Law Man: My Story of Robbing Banks, Winning Supreme Court Cases, and Finding Redemption
By Shon Hopwood (with Dennis Burke)
The Crown Publishing Group, 2012
Review by James Srodes
No one is quite sure when some pre-Sumerian tyrant created the first jail; its main purpose most likely was just to hold prisoners pending their imminent execution. But whenever the first cell door clanged shut on the first group of unlucky offenders, you can be sure a jailhouse lawyer was among them.
As any member of the criminal court bar will confirm, even the most irredeemable villain faced with jail time invariably becomes surprisingly adept at thinking up reasons why society’s punishments should either be evaded or somehow lessened. Hope, it appears, springs eternal, even on the scaffold.
This chatty memoir tells an instructive story of how Shon Hopwood, a young, multiple–bank robber from Nebraska, converted himself into a successful in forma pauperis drafter of appeals for his fellow felons. Against incredible odds he managed to win a series of U.S. Supreme Court or appellate court reversals or reductions of sentence for his candy bar–paying clients. Buoyed by the love of a good woman and a surprisingly big-name cast of pro bono lawyers on the outside, the author moves on to hone his research and drafting skills at one of the leading legal publishers, and as this review was written, Hopwood is in his second year at the University of Washington School of Law.
There is an instructive lesson in this narrative that goes beyond the cheerful denouement of the author’s struggle to redeem his errant life. The hard truth is that in addition to the drudgery of legal research and meticulous drafting, the real key ingredient to success in the appeals process is to be on the cusp of a changing tide in public opinion and political pressure that sweeps one’s challenge over the shoals of crusted precedent and the instinctive intransigence of our various appellate jurists. In short, the force had better be with you or you will hit a brick wall.
What drove him to undertake the armed robberies of five Nebraska farm town banks puts him nowhere near the class of another prolific bank robber, Willie Sutton, when it comes to creative thievery.
It was unbearable boredom that drove Hopwood to rob banks. Through no fault of his own, he had grown up in a normal family of hardworking, decent, middle–class Nebraskans in a small (and, therefore, suffocating) town where he had enjoyed some notice as a basketball player. The hell of this upbringing proved too much for
young Hopwood, who dabbled at going to college, tried a stint in the Navy, and indulged in a lot of fantasizing about a pretty hometown girl named Ann Marie Metzner.
By his own admission, Hopwood was pretty hopeless as a bank robber. He and his equally dead–head chums routinely laid a trail of clues during their forays, and to their surprise, attracted the attention of the FBI. As a result, Hopwood drew a 12-year stretch in the federal penitentiary in Pekin, Illinois, a so-called medium-security facility that was fraught with fatal risks for the fledgling con.
While a reader may be put off at first by Hopwood’s seriocomic writing style (assisted by ghostwriter Dennis Burke), he does capture the tensions and perils of the overcrowded, gang-infested, drug-flooded, and randomly run Federal Bureau of Prisons correctional facilities that dot the rural landscape of our nation these days. Fortunately for Hopwood, his ability to make friends and gain protective respect through his basketball skills brought him his first lucky break.
A serendipity that changed Hopwood’s life came in the summer of 2000 when the U.S. Supreme Court agreed with U.S. Solicitor General Seth Waxman’s argument in two landmark cases on individual rights. One was the much publicized ruling in Dickerson v. United States, 530 U.S. 428 (2000), in which the Court held that the Miranda warnings requirement could not be overturned by an act of Congress since its spirit was embedded in the Fifth Amendment to the Constitution.
But a related and initially overlooked High Court ruling in Apprendi v. New Jersey, (530 U.S. 466 (2000), invoked the Sixth Amendment to forbid judges from increasing criminal sentences based on evidence denied to the trial juries. This ruling, also argued by Waxman, put a crimp in the plea-bargaining custom that had prosecutors luring defendants to plead to lesser charges in hopes that a quick settlement would lead to lesser sentences—only to be handed longer terms by the judge.
The other coincidence was that Hopwood was able to land a job in the Pekin prison’s library where, like most prisoners, he began trolling the law books searching for some hint that could lead him to at least a reduction in his sentence. While the Apprendi ruling was of no use to Hopwood’s appeal hopes, it proved a true goldmine for the Sixth Amendment, guarantees that criminal defendants have a right to assistance of counsel.
Hopwood had a fellow prisoner–client whose conviction seemed to fall within the Apprendi ruling. With time pressing, using homemade appeals forms and a lot of Hail Mary luck, Hopwood sent an appeal document off to the Clerk of the Supreme Court. To everyone’s astonishment, the Court agreed to review the case and asked the new solicitor general to respond. By another miraculous stroke, the pro bono attorney who agreed to argue Hopwood’s petition turned out to be Seth Waxman, who recently had joined WilmerHale LLP. Waxman insisted that Hopwood stay involved in the case.
The rest of Hopwood’s tale will make a pleasant ending for the made-for-television drama that is sure to come after he graduates from law school next year. But in the meantime, this book would be a good read the next time you turn on your Kindle for a long commute on Amtrak to New York and back.
James Srodes’ latest book, On Dupont Circle, was published last August.
The Partisan: The Life of William Rehnquist
By John A. Jenkins
Review by Carl Stern
On more than one occasion, while I was working as a correspondent for NBC News, I watched William Rehnquist walk around the U.S. Supreme Court building prior to the 10 a.m. session to ease his back pain. Clusters of tourists, with cameras clicking, crowded the majestic front steps and spilled into adjacent streets. Yet I never saw anyone recognize the somewhat gaunt, stooped figure who passed by, the chief justice of the United States.
Such was the shadowy, enigmatic man John A. Jenkins set out to understand and reveal in his highly readable biography of the chief justice—only the 16th—a position that has shaped our lives and destiny, says Jenkins, as much as any president or leader of Congress.
Then why is it that Rehnquist left little imprint in public or legal circles despite 33 years on the Court, nearly 19 of them as chief justice? Jenkins suggests the answer may be in the nature of the man, whose story he tellingly titled The Partisan.
Rehnquist was a person of contradictions. He led Court employees in Christmas caroling, was addicted to poker gatherings and office pools, and would throw his head back in a broad, toothy laugh. Yet Jenkins, examining Rehnquist like some Hamlet fingering the skull of Yorick, writes that behind that “public mask of jollity” was a “brooding private man,” a “chameleon,” who never relented in his iconoclastic, partisan’s mission to imbue the Court with a deep conservatism favoring government power over individual rights.
What made Rehnquist tick? Jenkins, who did a remarkable—and rare—interview with the justice in a 1985 profile in The New York Times Magazine, provides a tantalizing clue. Among the 13,000 pages of documents he reviewed was a 2003 letter Rehnquist wrote to a grandson in which the chief justice proudly recalled his fifth grade assignment to memorize a poem. His choice: “Horatius at the Bridge.”
In many ways Jenkins, a long-time legal affairs reporter and president of CQ Press, is no less a partisan than his subject. While eschewing a case-by-case examination of Rehnquist’s opinions, he writes that “Precedent and legal argument interested [Rehnquist] barely at all.” He asserts that Rehnquist was motivated by “a sort of inspired legal nihilism.” Says Jenkins, “If you were a homosexual, a racial or religious minority, a woman, an alien, an accused criminal, or someone facing the death penalty, you were not going to get Rehnquist’s vote.”
Rehnquist enlisted “sheer cleverness,” writes Jenkins, “in laboring to turn back the clock.” The claim may not be unwarranted. Case in point: Rehnquist’s jaw–dropping disingenuousness in General Electric Co. v. Gilbert (1976), in which he cobbled together six votes for the remarkable proposition that the omission of pregnancy benefits from a company’s employee health care plan was not gender discrimination since men and women alike were denied sick leave for pregnancy.
What accounts for such callousness in a justice who was not otherwise uncaring about the people around him? That is more than Jenkins can explain. Rehnquist had an uneventful childhood in suburban Milwaukee, growing up in a staunchly conservative, anti-New Deal family, like most of the people he knew. One childhood friend recalled that “[their] parents would listen to FDR on the radio, gnash their teeth and turn the dial to [anti-FDR radio priest] Father Coughlin.”
Jenkins attributes Rehnquist’s constitutional development to the influence of Stanford University professor Charles Fairman, “a darling of the political right,” who insisted that the Bill of Rights did not apply to the states and who railed against infringement by the central government. Rehnquist wrote in a master’s thesis at Stanford that minorities had no inherent moral or legal right to be free from discrimination.
That hardening, coupled with Rehnquist’s lifelong reluctance to seek middle ground, was the key to his success—and failure—according to Jenkins.
When Richard Nixon plucked Rehnquist from obscurity in the U.S. Department of Justice at the suggestion of his counsel John Dean, the president is heard on a White House tape recording telling Attorney General John Mitchell, “Be sure to emphasize to all the southerners that Rehnquist is a reactionary bastard, which I hope to Christ he is.” It was the reason Rehnquist was chosen.
Nonetheless, the “Lone Ranger,” as his clerks dubbed him, was marginalized by his unyielding conservatism, in Jenkins’ view. It negated Rehnquist’s ability to influence the outcome of cases. During his tenure Court watchers described a “Brennan Court,” and later an “O’Connor and Kennedy Court,” but seldom a “Rehnquist Court.” True, nine federal statutes were invalidated in whole or in part on federalism grounds between 1995 and 2001, the few years some might call a “Rehnquist revolution.” But Jenkins notes that no major federal program got the ax, and the result was “decidedly less than world-shaking.”
If there is any moral to the story of Rehnquist’s astonishing (at least to Jenkins) rise, it is to affirm the importance of being in the right place at the right time. Rehnquist obtained a clerkship with Supreme Court Justice Robert Jackson, in no small part because he became available at midterm when Jackson feared his one and only clerk was falling behind. Thereafter, he gravitated to Phoenix in search of warm weather. He fell in with the Barry Goldwater crowd. When Goldwater’s surrogate to the Nixon presidential campaign, Richard Kleindienst, came to Washington to be the number two man at the Justice Department, he brought Rehnquist with him.
It culminated with an almost comical, The Perils of Pauline dash by the White House in 1971 to find a High Court nominee in time for a promised TV announcement. When two seats opened on the Supreme Court and Senator Howard Baker vacillated at the last moment to being nominated for one of them, President Nixon turned to a man he had only met once, the man he had famously referred to as “Rehnchburg” in an Oval Office tape recording. In Jenkin’s words: “Right place. Right time. Luck. Pluck. Fate.”
That afternoon rumors reached the Justice Department press room that the president would name former ABA president Lewis Powell Jr. to one of the two seats, and perhaps Rehnquist to the other. A Powell nomination seemed plausible. The mention of Rehnquist, an assistant attorney general for the Office of Legal Counsel, seemed more likely to be humorous buzz generated by his staff.
Rehnquist was in the kitchen of his Virginia home when I reached him by phone. “You’re not going to believe this,” I said, with a laugh in my voice. “Now they are even mentioning your name for the Supreme Court.” I thought Rehnquist would get a kick out of knowing he figured in the pre-announcement chatter.
“I can’t talk about it,” Rehnquist replied.
“Oh, no,” I groaned, still believing it was unlikely (and, if it wasn’t, I had just committed a monumental faux pas). Rehnquist said he had to go. Three hours later, I watched him standing at the president’s side on television.
At his confirmation hearing, I recall thinking that, at age 47, this man would be on the Court for the rest of the century. He surpassed it. He remained on the Court until 2005. Jenkins implies Rehnquist hung on, even through his terrible decline from cancer, because there was nothing else that interested him after the death of his wife in 1991. And, of course, to pursue his partisan’s mission.
I hope there was more to it than that. Jenkins says little about the institutional tug that occasionally draws the justices out of character. In Rehnquist’s case, it was his 2000 opinion upholding the constitutionality of Miranda after years of trying to undo it.
Jenkins suggests that Rehnquist had only the workaday objective of preventing the chaos that might have followed from abandoning procedures to which the police and public had become accustomed. He says it “actually comported with Rehnquist’s law-and-order credo in some way.”
But is that all there was? After decades of belittling stare decisis, Rehnquist wrote that the principles of stare decisis “weigh[ ] heavily against overruling [Miranda] now.” He said “the warnings have become part of our national culture.”
The result was to put the Court above partisanship. Any other decision would have made all of the Court’s pronouncements seem transitory.
That is why I am unconvinced by the book’s concluding assertion that Rehnquist will live on in the chief justice who succeeded him, and who was once his clerk, John Roberts. “The Roberts Court is Rehnquist’s true legacy,” says Jenkins, “doctrinaire, predictable, road tested.” In his view, Roberts’ momentous vote upholding President Obama’s health care law was little more than a vehicle to eviscerate Congress’s commerce clause power while tolerating the law as a humdrum exercise of its taxing authority.
If that is so, then Roberts will surely shrink in stature by Jenkins’ own yardstick.
I prefer to think that Roberts wanted to avoid the kind of unconciliatory path that diminished Chief Justice Rehnquist’s influence, and that Roberts already had learned the lesson of Jenkins’ cautionary tale about the consequences of excessive partisanship.
Journalist Carl Stern covered the U.S. Supreme Court and the U.S. Department of Justice for 26 years.