Category: Legal Commentary

A review of Curtis Wilkie’s new book about Mississippi trial lawyer Dickie Scruggs, ‘The Fall of the House of Zeus: The Rise and Ruin of America’s Most Powerful Trial Lawyer.’ It has a confusing cast of characters and offers way too much information. Worse, its author’s bias toward his subject, who is a friend, shows everywhere, particularly in Wilkie’s attempt to portray Scruggs’ banal criminal misconduct as tragedy.

‘The Fall of the House of Zeus: The Rise and Ruin of America’s Most Powerful Trial Lawyer’

by Curtis Wilkie

Harmony, 400 pp., $25.99

Dickie Scruggs, in his heyday, was one of the most powerful trial lawyers in America. From his Mississippi-based law offices, he aggressively challenged Big Tobacco, asbestos companies and some of the largest corporate interests in America in enormous class-action lawsuits, raking in millions in legal fees along the way.

A brother-in-law of Trent Lott, the former U.S. Senate majority leader, Scruggs was well connected in Southern politics and seemed invincible. He spent lavishly on yachts, vacation homes and private jets. Ultimately, though, his empire collapsed when he was convicted and sent to jail for conspiring to bribe a Mississippi state court judge in 2008.

In “The Fall of the House of Zeus,” Curtis Wilkie, professor at “Ole Miss” (the University of Mississippi), tells the story of Scruggs’ rise and surprising fall. Although a revealing tale of corruption, the book is significantly burdened by several flaws.

First, Wilkie seems unable to tell the story without introducing approximately 700 characters, each with a short biographical sketch (offered for no apparent purpose). This leaves the reader gasping for breath and wanting to reach for a pencil to try to outline all the relationships and sort out which little subplot is or isn’t significant or meaningful to the larger morality tale. To say that the narrative thread is lost would be a vast understatement. The editors here surely should have been given some strong coffee and encouraged to use the red pens they were given when hired.

Perhaps more significantly, despite Wilkie’s best efforts to portray Scruggs’ legal trouble as a Greek tragedy, it falls just a bit short. It’s indeed a shame that Scruggs attempted to bribe a state court judge to subvert justice and went to jail as a result, but this is hardly what most would consider a tragedy. It might be better characterized as what we sometimes call “justice.” Wilkie, who candidly admits that he is close to Scruggs, is unable to separate himself from his friend and tells the story from the most favorable viewpoint for his subject – damning almost everyone else as biased, unfair or partisan. Wilkie, of all people, should have known better: History at short range is dangerous, and this is a classic example.

Finally, Scruggs’ misconduct is indeed offensive, but it’s nothing more than obviously stupid, not to mention criminal, misbehavior. Sometimes legal ethics can be complicated or arcane, but any schoolchild can identify an effort to bribe a judge as wrong. The more obnoxious misconduct here is what was legal. The book is crammed full of conniving, snarky lawyers cutting deals to divide millions of dollars of legal fees from class actions, then bickering among themselves, suing each other and generally acting like spoiled children squabbling over money.

But that’s all legal and, at least to Wilkie, apparently normal behavior. It’s not a pretty picture. But in that context, it’s hardly a surprise that Scruggs found the temptation irresistible to weight the scales in his favor. Wilkie may have intended the reader to sympathize with Scruggs. Revulsion is the more likely, if unintended, result.

Yale Law School professor’s suggestion for monitoring election-system integrity hits some marks, misses others.

‘The Democracy Index: Why Our Election System Is Failing and How to Fix It,’

by Heather K. Gerken

Princeton University Press, 181 pp., $24.95

Sometimes seemingly little ideas can have a big impact.

In “The Democracy Index,” Yale Law School professor Heather K. Gerken proposes that states and local municipalities be ranked based on how well they run their election systems. Such a “democracy index” would evaluate the ease with which voters can register, how long voters have to wait in line to vote, how many ballots are cast but not counted and similar considerations.

Gerken argues that such a ranking – similar to the U.S. News & World Report college rankings – would provide an incentive for state and local governments to implement reform that has, she argues, been stalled by partisan gridlock and parochial local interests.

It certainly can seem like our electoral system is troubled. In 2000, George W. Bush was declared to have been elected president despite the fact that his opponent, then-Vice President Al Gore, received more votes nationwide. After weeks of litigation involving scores of lawyers, the outcome was decided by the U.S. Supreme Court.

In 2004 it was almost worse. In addition to widespread problems in Ohio, the Washington gubernatorial election was decided only after two recounts and months of litigation. And the 2008 U.S. Senate election in Minnesota sparked the largest recount in American history, followed by the longest and most expensive election contest, which demonstrated that several hundred of absentee ballots for both candidates had been improperly rejected.

Gerken argues that our electoral system is flawed, but only in close elections do the flaws become apparent. Moreover, she contends, because of partisan interests, reform efforts often fail. She suggests that ranking states or counties on how well elections are run will provide an incentive for reform.

While a “democracy index” could be helpful, it’s not clear that Gerken has properly identified either the problem or the solution.

For starters, most election administrators work hard to implement improvements every cycle. But the American electoral system largely depends on senior-citizen volunteers working long hours with impatient voters in crowded polling places. Ranking states or counties isn’t going to change that or the fact that, in every election, errors will inevitably occur. That’s not caused “localism” or “partisanship.”

Moreover, most elections are conducted fairly and accurately. Could they improve? Of course – just like every other governmental institution. Long lines, unreliable machines and improperly rejected ballots are unacceptable in any fair system, but those flaws are hardly a secret: they are front-page news and that publicity is far more likely to put corrective pressure on election administrators than being ranked 37 instead of 28 in a composite index of electoral performance.

While Gerken’s index is unlikely to hurt, it’s a proposal better suited for an op-ed than a whole book. It’s difficult to imagine how she could drag out the discussion for 142 tedious pages (not counting footnotes).

Still, it’s a good idea. Even if it’s a small one.

‘Claim of Privilege,’ a new book by Pulitzer Prize-winning reporter Barry Siegel, chronicles the story of a fatal 1948 Georgia plane crash; the legal battle of the families of the dead to get the truth about its cause; and how their fight has affected the Bush administration’s efforts to cloak its ‘war on terror’ strategies in secrecy.

‘Claim of Privilege: A Mysterious Plane Crash, a Landmark Supreme Court Case, and the Rise of State Secrets’

by Barry Siegel

Harper, 384 pp., $25.95

On Oct. 6, 1948, an Air Force B-29 bomber crashed in a rural field in Waycross, Ga., after suffering a catastrophic engine fire. The plane was loaded with secret navigational equipment, and carried not only an Air Force crew, but three civilian engineers. Only four crew members survived the crash; all of the civilian engineers died.

Their widows filed a lawsuit against the government and sought copies of the Air Force accident investigation report to support their claim. The government, however, refused to disclose it, claiming it would reveal “state secrets” and that producing it would damage “national security.”

Sound familiar? It should. This was the landmark case, U.S. v. Reynolds, that established the state-secret doctrine in the Supreme Court that has been invoked with increasing frequency by the Bush administration to cloak its activities in the “war on terror.”

The government’s argument was rejected by the trial court, which insisted that the government submit the report for examination by the court. But the U.S. Supreme Court reversed that decision, holding that the government could unilaterally withhold relevant material, without any court inspection, upon the assertion of the “state secret” doctrine.

Ironically, as it turned out, the Reynolds case itself never did involve anything even remotely resembling “state secrets.” When the accident report was declassified in the 1990s, all it contained was a dry summary of glaring negligence: engine maintenance orders (designed to prevent the fire) that had been ignored, negligent aircraft operation by the pilots, and a failure even to train the civilians on escape procedures or parachute operation.

In early 2000, Judy Palya Loether, whose father had died in the crash, stumbled upon a copy of the declassified Air Force report on the Waycross accident. Reviewing it, she was stunned to discover not only the government negligence, but the false assertion of a “state secret.” Outraged, she searched out Susan Brauner, who – like Loether – lost her father in the crash, and an elderly Patricia Reynolds, who lost her husband.

In “Claim of Privilege,” Barry Siegel tells the story of the effort to rectify the misleading assertion of the state-secret privilege. Siegel, a Pulitzer Prize-winning correspondent for the Los Angeles Times, unwinds the story like a mystery novel, with vivid writing that deftly illuminates the legal principles without unnecessary legal jargon.

Unfortunately, by the time their lawsuit was filed, national security concerns had again reached fever pitch in the wake of 9/11, and challenges to the government’s national-security claims were no more welcome than at the height of the Cold War, when the Reynolds case was decided. The lawsuit to reopen the case was rejected by the trial court and a three-judge Court of Appeals panel that included the soon-to-be-elevated Judge Samuel Alito.

But on another level, the lawsuit achieved a larger goal by revealing the frivolous “national security” claim upon which Reynolds was based. As Seigel notes, “they had never aimed to repeal Reynolds or attack the whole edifice of national security law. They’d wanted only to call out the abuse of trust. … In so doing, they had changed the terms of the argument. Now when government lawyers waved the Reynolds flag, judges had to consider its genesis.”

It’s ironic that, at the very time when judicial independence is most needed – at the height of public hysteria, in times of war, and when the nation is challenged with vicious terrorist attacks – our courts appear to fail us most regularly, authorizing Japanese internment during World War II, for example, or condoning overzealous government secrecy during the Cold War (as in Reynolds).

But then, the real guardians of constitutional liberty are not the courts, but vigilant American citizens willing to stand up to challenge their own government. These surviving family members may not have won their day in court, but surely made a larger point and one by far more valuable.

Republicans have won five of the past seven presidential elections, a conservative tide that swept through the re-election of George W. Bush in 2004. Yet until recently the Supreme Court remained curiously centrist, with even seemingly conservative nominees yielding to more moderate positions.

In “The Nine: Inside the Secret World of the Supreme Court” (Doubleday, 369 pp., $27.95), CNN senior legal analyst and New Yorker staff writer Jeffrey Toobin provides a history of the modern Supreme Court and the impact of its changing composition. Based on interviews with the justices, the book provides a fascinating inside look at the most secretive branch of government. Toobin writes beautifully, and the book is impossible to put down.

Toobin steps through the confirmation battles of the 1980s and 1990s, from Robert Bork’s failed nomination (as a result of his incendiary writings) to the soap-operalike confirmation hearings over Clarence Thomas. It seems almost quaint to remember a time when a nominee could be rejected for being too conservative.

The most arresting portion of the book, however, is its discussion of the court’s infamous 5-4 intervention in the 2000 presidential election, in Bush v. Gore. The court’s veneer of political independence was stripped away by the ill-concealed enthusiasm with which the court intervened. Justice David Souter, who dissented, was so disgusted that he considered resigning. As Toobin writes, Souter viewed his colleagues’ actions as “so transparent, so crudely partisan that Souter thought he might not be able to serve with them any more.”

The irony of the intervention is striking. Conservative activists long have insisted on restraint from federal interference with state power. Yet no area is more firmly committed to the states by the Constitution than the “time, place, and manner” of state and federal elections. Every state has a process for recounts, for determining voter intent, and, ultimately, for contesting the outcome. Disputed elections are not uncommon in history; federal intervention is.

Yet that is precisely what the court did in Bush v. Gore, leading to widespread disrespect for the court and what Toobin and others, including many constitutional lawyers, have characterized as its hasty, poorly reasoned opinion. Toobin calls the decision “one of the lowest moments in the court’s history.”

Washington state could have shown the way. The 2004 gubernatorial election was stunningly close, with Christine Gregoire edging out Dino Rossi by only 129 votes out of 2 million cast. Instead of federal intervention, Rossi’s election contest proceeded under state law, with a full trial after which the court definitively rejected Rossi’s challenge. (Full disclosure: I represented the Washington state Democrats in that trial).

The Supreme Court’s intervention in the 2000 presidential election caused years of widespread questions over the legitimacy of the election . By contrast, after a full hearing on the 2004 gubernatorial election, Gregoire took office without the same sort of pervasive legitimacy questions .

Toobin carefully chronicles the vacancies filled by President Bush in the past two years and the window those nominations have on the ascendant power of “movement conservatives.”

From the outset of the Reagan revolution, steadfastly conservative lawyers formed the influential Federalist Society to promote conservative political values in the judiciary, including expansion of executive branch powers, relaxation of the separation between church and state, and intent to overturn the Roe v. Wade abortion decision. After watching “conservative” appointees such as David Souter and Anthony Kennedy turn centrist, these activists made sure they didn’t repeat the mistake.

Indeed, the surprise nomination of White House Counsel Harriet Miers failed precisely because she was insufficiently conservative for the conservative elite. With John Roberts (who replaced Chief Justice William Rehnquist), whose name appeared in Federalist Society membership lists, and Samuel Alito (who replaced Justice Sandra Day O’Connor), a longtime Federalist Society member with proven conservative credentials, no such questions exist. And, as Toobin’s concluding chapters on the 2006-07 term note, they have delivered with a vengeance.

Over the long run, America gets the Supreme Court it deserves. Having elected conservative administrations for 20 of the past 28 years, the only real surprise is how long it took for the court to definitively turn right.

‘Sacco & Vanzetti: The Men, the Murders, and the Judgment of Mankind’

by Bruce Watson

Viking, 448 pp., $25.95

Few criminal trials in American history have left such a record of recrimination and finger-pointing as the infamous trial of Nicola Sacco and Bartolomeo Vanzetti.

Sacco and Vanzetti, two Italian immigrants, were charged with the murder of two payroll clerks on April 15, 1920, in Braintree, Mass. The brazen daylight murder took place only steps away from busy factories filled with hundreds of potential witnesses. The gunmen shot the clerks, collected the payroll cash, and then roared away in a large black sedan with white window drapes fluttering amid the billowing dust. Less than three weeks later, Sacco, an edge trimmer in a shoe factory, and Vanzetti, a fish peddler, were charged with the murders.

Both were carrying fully loaded pistols when arrested and neither provided fully plausible explanations for what they were doing that evening. They were, admittedly, anarchists who supported a shadowy movement intent on destabilizing the United States. But the evidence against them was weak and the trial an embarrassment.

Curiously, the trial occurred at a time with compelling similarities to the modern day. Then, as now, there was widespread fear of terrorism – and with good reason. Anarchists (we would call them “terrorists” today) regularly bombed public squares and subway stations.

Similarly, like today, conservative hostility toward immigration was rising, leading Congress in 1924, with the support of the Ku Klux Klan and the American Legion, to slash immigration quotas. Although it seems nearly unimaginable now, the tide of anti-Italian fever was running high in America in the 1920s, with fears of Italian gangsters and uncontrolled violence convulsing the country.

It is difficult to imagine a context less suited for a dispassionate, fair trial. And few would describe the resulting trial as either “dispassionate” or “fair.”

In “Sacco & Vanzetti: The Men, the Murders, and the Judgment of Mankind,” Bruce Watson does a terrific job of reviewing the historical record of the trial, drawing compelling portraits of the principals, their families, and partisans on both sides of the bitter controversy. Drawing on untapped legal archives, this is the first full-length study of the case in over 30 years. It was worth the wait.

Judge Webster Thayer, a stern New England reactionary, presided over the trial with barely concealed hostility. Sacco and Vanzetti were defended by Fred Moore, a flamboyant California lawyer oblivious to his irritating effect on the judge.

The defendants were convicted on July 14, 1921, but the case lingered for more than six years while appeals and pleas for clemency ran their course. As Justice William O. Douglas commented decades later, anyone reading the trial transcript would “have difficulty believing that the trial with which it deals took place in the United States.”

After Thayer denied the defendants’ motion for a new trial, he commented to a friend at a Dartmouth football game, “Did you see what I did with those anarchistic bastards the other day?”

Tanks and Marines defended American embassies abroad as hundreds of thousands marched in protest in every major world capital. As Watson notes, the trial was freighted with much larger implications: “In the judgment of the world, one American city would stand for America itself, one court case for the universal dream of fairness, two men for all men staring into the naked face of power.”

Sacco and Vanzetti were executed on Aug. 23, 1927. Over 100,000 people streamed through the funeral home after the execution to pay their respects.

For 80 years, the acrimonious table-pounding debate has continued over the case. Watson’s careful study is unlikely to definitively settle that dispute, but does provide a welcome clear-eyed overview of one of the most disappointing chapters in American judicial history.

“Ipse Dixit: How the World Looks to a Federal Judge” by William L. Dwyer should be required reading for every new lawyer admitted to the Washington State Bar Association.

Judge Dwyer was a legend both as a trial lawyer and as a federal judge in Seattle. He was appointed by President Reagan as a U.S. District Court judge. Although his appointment was delayed for more than a year over concerns raised by conservative senators, he won confirmation and served from 1987 to 2002. From major league baseball, to the timber wars over the spotted owl, to federal term limits, Judge Dwyer was at the center of many of the most important controversies of the past 30 years.

In the months before his death in 2002, Judge Dwyer compiled this collection of speeches he delivered during his years as a federal judge and even wrote the preface for “Ipse Dixit” (University of Washington, 176 pp., $24). The title is Latin for “he himself said it,” typically used for unsupported assertions. He originally collected these materials for his grandchildren, and it was his widow, Vasiliki Dwyer, who brought them forward for publication. Like reading a long-delayed letter from an old friend, it’s a wistful experience to read the preface, followed by a series of thoughtful essays.

The 15 speeches included in this volume span the years 1978-2002. Judge Dwyer addresses, with wit and insight, topics ranging from international law to lawyer professionalism, his self-effacing humor on vivid display throughout. Accepting an award in 1992 to the prestigious “Order of the Coif,” typically an honor bestowed on the brightest law students, he commented, “to those of the class of 1952 who made Order of the Coif the hard way, and who might think this award is unjust, I can only point out that you have had a handsome certificate on your wall for forty years in a spot where I have had to make do with an old photograph of a fishing trip.”

Judge Dwyer was also an outstanding trial lawyer who took pride in his work and saw lawyers as an essential part of a democracy, critical to the preservation of liberty in a free society.

His 1993 speech to the Federal Bar Association on ethics in the practice of law is a careful, logical call to the practical value of civility and the debasing effects of extremism in the courtroom. He called it one of the “basic truths” of law practice: “that the best rewards come to those who are not just capable but ethical.”

Judge Dwyer’s long-standing ties to the Northwest and to Seattle are evident throughout the collection. His fond memories of hiking through the North Cascades and involvement in some of the most significant cases of the past 40 years – first as a lawyer and later as a judge – are sprinkled throughout the book.

In 1998, Judge Dwyer took senior status, a form of semi-retirement for federal judges. In his speech to the Federal Bar Association that evening, he recalled his warm reception from the bar after he was (finally) confirmed, then observed: “Tonight’s greeting seems even warmer. I can only assume that the bar is even happier about my departure than it was about my arrival.” Nothing could be further from the truth.

In 2002, only months before the judge died, his daughter Joanna delivered Judge Dwyer’s last speech, on his behalf, on the value of pro bono legal work for the poor – legal services provided free of charge to those without the means to pay. It’s a fitting end piece for the collection, touching not only on the role of legal services in the cause of justice but also on the critical contributions of lawyers, in big firms and small, to filling that need.

Meade Emory, a University of Washington law professor, saw the project through to completion, contributing explanatory end notes, a warm remembrance in the foreword, and an interesting compilation of articles written by and about Judge Dwyer. Stimson Bullitt contributed a foreword for his close friend.

Inspiring, thoughtful and beautiful, this collection of essays is a gem.

‘The Restless Sleep: Inside New York City’s Cold Case Squad’

by Stacy Horn

Viking, 320 pp., $24.95

Murder is different from all other crimes. The crime of murder is so abhorrent that there is no time limitation on murder prosecution. Even 50 years after a killing, a murderer – if he or she is caught – can still be tried, sentenced and convicted. But, unfortunately, the catching is often the hard part. There are thousands of murder cases in New York City that go cold, remain unsolved and are pushed into the far corners of dusty evidence rooms.

The problem is that if a murder is not solved within the first few days, the chances are good that it never will be solved. As time passes on, memory fades, evidence disappears and the trail, if one existed, evaporates. As new cases pile up, demanding attention, the older unsolved cases get pushed aside and, eventually, forgotten.

New York City tackled this problem by creating a elite team of detectives with the responsibility for chasing such “cold cases.” In “The Restless Sleep: Inside New York City’s Cold Case Squad,” Stacy Horn tells the story of the Cold Case and Apprehension Squad, its formation and a handful of its successes.

In New York, since 1985 alone, there are 8,894 unsolved murders. That’s 444 murders a year; 37 a month; more than one every day. These are awful, brutal crimes for which the perpetrators remain entirely free.

Horn tells the story of four of these cases, from the crime to its resolution, years later. These are not delicate stories. Linda Leon and Esteban Martinez, for example, were murdered just 10 days before Christmas in 1996. They had been brutally tortured and then murdered while their three young children huddled in another room, distracted by an accomplice.

Police officer Ronald Stapleton died in early 1978 after he stumbled onto the scene of a robbery in progress while off duty. Beaten so badly he could hardly move, he was shot with his own gun and then his eye was torn from its socket with a meat hook. Christine Diefenbach died early the morning of Feb. 7, 1988, just 14 years old at the time. She was fetching milk for her family but was found hours later, dead, at the top of a small hill near railroad tracks.

Some of these cases are even older. Jean Sanseverino was 26 years old on March 8, 1951, when she was found strangled. When the cold case squad tackled the case, the file had not been opened for 20 years.

In every case, the original homicide detectives ran into a wall during the original investigation. Leads failed to pan out. Witnesses dispersed or failed to remember key facts. For a million reasons, or none at all, the crime simply couldn’t be solved.

But then the cold case squad, a curious group of part-historian detectives, began poring through the notes, re-examining the evidence and re-interviewing witnesses, searching for what all of the detectives before had missed. And surprisingly, in at least these four cases, they resolved the murders, found the murderers and – decades after the bad guys thought that they had gotten away with it – slapped the cuffs on them.

It’s satisfying, but of course only scratches the surface. For all of its success, the squad has barely dented the backlog. And for each of these success stories, there are hundreds of other cases that remain cold and unsolved.

“The Restless Sleep” tells an interesting story but is unfortunately flawed by Horn’s tough-guy approach to her writing style. At times thoughtful and lively, the book is too often marred by breathless first-person narratives or the grunting vernacular of street cops.

Horn provides a short statistical summary of homicide rates and case resolution, but provides precious little comment on the very phenomenon she describes. Why so many unsolved murders? Why such limited success? These are compelling, even stunning, success stories, but how can we capitalize on this success? Like the murders themselves, those mysteries are left cold and unsolved by this otherwise entertaining true crime expos

‘Executioner’s Current: Thomas Edison, George Westinghouse, and the Invention of the Electric Chair’

by Richard Moran

Alfred A. Knopf, $25

On Aug. 6, 1890, William Kemmler became the first person to be executed in the newly invented electric chair. At a time when electricity was poorly understood and not widely available to the general public, the introduction of the electric chair was announced as an advancement over hanging as a more humane method of execution. Whether death in the chair is actually less painful or more humane has been debated ever since, starting with Kemmler’s own botched execution.
But there’s a story behind the electric chair. At the end of the 19th century, two emerging power companies were grappling over the emerging market for electrical power.

Thomas Edison’s direct current took an early lead but was rapidly overtaken by the advantages of alternating current offered by his competitor, Westinghouse.

In “Executioner’s Current,” Richard Moran carefully details Edison’s remarkably sleazy efforts to discredit alternating current (and Westinghouse) by developing the electric chair, covertly lobbying New York to embrace the new technology and – most important – utilizing alternating current to operate the chair. Edison then sought to disparage alternating current by dubbing it the “executioner’s current,” far too dangerous for common use.

Westinghouse took up the challenge, funding death-penalty litigation to challenge the new method of execution as unconstitutionally cruel and unusual. Both sides cloaked their less-appealing commercial interests.
Although Edison won the legal battle and the electric chair was adopted by numerous states, he lost the commercial fight as alternating current overtook direct current and became the U.S. standard for electricity. Edison’s underhanded efforts and his role as the father of the electric chair have largely been overshadowed by his contributions as the classic American entrepreneurial inventor.

“Executioner’s Current” aims to set the record straight. As this thoughtful volume attests, Edison left behind a deadly legacy: More than 4,300 people have been executed in the electric chair in the United States, more than all other methods of execution combined. And the debate over the mechanics of the death penalty still rages.

‘In the Hands of the People: The Trial Jury’s Origins, Triumphs, Troubles, and Future in American Democracy’

by William L. Dwyer

Thomas Dunne Books, $24.95

The trial jury, the hallmark of the American justice system, is increasingly under attack as out of control, dangerously vulnerable to manipulative trial lawyers, and, all too often, the source of skyrocketing damage awards. Commentators from across the political spectrum have demanded, with increasing urgency, various reforms to eliminate or limit the role of a jury.

U.S. District Judge William Dwyer begs to differ.

In the just-published “In the Hands of the People,” he offers a spirited defense of the jury-trial system.

The book surveys the history and purpose of the jury system, addresses the principal arguments for its demise and offers thoughtful proposals to strengthen, not abolish, the role of the trial jury.

Dwyer is no stranger to the process. As a Seattle trial lawyer, he handled some of the Northwest’s most significant cases – including the lawsuit against Major League Baseball that resulted in the creation of the Mariners. He gained a reputation as one of the best trial attorneys in the state.

Appointed to the federal bench in 1987, Dwyer has since handled some of the most significant cases of the past 15 years: protecting spotted-owl habitat and restricting logging on a public lands; ruling that Metro’s political structure was unconstitutional; and striking down Washington’s term-limits restrictions. And he has presided over hundreds of jury trials and worked with thousands of jurors, witnesses and lawyers, and earned an unparalleled reputation as one of the most outstanding federal judges in the nation.

Dwyer begins with a review of the origins of the jury as an alternative to earlier methods for resolving disputes, such as trial by battle, torture, oath-swearing contests, or other medieval forms of dispute resolution.

From its English common-law origins, the jury slowly gained independent power and, when transplanted to the American Colonies, became a key check against governmental tyranny and an important and unique aspect of the American participatory democracy.

The latter half of the book surveys the principal objections to the jury system and, point by point, dismantles them as largely unsupported by evidence, contradicted by the actual record in specific cases, or hinged primarily on isolated, but highly publicized, aberrations.

There are significant problems with the American justice system, Dwyer acknowledges, quoting Ambrose Bierce’s famous definition of litigation as a process into which one enters as a pig and exits as a sausage.

These include long delays until trial, unimaginable expense, overloaded courts and endlessly contentious counsel – but not one of these faults can be blamed on the jury and most can, and should, be addressed by reforms elsewhere.

Still, the judge concedes reforms should be taken, not to limit juries, but to strengthen them. His proposals range from modest to striking.

To increase the diversity of juries, Dwyer would increase compensation for jury service and restrict opportunities to evade service (thus increasing participation of the poor and the well off).

To streamline jury selection, he would have most questioning conducted by the trial judge, with only limited follow-up questions by the lawyers.

He would eliminate notoriously disruptive midtrial sidebar conferences between the judge and lawyers, strictly budget and control the length of trials, increase the use of court-appointed experts, encourage juror participation through questions of witnesses and note-taking and translate arcane “legalese” favored by obtuse lawyers into plain English more readily comprehensible to the average juror.

Perhaps most controversially, he would limit or eliminate the peremptory challenge, the right of a party to eliminate a certain number of potential jurors without cause or explanation.

Dwyer’s proposals are not all new or novel and don’t purport to be. But, built on a solid foundation of history and experience, his suggestions offer thoughtful suggestions to strengthen the role of the jury. Some of these proposals might, and perhaps should, be debated, but it would be a foolish lawyer, judge or litigant who ignored this set of proposals.

In 1670, as Quaker leader William Penn was dragged from the courtroom by the king’s forces and the jury was threatened with prosecution if it did not convict him, Penn called out to the jurors not to “give away your right(s).” From the jury box came the reply: “Nor will we ever do it!”

As Dwyer closes this volume, he urges, “Our response should be the same.

‘Unspeakable Acts; Ordinary People: The Dynamics of Torture’

by John Conroy

Knopf, $26

‘The Good Listener: Helen Bamber, A Life Against Cruelty’

by Neil Belton

Pantheon, $27

Torture is something that happens in other countries, at other times, to other – different – people. Or so most of us want to believe. Unfortunately, it isn’t so.

In “Unspeakable Acts; Ordinary People: The Dynamics of Torture,” John Conroy, a Chicago journalist and author of “Belfast Diary: War as a Way of Life,” explores torture in settings close to home for many Americans: the torture of suspected IRA activists in Northern Ireland by the British, the beatings of Arabs in Israel and the use of electric shock on prisoners by Chicago police. He selected these examples, not because they were the most egregious incidents of torture, but rather because they are not: State-sponsored torture is a depressingly common experience.

Conroy first details the detention of 14 Northern Irish men by the British government in 1971. All of the men were subjected to the same treatment: Their captors placed hoods over their heads, blasted noise at them and forced them to stand leaning against a wall for days at a time. Severe beatings followed any movement. Most were denied access to toilets or food. When the men were eventually released, and the episode revealed, the government denied any “torture” and publicly labeled the victims as “thugs and murderers.”

Conroy next describes the calculated beatings of Arabs in an Israeli village during the Intifada uprising. The Israeli army seized the men from their homes at night, drove them to isolated locations, and systematically beat them and broke their legs. Even the Israeli soldiers left the scene shaken, with several crying. Although the operation was eventually exposed and the responsible officer court martialed, the punishment was relatively light.

Conroy finally focuses on the torture of arrestees by Chicago police through the use of an electrical generator. Although the police denied the practice for years, one of the victims sued and won, revealing the electrical torture and subsequent cover-up.

All of these are offered not as examples of extreme violence, but to show how routine and commonplace – even in our modern world – torture is. Conroy brings us along as he sits down with many of the torturers for coffee, and quietly talks about what they did and why they did it.

Not surprisingly, they see nothing wrong with the behavior, and offer up a variety of excuses for why the torture was necessary to protect the public. It is a time-honored response. Torture, from St. Augustine (who defended the practice), to Aristotle, to the Spanish Inquisition, is often defended on strikingly similar grounds: because the victim is evil and not really “human”; because the victim himself is a criminal and has or will cause even greater pain to innocent people; because others engage in even worse forms of torture; or simply because it is perceived as an effective shortcut to obtaining crucial information.

Conroy surveys societies that condone torture, and notes that the process often begins with the marginalization of a disfavored minority (the Left, the Right, the Arab, the Jew) that is ridiculed, humiliated and ultimately dehumanized to the point that it “finds itself beyond the compassion of the public at large.”

Conroy’s approach, though, emphasizes the banality of torture at the cost of minimizing its frequency and historic and geographic reach. Although he devotes a portion of the book to the history of torture, it is a sidelong glance at best, and does not even attempt to survey the virtual catalog of state-sponsored torture present in history, much less in the modern world.

By contrast, Neil Belton’s recent biography of Helen Bamber, “The Good Listener,” takes the opposite tack by focusing on the victim, not the torturer. Bamber, a 74-year-old activist, has devoted her life to working with torture victims.

Bamber volunteered as a young woman to work with a Jewish Relief Unit in occupied Germany just after World War II. She arrived at the Bergen-Belsen concentration camp soon after the British forces liberated it, and was stunned by the thousands of decomposing bodies, human waste and barely alive survivors scattered like refuse around the camp.

Belton’s fluid and descriptive writing captures this horrific scene and the chaotic years that followed. At least some of the children rescued from the camps were brought to England where Bamber worked with them, attempting to bring them back from the unspeakable horror they had survived.

Bamber thus launched a career of working with torture victims, and fighting torture, around the world. Quiet listening and talking of her own experiences are the tools Bamber employs to salve the wounds of these broken men and women.

As Belton writes, “Fifty years after governments representing most of humanity declared that they rejected `cruel, inhuman or degrading punishment,’ an elderly, formally unqualified woman and her colleagues, working from a row of terraced houses under a railway bridge in North London, hold up a flimsy, necessary barrier against torture.”

Belton’s book is better written than Conroy’s: The writing is more fluid and descriptive, the narrative is fascinating and the attention to detail is captivating. If there is a fault in Belton’s writing, it is the odd and muddled opening chapter of the book, which describes the cold reception British veterans of the surrender of Singapore received on returning home. A far more briskly paced and engaging core lies beyond this opening stumbling block.

Both of these books shed a light on a terrible and unfortunately common aspect of human frailty. Maybe someday we can accurately describe torture as something awful that happened at other times, in other places. But until that day, these narratives shed a necessary, if not welcome, light on this perverse corner of human behavior.