"...the legal world's Thomas Pynchon"

Anthony G. Amsterdam

Comeback
by Jeffrey Toobin March 26, 2007

The annual luncheon of the New York Council of Defense Lawyers is usually an amiable schmoozefest over chicken cutlets. But at the event the other day, at the Grand Hyatt, the introduction of this year’s guest speaker reduced the group of notoriously voluble attorneys to a respectful silence. Just about everyone in the room had heard of Anthony G. Amsterdam, but few had ever seen him in the flesh. There before them was the legal world’s Thomas Pynchon.

Amsterdam had once been among the most famous lawyers in the country. In 1972, as a thirty-six-year-old professor at Stanford Law School, he argued and won one of the most important cases in the history of the Supreme Court. In Furman v. Georgia, the Justices struck down all of the death-penalty statutes then in effect, halting executions in the United States. Amsterdam’s achievement is widely believed to rank with Thurgood Marshall’s triumphs in school desegregation, even though four years later Amsterdam lost Gregg v. Georgia, which allowed states to pass death-penalty statutes again. On other key issues, such as freedom of speech, there was no more visible champion than Amsterdam.

Then, in 1981, Amsterdam moved to New York University, and his public appearances, if not his legend, dwindled. “When N.Y.U. announced he was coming from Stanford, it was like when the Mets got Pedro Martínez, because he was a superstar,” Paul B. Bergman, the president of the council, said. “And since then he’s become this ethereal presence.” In a rare departure, Amsterdam accepted the invitation of the council to present an award to Barry Scheck and Peter Neufeld—the founders of the Innocence Project, which uses DNA technology to free wrongfully convicted prisoners—who are as ubiquitous as Amsterdam is reclusive.

Now seventy-one, Amsterdam is thin and wizened—he didn’t touch his lunch—and his face is dominated by a bushy mustache and large plastic eyeglasses. He looks like a vaudevillian. Amsterdam isn’t the kind of speaker who loosens up the crowd with a few jokes. “I am not talking about individual judges,” he said. “I am talking about something more systemic and radical. We have witnessed a subversion of the very idea that criminal defendants have rights. The blindfold that Justice is supposed to wear to assure that cases are decided with indifference to the outcome has been shredded. Now, as a matter of law, judges are required to peep through the blindfold, survey the outcomes which their rulings would produce, and tip the scales to avoid unwelcome outcomes, most notably the releases or even the retrials of guilty-looking perps.”

Amsterdam’s theme—that the rights of criminal defendants have eroded in recent years—was not original, but he pulled together disparate strands in the law in a novel and forceful way. He said that courts ignore errors by defense lawyers, dismiss procedural errors as “harmless,” cast aside exculpatory evidence discovered after trial, and seize on “every possible procedural obstacle to refuse to hear the claims of people who present convincing evidence that their convictions were factually erroneous, and that they are actually innocent.” Almost sneering, Amsterdam said that courts care most about the “finality” of criminal convictions, and then he asked, “Finality for whom?”

Indeed. My friend dcdave at The Delightful Yank recently posted on the cost of execution involved in a local death penalty case. The article brings to mind the argument I hear most often from people who favor the death penalty: "I don't want my tax dollars to pay to keep this creep alive." There are two problems with this position. First , as dcdave's post points out, the cost of execution is far higher than life-without-parole. It costs far fewer tax dollars to keep a creep in prison for life than to execute. Second, I'm sure any of us could peruse any government budget and find plenty of items that "I don't want my tax dollars to pay for". But if a court sentences a criminal to life-without parole, we have an obligation as citizen's to fund that sentence with our taxes, even though we may disagree with that sentence.

My own position on the death penalty has evolved from skepticism to opposition, influenced by Errol Morris' film The Thin Blue Line and Sister Helen Prejean's book Dead Man Walking, both of which I highly recommend.

Again from Jeffrey Toobin's article, quoting Professor Amsterdam:

“It’s true that history has moved in a pendulum, and we may be moving a little toward humanity, toward egalitarianism,” he said. “But we’ve gone so far in the other direction that it will take a long, long time to get back.” Still, he insisted that his own long silence did not signal a retreat. “At any given time, I’ve got forty death cases around the country that need my attention,” he said. “That’s how I’m spending my time.”

Time well spent.

Update: Jeralyn @ Talk Left links to this editorial in the Chicago Trib.