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MEDIA REVIEWS The President’s Counselor: By Bill Minutaglio Reviewed by JAMES W. PAULSEN and JOHN L. QUINN Sometimes a book’s title really does say it all. Bill Minutaglio’s biography of Alberto Gonzales chronicles his rise from humble—actually Humble, Texas—beginnings to his position as the first Hispanic Attorney General of the United States. While his impoverished childhood and rags-to-riches early career are given fair treatment, the book’s focus is on Gonzales’ relationship with the Bush family and his work as legal counselor to George W. Bush. This book’s special appeal to readers of The Houston Lawyer goes almost without saying. Alberto Gonzales’ Houston roots run deep. He grew up just north of the city in a home with no hot running water or telephone, and graduated from Rice University (where he once sold hot dogs at the stadium) after a brief stint in the military and some time at the Air Force Academy. On graduation from Harvard Law School, Gonzales returned to work at Houston’s Vinson & Elkins LLP. That said, the book’s principal focus is on Gonzales’ role on the state and national stage, and justly so. As the publisher’s dust jacket squib accurately puts it: “Gonzales’ unyielding loyalty to George W. Bush—during a time when to call his presidency ‘controversial’ would be an understatement of massive proportions—is a fascinating study in the politics of ambition.” The publishers add, less accurately, that “The President’s Counselor provides never-seen insight into the man whose influence over a very powerful president in very pressing times will undoubtedly impact people here and abroad for years to come.” Minutaglio’s book is rich in detail. But detail does not equal “insight.” The reader seeking insight must sift through the details for clues, aided only marginally by Minutaglio’s sometimes conflicting hypotheses and interpretations. Did Gonzales really have “influence over a very powerful president in very pressing times,” as the dust jacket claims? At one point or another in the book, the reader might reasonably conclude from Minutaglio’s analysis that Gonzales was (1) a loyal foot soldier for the Bush family, willing to “fall on a grenade” (as the book puts it) for the president, (2) a lawyer with a limited brief to provide plausible support for decisions already made at higher levels, (3) a real estate attorney hopelessly out of his depth when dealing with Death Row clemency petitions, international agreements on torture, and civil liberties in general, (4) a front man for a group of super-bright and ideologically committed underlings, or (5) some, all, or none of the above. At the end, Gonzales’ motives, personal values and goals (apart from escaping his family’s poverty) remain a mystery. This is not principally the author’s fault. Bill Minutaglio is an award-winning journalist who has worked at one time or another for the three largest newspapers in Texas and whose two previous books—First Son (a biography of George W. Bush) and City on Fire (the Texas City disaster)—have been well received. For The President’s Counselor, Minutaglio conducted extensive archival research and interviewed more than 200 people, from a former member of the Cabinet to a childhood next-door neighbor. But Gonzales himself declined to be interviewed. To the reader, that reluctance ultimately is not surprising. While The President’s Counselor leaves many things opaque, the book does paint a clear picture of an enigmatic and extremely reserved man. Gonzales does not share personal information easily. This almost obsessive privacy surely endeared him to high-profile clients and friends such as the Bush family, and at least partly explains Gonzales’ success in life. It surely explains the challenges for a biographer. That said, the reader is left wishing Minutaglio had done more to rise to the challenge. The book has other faults. Though extensively researched, it is not always well documented. Though meticulously detailed for the most part, significant details sometimes are left hanging. For example, Minutaglio says there is “a possibility” Gonzales’ first marriage took place in Colorado, but was for some reason later recorded in Texas, and that his older brother “maybe had died in some tragic, mysterious way.” These and other potentially important facts surely could have been nailed down more thoroughly. Minutaglio’s writing style is engaging, and the book is for the most part an easy read. There is, however, an irritating tendency toward repetition and melodrama. And there is the occasional oddball comment. For example, Minutaglio prefaces a discussion of Gonzales’ Air Force Academy days with the comment: “Presuming Gonzales’ government records to be accurate.” But nothing suggests the records are not accurate, or why it would matter much if there were errors. One wonders whether Minutaglio was trying to conjure a subliminal reference to the Bush/Vietnam Air National Guard record brouhaha. Warts and all, The President’s Counselor seems reasonably balanced and worth the effort of reading. The book ends in February 2005, with Gonzales’ confirmation as Attorney General. Minutaglio’s preface promises a second volume; events of the past year suggest he will have plenty of material with which to work. Professor James W. Paulsen teaches at the South Texas College of Law. He is a member of The Houston Lawyer Editorial Board. John Quinn is a second-year student at the South Texas College of Law. Getting Away with Murder on the Texas Frontier: Notorious Killings & Celebrated Trials By Bill Neal Reviewed by Don Rogers Getting Away with Murder on the Texas Frontier presents an interesting account of numerous murder cases that occurred on the Texas frontier west of Fort Worth and north of Abilene during the period from the end of the Civil War into the early 1930’s. As the title suggests, in these murder cases, seemingly guilty individuals, who were not lynched but were prosecuted, frequently avoided conviction, or when convicted, any consequences from it. The book suggests that these killers avoided justice at the time for essentially three reasons. First, assorted conditions under which prosecutors practiced law during the first decades of the emerging criminal justice system on the frontier hampered their ability to secure convictions. These conditions included the following. Few frontier lawyers and judges had any formal legal training. Most lawyers at the time became such through apprenticeships with established practitioners. Prosecutors were not only frequently ill-trained and inexperienced, but were also underpaid, and in some instances, actually had to live in the courthouse to make ends meet. “Consequently, in most murder (and livestock theft) cases, a prosecutor still wet behind the ears would find himself pitted against a lion of the defense bar—with predictable results.” The lack of modern crime detection methods, scientific evidence, law libraries of any kind in most counties, and trained investigators thwarted prosecutions. The local sheriff, who typically had no formal law enforcement training, was often the only help available for prosecutors. Prosecutors faced a daunting task in finding honest and cooperative witnesses, and then securing their attendance at trial. The society was largely made up of transients. The communication methods and transportation available were at best primitive. Intimidation of witnesses was rampant. Questionable defense tactics were commonplace. A “laissez-faire attitude” about permissible trial practices prevailed among defense lawyers, and it thrived in the absence of organized bar associations and grievance committees. With little fear of adverse consequences, defense lawyers frequently suborned perjury, relied on altered or forged documents, and knowingly misrepresented the facts to courts and juries. On top of all that, juries were commonly credulous, unsophisticated, and gullible. They were susceptible to melodramatic appeals by bombastic defense lawyers, and emotion often trumped evidence. The second reason seemingly guilty persons got away with murder was due to social conditions, including the nature and assorted values of society at large, which at the time and place, favored acquittal in many cases. Frontier society was rough, and its values corresponded. Property, especially livestock, was more precious than human life. “Homicide was considered ‘one of the probable contingencies of ordinary social life.’” Violence, including self-help and lynch-mob justice, was widely accepted as a normal way of life, and depending on the heinousness of the offense, some accused killers never made it to trial. People were guided by the then-existing Old South Victorian code where chivalry and honor were considered more important than human life and killings resulting from insults to honor were viewed as acceptable. Pleas of self-defense were often successful. Third, and finally, even when murder convictions were obtained, they were sometimes without practical consequence, and a number of murderers walked free. Appellate courts viewed all trial errors as harmful, and many convictions were reversed for seemingly trivial reasons. Even when appeals were unsuccessful, pardons were easily obtained for various and sometimes questionable reasons—they were even granted by state officials temporarily acting as governor pro tem in the governor’s absence. Some were forged when they could not otherwise be “lawfully” obtained. In short, the book demonstrates why murder convictions did not come easy on the early Texas frontier, and when obtained, were often without meaningful consequence. The many case histories presented in the book make for entertaining reading, and from a historical perspective, it should be of interest to anyone concerned with the early development of Texas criminal law. Don Rogers is an appellate prosecutor with the Harris County District Attorney’s Office. He is board certified in criminal law by the Texas Board of Legal Specialization, and is a member of The Houston Lawyer Editorial Board. Arbitrary Justice: The Power of the American Prosecutor By Angela J. Davis Reviewed by LINHUYEN PHAM In Arbitrary Justice: the Power of the American Prosecutor, American University law professor Angela J. Davis, a Harvard Law School graduate and former public defender for the District of Columbia, examines the formidable power and vast discretion of the state and federal prosecutors, the most powerful officials in the criminal justice system. Through discussion of powerful real-life stories about individuals caught in the system, Professor Davis demonstrates how the routine, everyday discretionary decisions of prosecutors control the direction and outcome of criminal cases. Professor Davis shows that prosecutors often make the most important of these discretionary decisions, especially in the charging process and plea-bargaining process, behind closed doors and rarely answer to anyone except to other prosecutors. Since more than 90 percent of criminal cases are resolved by way of a guilty plea, many instances of prosecutorial misconduct rarely come to the public’s attention. For example, prosecutors often engage in the unethical practice of overcharging or “tacking on” additional charges that they know they cannot prove to gain more leverage during the plea-bargaining process or make the defendant look “guiltier” if the case goes to trial. Prosecutors also entirely control the plea-bargaining process, and thus the poorer and less educated defendants without adequate family support and resources to challenge the prosecutors’ decisions often end up with less favorable deals. At other times, unlike the district attorney who was disbarred for his handling of the widely publicized case involving Duke University lacrosse players charged with rape, prosecutors routinely do not disclose exculpatory information to defense attorneys and they face no consequences for their action. Professor Davis further notes that most prosecutors with whom she has dealt with during her dozen years of experience as a public defender for the District of Columbia “seemed to focus almost exclusively on securing convictions, without consideration of whether a conviction would result in the fairest or most satisfactory results for the accused or even the victim.” As a result, the arbitrary and unchecked exercise of prosecutorial discretion, even by well-meaning prosecutors, often produces unfair and unequal treatment of similar defendants and victims, usually along race and class lines. Professor Davis argues that because the legal responsibility of prosecutors is not just to represent the state in seeking convictions but to pursue justice, reform of the current system is necessary to guide prosecutors’ exercise of discretion. She demonstrates through in depth analysis that the current rules of professional responsibility and the state disciplinary process for lawyers do not adequately address the function of prosecutors or hold them accountable for misconduct. Similarly, the elective process has not proven effective in holding elected prosecutors accountable to the people they serve. Defense attorneys also cannot be depended upon to challenge the unethical conduct of the prosecutors because, according to Professor Davis, they do not always discover the abuses in the cases they are involved in, nor would they be in the best position to initiate reform efforts because they “must maintain a delicate balance of serving as both adversary and negotiator with the prosecutors as they continue to represent their clients.” Professor Davis offers several proposals to reform the state and federal prosecutorial systems which would involve the prosecutors, the bar, and the general public working together to reduce the arbitrary exercise of prosecutorial function and strengthen the methods of prosecutorial accountability, thereby fulfilling the goal of “doing justice” for all. In sum, this book does not tell the story of good deeds that prosecutors do, nor does it focus on the intentional, illegal practices that some prosecutors engage in. Rather, the book examines how the haphazard, unsystematic and arbitrary legal exercise of prosecutorial discretion contributes to injustices in the criminal justice system and offers proposals for reform. Lawyers and non-lawyers seeking to better understand the workings of prosecutors in the criminal justice system and to become more informed advocates for reform will gain much insight from reading this book. Linhuyen Pham practices with the firm of Heard & Medack, P.C. She is a member of The Houston Lawyer editorial board. |
