A Patent Lie
By Paul Goldstein
Doubleday, 2008

 

 

 

 

A Cure For Night
By Justin Peacock
Doubleday, 2008

Reviews By Ronald Goldfarb

Two new legal thrillers, one written by a Stanford University law professor, the other by a Yale Law School graduate in private practice in New York City, offer engaging summer reading for lawyers as they lug their beach bags and backpacks. A Patent Lie by Paul Goldstein is the sequel to Errors and Omissions, previously reviewed in Washington Lawyer (July/August 2006). A Cure For Night is a remarkable debut novel by Justin Peacock.

The hero of A Patent Lie, Michael Seeley, is a dark, demon-driven, talented trial lawyer whose life has been troubled by a violent father as well as a drinking problem that destroyed Seeley’s family, marriage, and lucrative trial practice in New York City. This story opens with Seeley beginning a new life in Buffalo, New York, his hometown, where he is handling dreary, small-time legal work while he copes with his fall from success at a high-powered New York City firm.

His estranged brother, Leonard, a doctor in San Francisco working for a pharmaceutical company, convinces him to take over a patent infringement litigation case on behalf of the company, Vaxtek, Inc. The company attorney committed suicide shortly before the trial—or so it seemed—and Seeley reluctantly agrees to replace him. The case concerns the right to control the high-stakes worldwide sales of a new AIDS vaccine. The patent’s validity is challenged by a multinational Swiss pharmaceutical giant.

Seeley encounters suspicious circumstances (which I won’t disclose), intramural law firm intrigue, and a seductive, offbeat chief witness. In Goldstein’s tome, the trial stratagems are well done, and the lawyers’ moral dilemmas are interesting, although the characters are a bit too dark. The dialogue and narrative are good, if somewhat too taut. The conclusion suggests there will be another installment of Seeley’s quixotic courtroom and life adventures.

I like best the noir circumstances of Goldstein’s otherwise big city, major litigation stories, particularly his observations of trial lawyers’ conundrums. “Vaxtek had bought his time, not his moral choices;” corporate bigwigs don’t “mind risk, only competition;” “… the longer you practice, the easier it is to lose sight of the principles that brought you into the profession;” and “law schools teach ethics, not morals.”

Goldstein’s description of places—in this case, Buffalo and San Francisco—captures nicely the mood of these settings. His man-woman encounters are intriguing, but they are cut too short. His courtroom stratagems are very real, if also somewhat brief in the playing out. His insights into the international pharmaceutical business and its reliance on patents are edifying, if troubling. In Errors and Omissions, Goldstein wrote about the movie industry in Los Angeles and New York and the financial world that governs it. A Patent Lie deals with the biotech world of Silicon Valley. In both books, Professor Goldstein includes international features and draws on his professional knowledge of law, litigation, and business.

Goldstein is a good storyteller, and no doubt he will continue to pursue his second career as a novelist of legal thrillers. His books are smart and readable because he knows the interesting worlds he explores—law and business. In both his books, he deals with the moral ambiguities of the law and the intellectual integrity of its practitioners, surely worthwhile and provocative subjects for lawyers to read.

On the other hand, Justin Peacock’s hero in A Cure For Night, Joel Deveraux, was once a rising star in a large, prestigious New York City law firm who also has fallen from grace. He regains his credibility—as a lawyer and as a human being—working as a public defender in Brooklyn. The world he left and the new one he arrived in could not be more different. Peacock describes both with a fine ear for language—a mix of big law firm lifestyle and the vernacular of the street—and a perceptive eye for the details of cases and relationships he encounters as a rookie public defender.

Peacock is a perceptive sociologist of the various ends of law practice and the life it entails. He describes Rikers Island as “the Los Angeles of jails, it was sprawling, disconnected, a bunch of buildings spread out haphazardly across a woody landscape.” The projects that spawn the world of violence and the drug trade public defenders encounter “possessed an aura of dilapidated menace,” he writes. The cash money exchanged in the drug trade is referred to as “dead presidents.” The criminal court system moved apace but “nobody bothered to keep track. Everyone too busy just keeping the system running to bother tracking whether it is actually working or not.”

Peacock also offers insights into the big firm, big city practice he left suddenly, for dramatic reasons, which is where the story begins. For the young striving lawyers, while “it was more a meritocracy than an aristocracy … the line between the two is seldom very clear … the young lawyers were little more than fungible billing units serving to line the partners’ coffers.”

The “hero” has a will-they, won’t-they relationship with his hard-edged superior in the New York Public Defender’s Office who teaches him the ropes of criminal law defense work. She is an interesting character, tough on the outside with suggestions of a warm inner being, waiting to be touched.

Together, they investigate and defend a murder case and strategize about other cases each is working on separately. The dialogue is choice, and the savvy play of tactics is intriguing. Adventures intervene and complicate the story just enough to speed up the page turning. The drug world on the streets of Brooklyn is presented in all its bleak and deadly reality. The agonies of conscientious trial lawyers in combat are explored deftly. So, too, is the drama of the courtroom: “Trials were like weddings in that the audience seated themselves according to their sides, only instead of the bride and groom it was prosecution and defense.” And, about appeals, Peacock writes: “The appellate courts are pretty much incapable of even thinking about innocence. It’s not in their DNA. Their whole purpose is just to make sure the rules were followed…”

Readers will appreciate Peacock’s frequent insights into the criminal justice system. Here are some of his gems:

… Why I like being a lawyer so much. It’s a way of engaging with the world by way of other people’s problems…. We get to go to war, but it’s always someone else’s battle. Win or lose, for us, we live to fight another day. We’re in the fight, but not of the fight.

Peacock draws the title of this book from an observation about the nature of defending criminal cases:

That’s what the criminal law is: It’s how the day tries to correct the night’s mistakes. Most of my cases, people have done something they never would’ve dreamed of doing in broad daylight. What does that make us? The night’s janitors? We’re absolutely that. What else do we do but clean up after it? That’s why we’ll never run out of work. Not unless someone invents a cure for night.

On the realities of investigations by homicide detectives, he writes:

Actually, it sort of is a Socratic dialogue, only with threats taking the place of dialectic, and prison taking the place of enlightenment.

And of the adversary system:

A criminal trial is a search for the truth, but the defense lawyer isn’t a member of the search party.

On life outside the office and courtroom, his perspective is insightful as well:

… dating in New York was as much a matter of tactics as was practicing law.

Peacock’s tough superior and possible love interest remarks about courting:

There’s too much dirty work that has to be done in a relationship, and men are scared that if they settle down with an equal, they might actually have to do their fair share of it.

This book is engaging and thoughtful. The buzz on Peacock’s first novel is that he has entered “the territory of Richard Price and Scott Turow.” I would say that is accurate, and I would add that Peacock has planted his own impressive flag. He is a gem of a writer, storyteller, and moralist.

Ronald Goldfarb is a Washington, D.C., attorney, author, and literary agent. Reach him at rglawlit@aol.com.

The Real Price of Everything: Rediscovering the Six Classics of Economics
Edited by Michael Lewis
Sterling Publishing Co., Inc., 2008

Review By James Srodes

Forget all the boring novels and nonfiction trash by political talking heads you were going to read on vacation. I have got the book for you to delve into for that long holiday read. It is a short course on all the doubts that have been haunting you about your economic future, but that you haven’t had time to figure out. While this book will provide answers, there is one word of warning: do not try to read this book lying down.

At 1,467 pages, three-and-a-quarter inches thick, and 4.5 pounds of dead weight, The Real Price of Everything: Rediscovering the Six Classics of Economics is not to be rested lightly on your chest as you sprawl out on the deck chair. The second bit of advice is, learn to read again. Instead of rushing through text-message glyphs, slow down. Take deep breaths, have a cold drink by your side, and let the often funny, always lucid prose of six of the greatest economists of our historical epoch talk to you about their ideas in their own words.

Michael Lewis, the bestselling author of Liar’s Poker: Rising Through the Wreckage on Wall Street and Moneyball: The Art of Winning an Unfair Game, has pulled together the seminal volumes of Adam Smith, Thomas Robert Malthus, David Ricardo, Charles Mackay, Thorstein Veblen, and Richard Nixon’s favorite, John Maynard Keynes. His capsule biographies are lightly written, and the crib essays he uses as an introduction to each man give you the momentum you need to find and think about the main points of argument and thought of these economic pillars.

If you took the minimum required economics course in college, all these names should be familiar to you. Surprisingly, however, almost everything you learned turns out to have been mistaken by generations of interpreters. What we learned in Econ 101 was that these six were Columbus-style explorers who got part of what they saw correct, but in the main failed to give us an accurate report of how economies really work. The truth is, these six economists shaped Western capitalism and the world we live in today more than all the kings, emperors, and statesmen who were their contemporaries.

We are paying the price for our misunderstandings. One presidential candidate is rather smug about his ignorance of the basics of how our economic society works. The other is jostling to get under the tent of liberal orthodoxy, yet promising economic policies that would bring a sweat of envy to the brows of Willis C. Hawley and Reed Smoot, whose 1930 protectionist tariff law set the Great Depression really rolling. The trouble is that some of us know deep in our hearts that neither candidate understands much about the economic crisis facing us, a crisis caused largely by the malfeasance and willful ignorance of those charged with formulating fiscal policy in both the White House and Congress. By understanding just what truths Lewis’ six economic guides really said, we might just find a way before it is too late.

Take that darling of the crusted conservative movement, Adam Smith, whose profile on neckties is an identification badge for those who are Really Right. Yet as Lewis points out, “Readers who have mastered Smith’s full text will be rewarded not only with a full and accurate understanding of the theoretical foundation of modern economics and capitalism, but with an instinct for how Smith’s ideas apply or can be adjusted to apply in the contemporary world. They may also gain an interesting new hobby: marveling at the parade of op-eds, political rhetoric, and economic scholarship that distort and misapply portions of Smith’s work and ideas to justify arguments that Smith would have damned as foolish and dangerous.”

Probably the most foolish, perhaps dangerous, misstatement of Smith is that he preached a doctrine of laissez faire that held that economies functioned best with the least government interference or guidance. From this misstatement, many contemporary disciples go on to argue that individual self-interest is the only reliable spur to a society’s prosperity in a kind of Darwinian struggle between the successful (the rich) and the unfit (the poor), with politicians as a disease afflicting both.

But as Lewis points out, “Wealth was not an end that justified any means for Smith, but a means toward a brighter future for all humanity. Smith regarded prosperity as a path to greater freedom, expression, morality, and happiness for all members of a society. After years of research and thought—and after experiencing a catastrophic decline, then revival of the Scottish economy—Smith concluded that free trade was the most just and direct route to that egalitarian brand of prosperity.”

As for that famed “invisible hand” of self-interest, Smith quite clearly saw a role for governments to harness that drive for the good of all, not least providing the citizenry the optimum educational improvement and a rule of law equally applicable to all. Smith, it turns out, would have handed over Gordon Gekko to the cops without hesitation.

Another of the economic pioneers Lewis introduces was roundly dismissed during the 20th century as kind of loony for his warnings that unchecked population growth would soon outstrip humanity’s ability to produce enough food. But while the world’s food supply has numerically kept pace with population for the past two centuries, Thomas Malthus has recently enjoyed a revival among population economists.

All one has to do is watch the coverage of the latest food riots in Haiti, the genocide in Rwanda, or the persisting violence in Palestine to understand that Malthus was on to something. Modern Malthusians now factor in demography, high birth rates, high youth unemployment, and political violence and conclude there is an imbalance, if not outright shortage, of basic resources that is making the world a dangerous place.

If the Federal Reserve’s pronouncements are gibberish to you, then you must meet David Ricardo who, in 1809, first stated the rules of monetary policy and made $100 million in today’s money in the process. He also articulated the law of diminishing returns, which holds that the more resources are invested in production with a fixed resource, say land, the additions to output will diminish.

On the other hand, if you are stuck with a vacation home now worth a fraction of the mortgage attached to it, or if your 401(k) plan has sprung a leak, you will find the restatement of Charles Mackay’s Memoirs of Extraordinary Popular Delusions and the Madness of Crowds, first published in 1841, a clear if painfully frank explanation of your problem.

If you need further explanation for the mess we are in, read Thorstein Veblen’s landmark The Theory of the Leisure Class (1899) where he makes an interesting comparison between the early founders of industry, who went on to foster peace conferences and build free libraries, and the “conspicuous consumption” of the new generation of technocrats who were changing the face of American industry and spending their gains in lavish excess.

John Maynard Keynes is one of my favorites because he ended up changing his mind on the doctrine which bears his name and which drives Washington’s economic policies to this very day—that government can redirect our economy’s pace and direction through changes in government tax and monetary policy. His 1936 book, The General Theory of Employment, Interest and Money, has provided the theoretical underpinning for government planning and involvement in free markets in varying degrees ever since.

Yet to a critic, Keynes later conceded, “Moderate planning will be safe enough if those carrying it out are rightly oriented in their own minds and hearts to the moral issue. This is in fact already true of some of them. But the curse is that there is also an important section who could be said to want planning not in order to enjoy its fruits but because morally they hold ideas exactly the opposite of yours, and wish to serve not God but the devil.”

After you finish all 1,467 pages, pass the book along to someone, say, Fed chair Ben Bernanke.

Journalist-author James Srodes was Washington bureau chief for both Forbes and Financial World magazines.

The Execution of Willie Francis: Race, Murder, and the Search for Justice in the American South
By Gilbert King
Basic Civitas Books, 2008

Review By Joseph C. Goulden

When I read Gilbert King’s profoundly disturbing book some weeks ago, the United States Supreme Court was considering a Kentucky case challenging the state’s method of execution by lethal injection as cruel and unusual punishment. Sensing a growing public abhorrence toward capital punishment, I felt the Court would finally shove the death penalty off into the shadows, giving this review a happy ending.

Such was not to be.

On April 16, in a 7–2 decision, the Court upheld Kentucky’s system. In the plurality opinion, Chief Justice John G. Roberts Jr. wrote, “Some risk of pain is inherent in any method of execution—no matter how humane—if only from the prospect of error in following the required procedure.” The Court relied heavily upon prior cases to support its decision. The subject of King’s book, botched death procedures, addresses one of the cases cited for not banning capital punishment.

The story is of Willie Francis, a frail, stuttering Louisiana black kid who had barely turned 17 when he was first seated in “Gruesome Gertie,” a portable electric chair the state used for executions in 1946. The attempt was horribly botched, Willie survived, and the state decided to try again.

Be forewarned: in the next paragraphs, you will encounter grisly language for which I do not apologize. A society whose judicial system permits executions should be aware of the details of what is done in its name.

The case arose from the shooting death in November 1944 of a popular bachelor businessman named Andrew Thomas in St. Martinville, in the Cajun country of southwestern Louisiana. Someone accosted Thomas one night outside his home and killed him with five pistol shots. Willie had done occasional odd jobs in Thomas’ store, but no one thought of him as a suspect. Given Thomas’ reputation as a Lothario who was known to enjoy the company of married women, local suspicion focused on two cuckolded husbands. Both had alibis, however, so the case lingered for months.

In August 1945, police in Port Arthur, Texas, about 150 miles west of St. Martinville, mistakenly arrested Willie on suspicion of a street robbery. They found an identification card on him bearing the name “Andrew Thomas.” After hours of badgering (this was pre-Miranda, remember) the youngster supposedly wrote a “confession.” The statement said the pistol used in killing Thomas had been stolen from a deputy sheriff; it was never found. As King notes, much of the language seemed formalistic for a quasi- literate teen. But Willie’s confession contained a cryptic quasi-sentence that cried out for further investigation: “It was a secret about me and him.”

Willie’s trial was cursory, with his court-appointed attorneys making no effort to challenge the state’s case. King writes, “Some whites ... found it hard to believe that Willie Francis, whose stammer they equated with feeble-mindedness, could have managed to steal a deputy sheriff’s gun and fire it so accurately during the course of a robbery.” What was the “secret” to which Willie alluded? What about the car a neighbor heard pulling into Thomas’ driveway just before shots were fired? Willie had no car. The “defense” called no witnesses. The jury swiftly decreed death.

Enter the mechanics of death. For executions, Louisiana relied on a truck-drawn portable electric chair whose leather strap bore a notch for each time it was used. The crew on this occasion consisted of a couple of Snopesian characters—Ephie Foster, a farmer turned Angola prison captain, and inmate trusty Vincent Venezia, serving his third term in Angola for burglary and fraud.

They spent the previous evening in a saloon, daring other drinkers to come see us “fry a nigger.” They nipped at a bottle of liquor while setting up the electric chair the next day, running wires through a second-floor window.

The youngster was strapped into the chair, a leather hood pulled over his face. Witnesses saw hard convulsions as 2,500 volts of electricity jolted Willie’s body. Willie would say later that his leg felt like “somebody was cutting it with a razor blade.” But after a minute or so, he was still breathing. As two physicians present examined him, Foster took a drag off his cigar and spluttered, “Well, we’ll give him another one,” and threw the switch again.

Gilbert writes, “The electricity tore through Willie’s body and again sent him into convulsions. Captain Foster was closely watching the boy ... and sensing trouble, yelled out the window, ‘Give me some more juice down there!’” As the current continued to flow, “Willie’s body continued to convulse, tense and stretch ... each muscle fiber straining against the leather straps, until finally he screamed, ‘Take it off! Take it off! Let me breathe!’”

“You’re not supposed to breathe,” Foster shouted. He let the current continue until the presiding sheriff ordered him to stop.

Jail authorities called Governor Jimmie Davis, who won office chiefly because of the song that made him a country western music star, “You Are My Sunshine.” Some at the jail wanted to adjust the chair and try again. But Davis felt that doing so on the same day could be considered “bad taste,” so they gave Willie a six-day extension until the chair would again be available. The decision angered Foster, who shook his fist at Willie and cursed him, saying, “I missed you this time, but I’ll kill you next week if I have to do it with a rock.” The confused youngster was taken back to his cell, not exactly sure what had transpired.

The sheriff permitted reporters to talk with Willie, whose comments bore the beauty of simplicity.

“How’d it feel, Willie?” one asked.

“Plumb mizzuble,” Willie stuttered.

“What went wrong?”

“God fool’d with the electric chair.”

“What’s it like to taste death?”

“Like you got a mouth full of cold peanut butter,” he said, adding that death looked like “little blue and pink and green speckles, like shines in a rooster’s tail.”

State courts upheld the sentence, and Willie’s family managed to retain the first lawyer who gave the young man a fighting chance—Bertrand DeBlanc, a young Cajun lawyer who put his career at risk in taking the case. DeBlanc chose not to challenge the case on factual grounds, but rather he fought to keep Willie from making a second visit to the electric chair which, he argued, constituted “cruel and unusual punishment.” He found witnesses who told of the two executioners being howling drunk the night before botching their assignment.

DeBlanc managed to obtain a stay of the execution, then went to the United States Supreme Court to challenge the constitutionality of another execution attempt. For help, DeBlanc recruited a young Louisiana-born attorney, J. Skelly Wright, who was starting a Washington practice after wartime navy service. (Wright later served on the United States Court of Appeals for the District of Columbia Circuit.) Both men worked without pay.

The Supreme Court was not sympathetic. State lawyers produced Pardon Board affidavits of executioners Foster and Venezia stating that Willie “survived the execution completely without harm.” Justice Felix Frankfurter dismissed the episode as an “innocent misadventure.” The Court further held that “accidents happen for which no man is to blame;” further, that such “an accident, with no suggestion of malevolence,” did not violate the Constitution.

With the clock ticking, DeBlanc and Wright tried again. They gave the Court affidavits about the executioners being “so drunk it would have been impossible for them to have known what they were doing.” The Court showed signs it was disturbed. Although rejecting the appeal, it encouraged the lawyers to pursue the new evidence in state court, as required before it became a federal issue. The suggestion was so strong that at least some of the justices wanted grounds to stop the execution.

By now, fewer than 24 hours remained before Willie’s second execution date. Louisiana officials did not tarry, not wishing Willie’s lawyers to keep the process going. Once again, on May 9, 1947, a bewildered Willie was seated in “Gruesome Gertie,” tended this time by a competent electrician.

“Good-bye, Willie,” the man said, and pulled the lever, sending 2,500 volts of electricity through Willie’s body. King writes: “His chest didn’t heave, his body did not convulse. He took the electricity without a tremor.” Willie’s body sagged when the current was shut off, then came a second charge, “just to make sure.” This time, Willie was dead.

Chief Justice Roberts, in his plurality opinion in the recent Kentucky case, called the Willie Francis case an “isolated mishap” that “while regrettable, does not suggest cruelty.” His colleague, Justice Clarence Thomas, commented, “No one suggested that Louisiana was required to implement additional safeguards or alternative procedures in order to reduce the risk of a second malfunction.” The Thomas clerk who supplied that language should look again, for soon after the botched first attempt at executing Willie Francis, the Louisiana legislature decreed that the executioner “shall be a competent electrician who shall not have been previously convicted of a felony”—which would have disqualified the original execution team.

I am mailing the Chief Justice my marked-up copy of King’s book, with the suggestion that he share it with colleagues, and especially Justice Thomas. Any justice who relies upon the Willie Francis case as a basis for upholding capital punishment should at least know what he or she is talking about.

Joseph C. Goulden has written several books on the legal system, most recently The Money Lawyers: The No-Holds-Barred World of Today’s Richest and Most Powerful Lawyers (2006).