secretary of war and also sought his assistance with the Panama Canal.

During Roosevelt’s presidency, there were many pressing issues. Monopolistic trusts controlling steel, railroads, and oil corrupted and manipulated their markets. High tariffs favored the owners of manufacturing companies but drove up prices for consumers. The issues created a bitter division within the Republican Party.

The Republican progressives wanted to break up the trusts, level the economic playing field, and improve the pay and working conditions of labor. Many believed that the harmful corruption and abuses of the Carnegies, Goulds, Morgans, Rockefellers, and Vanderbilts demanded correction. By contrast, Republican conservatives wanted more protection for the wealthy and even higher protective tariffs, lower taxes, and a hands-off, laissez faire policy on business and its trusts. As taught by political economist William Graham Sumner at Yale, the conservatives argued that the very rich had earned their success and the less fortunate workers deserved their fate. The successful captains of industry were increasing the wealth and strength of the entire country and must not be restrained. These “heroes” should not be interfered with and their “peccadillos” go with the territory.

Progressive journalists continued to weigh in on these issues. Baker set out to investigate the nation’s tycoons. He began to study J. P. Morgan, who employed more than 250,000 people and enjoyed “a yearly income almost as great as that of Imperial Germany.” Morgan, Andrew Carnegie, and other steel men had put together the United States Steel Corporation by manipulation, corruption, and brute force. U.S. Steel was “the first billion-dollar corporation in the world,” Goodwin writes. Morgan went on to help form and control the holding company, Northern Securities Company, which created a monopoly over rail transportation and steamships and became the second-largest corporation in the world behind U.S. Steel.

Baker’s gripping articles disclosed the resulting abuses to the workers and customers under these giant trusts. Roosevelt was piqued and Baker was invited to discuss and argue the matter with Roosevelt at the White House. Once convinced, Roosevelt embraced the need for reform and took steps to confront the Northern Securities monopoly. His attorney general commenced one of the first Sherman Antitrust Act lawsuits in the country. A hard-fought victory was upheld by the U.S. Supreme Court. Northern Securities was finally dissolved, but, ironically, much of it reemerged in 1970 as Burlington Northern Railway.

In another article appearing in McClure’s Magazine, Tarbell wrote a devastating disclosure of the abuses of John D. Rockefeller and his Standard Oil Company. Tarbell was personally motivated by the subject. Her father had been a very successful independent oil producer in Titusville, Pennsylvania, who was ruined when Rockefeller doubled the transportation costs for small, independent oil producers.

Tarbell’s articles, along with those of Baker, Steffens, and others, made McClure’s Magazine a huge success. As the entire country reacted to the exposés, Presidents Roosevelt and Taft listened and became cautious but committed progressives. New laws were created to give the federal government authority and some clout to fight and prevent the revealed corruption and abuses. The Bureau of Corporations (TR 1903), the Pure Food and Drug Act (TR 1906), the Federal Employers Liability Act (TR 1908), and the Payne–Aldrich Tariff Act (Taft 1909) all began to alter the freewheeling, irresponsible conduct of many businesses. 

Goodwin’s new book describes the players, political struggles, and many changes that occurred at the turn of the 20th century. She has written an important work of American history with a touch of, “Wow, did all of that stuff really happen in this country?”

Notes
[1] After his presidency, Taft achieved his real goal when Warren Harding appointed him chief justice of the Supreme Court.
[2] Like Father, Like Son. At that time, Douglas Mac-Arthur’s father, General Arthur MacArthur, was the governor-general of the Philippines and lived in the lavish Malacañan Palace. Arthur resented Taft, absented himself when Taft and his party first arrived, and refused to turn over the mansion to Taft. Being a polite gentleman, Taft backed off, found separate quarters, and only moved into the palace after MacArthur left.

earth graphicThe Gods of Guilt
By Michael Connelly Little, Brown and Company, 2013
Review by Ronald Goldfarb

“My pulpit is the well of the courtroom. I preach to the twelve apostles, the gods of guilt.”

A former crime reporter for the Los Angeles Times, now a Florida resident, the super successful thriller novelist Michael Connelly gets his story ideas and expertise hanging out with the police and lawyers. The title, The Gods of Guilt, comes from a remark by one trial lawyer who used the phrase to describe the profound power of juries. Connelly saw the notion as a metaphor for one’s own meditation on personal guilt, he once told a CNN interviewer, as people seek their private verdicts on their actions in life. As his old mentor (Legal Siegel, now in a retirement facility) tells the central character, a bruised-by-life, savvy but eccentric trial lawyer, “There are plenty of people out there judging us every day of our lives and for every move we make. The gods of guilt are many.”

The award-winning author of a continuing series of successful novels (over 50 million copies sold so far) about crime and law in a big city (Los Angeles), Connelly brings together in his newest project his recent cast from The Lincoln Lawyer book-turned-movie. His central character is Mickey Haller, a veteran trial lawyer who cruises the city in his vintage Lincoln Town Car that also serves as his office (equipment and files in the trunk; printer in the passenger seat) and driven by his ex-client, ex-con Earl Briggs, who is working off his fee. “I liked working out of the back seat and flying by the seat of my pants,” notes Mickey. Assisting Mickey is his office manager and ex-wife, Lorna Taylor; her new husband Cisco Wojciechowski, a tattooed, muscled investigator; and a young, striving legal assistant named Jennifer Aronson. For a fifth time, Connelly uses this colorful cast of characters in the latest drama in Mickey’s adventurous, offbeat legal career.

Mickey’s lawyer life isn’t of the Big Law mold; it is more like the Fifth Streeters that columnist Jake Stein describes with much insight and charm on these pages. He picks up assigned cases at the criminal courts, advertises, hustles. Mickey has honor, but he stretches ethics in his battles for justice on behalf of his “colorful” and sometimes questionable clients. His teenage daughter is alienated from him because she sees the things he does for his dark clients as either black or white, and he knows “it was gray, and the gray area was where her father dwelled,” Connelly writes. Mickey’s private life is in shatters. But he “doesn’t like telling clients to abandon all hope,” so Mickey does what he has to do, often coming close to ethical lines and occasionally crossing them.

I don’t tell plots in reviews, but Connelly’s plots are less his strength than the world he creates. His stories are breezy, complicated enough to keep readers paying attention, and filled with action and drama. The first half of the book brings the history and characters on stage. At page 233 he starts his central trial, as he often waits to do. Then he switches from the moods of Raymond Chandler to the lawyer tactics of Scott Turow. His trials have twists and turns that keep readers turning pages, unsure where the story is going. He mixes two trials—one historical, and the present a murder trial—and pulls them together ingeniously.

Connelly writes in a worldly, noir style. He posits, “Isn’t everybody hiding from something?” He captures the offbeat personalities of the lowlifes who inhabit the criminal justice world—disbarred lawyers, crooked cops, frightening criminals, overworked DAs (“who seemed to carry the burden of proof in her slumped shoulders and permanent frown”), wizened judges, rogue DEA agents, savvy investigators, cartel thugs, and assassins. He also tosses in an assortment of sordid riffraff, pimps (this one digital), and prostitutes who are tough, with funny names like Glenda the Good Witch and Trina Trixxx. Most are tough, some are enticing, a few oddly appealing. Their lives are depressing: “She was unable to leave it, and eventually it took everything away from her. It was an old story, and in a year’s time, it would be forgotten or replaced by the next one,” Connelly writes. He knows crooks who pulled scams that “brought new meaning to the words heartless predator,” and prisoners who knew how to work in their cells with throwaway cell phones and who ingeniously manage to operate on the streets while they do their time in joints.

Connelly knows the criminal justice system from his days covering it as a reporter and from his regular interviews with players, along with his special sense of details and his intricate storylines. Trial lawyers will recognize how well he knows the system, and general readers must sense his verisimilitude. He uses small details such as noting how judges at sidebars with counsel turn on the fan at their desks so the jury won’t hear the colloquy going on. Or the smart observation by one lay witness that “being able to describe him (a suspect) and recognize him are two different things.” Connelly’s books are filled with insightful reflections on how the system works from inside. The Gods of Guiltoffers many:

Realities of Prosecution:

While I have zero doubt that innocent people are charged with murder, for the most part the police and prosecutors get it right, and you are left to negotiate or ameliorate the length and terms of punishment.

Life in Prison:

If you act unconcerned about being locked into a steel building with 1,200 violent criminals, then maybe they’ll let you alone . . . if you show fear, then the predators will see it and exploit it. They’ll come for you.

Suspects:

Most people who enter the criminal justice system end up being their own worst enemies. They literally talk their way into the handcuffs.

Evidence:

Mysteries always played into the defense’s side. Mysteries were question marks, which led to reasonable doubt.

It is in the instinctual interpretation of voice and personality that we form our judgments of others. Nothing beats that. Not fingerprints, not DNA, not the pointed finger of the eyewitness.

Arraignment:

The place where the criminal justice system becomes a feeding frenzy, where those who are caught in the net are delivered to market.

Tactics:

Eighty percent of criminal law is figuring how to stay out of trial . . . .

Bull----ing a jury is one thing. But it grows increasingly risky to mislead a judge who has been around the block a few times.

Miranda:

Largely bogus and part of the dance detectives engaged in every day in every police station. They walked a constitutional tightrope, trying to push things as far as they could before having to enlighten the hapless saps who sat across the table from them.

Investigations:

How drug cases were built. Small fish giving up bigger fish.

Trial Talent:

I knew lawyers from top law schools who couldn’t find their way out of a courtroom. And I knew night school lawyers who I’d call in a heartbeat if it was ever my wrists in a handcuff. It was all about the lawyer, not the law school.

Verdicts:

The fine line between seeking the truth and seeking a verdict in your client’s favor. They weren’t always the same thing.

There is no script when you get into a courtroom. It’s do or die.

Prison Atmosphere:

Sounds and smells, the drab gray steel set off by the garish orange uniforms of the incarcerated, the mixture of desperation and threat in the faces . . . .

Hung Juries:

A sick dog and it needs to be put down as quickly and smoothly as possible. In the defense trenches, that is a victory.

Taking the Stand:

He believed—not without some merit—that guilty men remain mute and the innocent speak out. They testify.

Trials:

Always a work in progress and it almost never rolled out the way you initially planned or envisioned it.

The trial in The Gods of Guilt will have readers racing toward the exciting ending. This is typical Connelly at his best: scary, insightful, and filled with imperfect people fighting through hard and gritty lives.

In a recent interview, Connelly was asked what stories he was drawn to. His reply captures the essence of this book, and most of his detective and lawyer stories: “I like stories about people who have to go into the darkness for a good reason and then have to figure out how to deal with the darkness that seeps into their souls.”

Michael Connelly’s The Gods of Guilt surely does that!

Ronald Goldfarb is a Washington, D.C., (and Miami-based) attorney, author, and literary agent whose reviews appear regularly in Washington Lawyer. Visit www.ronaldgoldfarb.com or e-mail rlglawlit@gmail.com.

Identical book coverIdentical
By Scott Turow
Grand Central Publishing, 2013

Review by Patrick Anderson

Scott Turow is far too intelligent and talented to write a truly bad novel, but I must say that I found Identical, his latest offering, to be perplexing. Turow again sets his story in the legal/political world of Kindle County, his fictional Chicago. His focus is on two prominent feuding Greek American families, one led by billionaire businessman Zeus Kronon, the other represented by the twin brothers Paul and Cass Gianis.

If you are up on your Greek mythology, you will recall that the god Zeus, taking the form of a swan, raped Leda, queen of Sparta, who gave birth to the twins Pollux and Castor. This mythology partially inspired the novel, as Turow tells us in an afterword that would have been more useful at the front of the book.

Turow’s story moves back and forth between the September 1982 murder of Kronon’s daughter Dita and events in 2008 that finally reveal the truth about her death. In 1982, Kronon hosts a lawn party at his mansion for several hundred of his fellow parishioners from St. Demetrios Greek Orthodox Church. The twins, Paul and Cass, then age 25, are among the guests, as is their mother Lidia; Paul has just finished law school and Cass is about to enter the police academy. Cass is also involved in a passionate affair with the spoiled and difficult Dita, whose name suggests Aphrodite, daughter of Zeus and goddess of love.

That night, after the party ends, someone enters Dita’s room in the mansion and beats her to death. The killing is unsolved until Cass abruptly confesses to the crime and is sentenced to 25 years in prison.

In 2008, Paul is a state senator running for mayor of Kindle County and Cass has just been released from prison. By then, Kronon is dead: he has gone to Greece to rebury his daughter on Mount Olympus and—if you can believe this—someone pushed him off the mountain. His son Hal, a blustering right-winger who has inherited his father’s shopping-center empire, tells reporters that he believes Paul, the Democratic candidate for mayor, was involved with his brother in the murder of his sister Dita.

Paul can’t let such an explosive charge go unanswered, but when he sues Hal for defamation he opens himself up to lingering questions about the crime. DNA testing has progressed a great deal since 1982, and one question that arises is whether today’s testing can establish whether blood found at the murder scene belongs to one or the other of the identical twins.

Hal underwrites an expensive negative ad campaign against Paul that Turow uses to express his scorn for the Citizens United decision. The lawyer Ray Horgan, a fixture in Turow’s novels since Presumed Innocent, angrily declares that Hal is “an individual exercising his First Amendment rights. At least as long as there are five clowns on the Supreme Court who think that spending money is a form of unrestricted free speech.”

Most of Turow’s characters are interesting and complex, with few if any good-guy, bad-guy stereotypes. Two of the most interesting are investigators working for Hal to find dirt that might implicate Paul in the long-ago murder. Evon Miller is a 50-year-old lesbian who, after a successful career with the FBI (highlighted by undercover work that sent several judges to prison for corruption), has become Hal’s chief of corporate security. She’s a good person and good at her job, but we watch her suffer through the end of an unhappy love affair with an emotionally unstable partner, followed by her fears that she may never find the love she seeks. She works closely with Tim Brodie, an 81-year-old retired detective who’s an investigator for Hal and grieves endlessly for a wife he lost a few years earlier and for a six-year-old daughter who died decades in the past. Sorrow and mortality are oft-repeated themes of the novel.

We are often reminded in Identical that not only does Turow write extremely well about the law, but he also is a stylist, a writer who can inject graceful and vivid prose into a murder mystery. Tim, the old detective, recalls his dead wife’s occasional anger toward him, “words that made his deflated hopeless heart flounder in his chest.” On a spring day, Evon looks up and sees “high clouds plump as doves.” An old woman’s face is “a glistening pond of cold cream.” Tim, who loves music, passes a woman playing the cello: “Her music, Brahms, was offered as a gift, a reminder of the eternal and evenhanded power of beauty, a thought that stirred him deeply.”

Turow’s narrative moves briskly, punctuated by frequent reversals and surprises. The basic question is whether someone other than Cass killed Dita and, if so, why he chose to confess and go to prison. Many old loves and hates figure in the outcome.

Despite the novel’s strengths, I had three problems with it. One is that, in exploring the question of whether one identical twin’s DNA could be distinguished from the other’s, Turow inflicts several pages of incomprehensible scientific jargon on us—and then the question proves not to matter in the outcome of the story. It’s far more important that he demonstrates the exceptional love that exists between the brothers.

Secondly, I think Turow overdoes the parallels between his characters and the Greek gods. Besides Zeus and Aphrodite, Cass/Castor, Paul/Pollux, and Leda/Lidia, there’s even a dog named Cerberus in honor of the three-headed watchdog that guarded the gates of Hades. It’s just too much. Certainly, some of Turow’s characters are as lustful, cruel, dangerous, and duplicitous as the Greek gods they suggest, but they could have been that way without the mythology to lean on.

Finally, while the novel is readable and entertaining, I found several elements of its outcome—its final revelations—to fall somewhere between unlikely and incredible. Turow asks us to accept developments that left me shaking my head in disbelief.

Shakespeare sometimes injected twins into his comedies, but their use by lesser mortals has often been discouraged. In 1928, S. S. Van Dine, author of the Philo Vance mysteries, wrote an article titled “Twenty Rules for Writing Detective Stories,” in which he listed “devices which no self-respecting detective story writer” will use. One is “[t]he final pinning of the crime on a twin.”

Raymond Chandler, in his celebrated 1950 essay “The Simple Art of Murder,” deals harshly with the popular 1920s novel The Red House Mystery, which concerns twins Mark and Robert Ablett. Mark lives in an English country house. Robert, his wayward twin, is coming for a visit after 15 years in Australia. Soon after his arrival, one of the twins is found dead and the other vanishes. The police are incapable of determining which twin is the corpse. Chandler calls this “incredible,” and suggests that using twins in a mystery story can amount to fraud.

Rules are made to be broken, but even for a writer as skilled as Turow the use of twins is dangerous. The problem is that the identical characters tempt the writer to play games with the reader. Turow plays clever games in Identical, and some readers may find them fascinating. I didn’t, but I remain confident that his next novel will mark a return to excellence.

Patrick Anderson, a novelist and journalist, reviews fiction regularly for The Washington Post.