Katzenbach, Nicholas deB.

Miller, Vernon X.

Miskovsky, Milan C.

English

bepress Legal Repository

DEATH AND THE SUPREME COURT. Barrett Prettyman, Jr. – THE TRIAL OF MEDICAL MALPRACrICE CASES. David W. Louisell and Harold Williams. – QUEST FOR SURVIVAL. Julius Stone.

The Catholic University of America Columbus School of Law

Catholic University Law Review Volume 11 Issue 1 January 1962 Article 9 1962 DEATH AND THE SUPREME COURT. Barrett Prettyman, Jr. – THE TRIAL OF MEDICAL MALPRACrICE CASES. David W. Louisell and Harold Williams. – QUEST FOR SURVIVAL. Julius Stone. Milan C. Miskovsky Vernon X. Miller Nicholas deB. Katzenbach Follow this and additional works at: https://scholarship.law.edu/lawreview Recommended Citation Milan C. Miskovsky, Vernon X. Miller & Nicholas d. Katzenbach, DEATH AND THE SUPREME COURT. Barrett Prettyman, Jr. – THE TRIAL OF MEDICAL MALPRACrICE CASES. David W. Louisell and Harold Williams. – QUEST FOR SURVIVAL. Julius Stone., 11 Cath. U. L. Rev. 55 (1962). Available at: https://scholarship.law.edu/lawreview/vol11/iss1/9 This Book Review is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact edinger@law.edu. Book ReviewsDEATH AND THE SUPREME COURT. Barrett Prettyman, Jr. New York: Harcourt,Brace & World, Inc. 1961. Pp. 311. $4.95.A young Washington lawyer, Barrett Prettyman, has taken six capital cases in whichthe Supreme Court has become involved and has woven through and around thosecases the searching question-why? Perhaps the question is unlawyerlike because ofits broadness, but in its insistence it becomes a gadfly, forcing one to re-examine hisopinion as to the value to society of the death penalty in the field of criminal justice.Barrett Prettyman is, unlike so many in our profession, a good writer, and in present-ing his obviously well-chosen cases, he places the Supreme Court in perspective notonly as the highest court with Constitutional objectives and limitations,, but as asocial and human institution as well. Lawyers have come in for a great deal of criti-cism in recent times for their inability to write clearly and concisely, a fault longrecognized by the profession itself. In this book, Prettyman makes it crystal clear thatthe criticism is not to be applied to him, and I for one would hope that this is not aresult only of his short stint as a journalist.No matter what field of law an attorney finds himself in, there is no doubt that hewill find this book readable and rewarding. Some of the pages are grim, for after all,death is grim, even in a world where life is sometimes said to be fast and cheap. Theplight of the women in Selma, Alabama, was grim when confronted with reports andfeeling the forays of a rapist who climbed in and out of bedrooms. The punishmentof Willie Francis was grim when, after elaborate preparations, he was strapped in theelectric chair, the current applied and, after a short period, he still lived. Prettymandresses up the grimness when he turns fine phrases such as describing Selma, Alabama,as sitting "like a mudlark beside the Alabama River." (p. 5).One wonders why he picked the particular six cases. The Alabama rapist, the Dis-trict of Columbia arsonist, the Louisiana Negro who defied electricity, the Washing-ton card player who pleaded self-defense, the Los Angeles law student who killed hismistress, and the Georgia Negro who was convicted for the murder of a storekeeperwere not, after all, the most sensational cases reviewed by the Supreme Court in recentyears. For whatever reason these cases were selected, they have stimulatingeffectiveness.The cases themselves are not completely illustrative of one thing Prettyman setsout to show-the feelings of the Justices on the Court on the subject of death. Thiscomes clear only with his perspective painted in broad strokes by the use of whatseems as starkly real fiction and perceptive comments on the role of the Court. AndCatholic University Law Reviewyet, reflecting on the book, one is reminded of Justice Jackson's comment in Morris-ette v. United States' when he introduced his long opinion in a case involving de-fendant's taking a few pounds of rusty Government shell cases from a long-forgottenscrap pile with "this would have remained a profoundly insignificant case to all exceptits immediate parties had it not been so tried and submitted to the jury as to raisequestions both fundamental and far-reaching in Federal criminal law, for whichreason we granted certiorari." Of course, the conclusion cannot be escaped that in acase before the Court where death may be waiting for the outcome, it, to use Pretty-man's words, "receives more attention than any other class of cases coming before theCourt" (p. 43). Then why, in a case such as Williams v. Oklahoma' where death wasreally the only issue, do we find the Justices voting 8 to 1 to affirm the conviction? Inthat case, defendant pleaded guilty during his trial for murder, and was sentencedto life imprisonment. Less than a month later he was charged with kidnaping, pleadednot guilty at arraignment, but several days before the trial was scheduled entered aplea of guilty. He was sentenced to death. Before the Supreme Court, Williams' attor-ney argued that the proceedings showed "the death sentence was determined andimposed in violation of the Due Process Clause of the Fourteenth Amendment." Inthe Court's opinion, written by Justice Whittaker, Williams is credited with threearguments:[F]irst, that the trial court violated the presentence procedure prescribed byOkla Stat, 1951, Tit 22, Sections 973, 974, and 975, in permitting the State's attor-ney to make an unsworn statement to the court of the details of the crime and ofpetitioner's criminal record, and that this also denied to him the rights of con-frontation and cross-examination; second, that the court in taking the murderinto consideration in imposing sentence on the kidnaping charge punished hima second time for the same offense; and, third, that in any event the sentence todeath for kidnaping was 'disproportionate' to that crime and to the life sentencethat had earlier been imposed upon him for the 'ultimate' crime of murder.3Certainly the Court was face to face with death and due process. The Court, however,in agreement with the highest court of Oklahoma's construction of the State statutes,closed out one of the arguments with the words that "the construction must be ac-cepted" by the Supreme Court. Hard .and matter of fact it seems. It is interesting toconsider, as found in the opinion, the discussion of the penalty of death to be admin-istered for kidnaping after a sentence of life imprisonment for murder. From its lan-guage, the excerpt indicates the Justices had considered the petitioner's counsel'sargument concerning death and determined that death was the victor here.Petitioner's further claim that the sentence to death for kidnaping was 'dis-proportionate' to that crime and to the life sentence that had earlier been im-posed upon him for the 'ultimate' crime of murder proceeds on the basis that thesentence for kidnaping was excessive,that the murder was the greater offense, andthat the sentence for the lesser crime of kidnaping ought not, in conscience andwith due regard for fundamental fairness, exceed the life sentence that was im-posed in another jurisdiction for the murder.'342 U.S. 246 (1952).'358 U.S. 576 (1959).Old. at 581.[Vol. XIBook ReviewsBut the Due Process Clause of the Fourteenth Amendmend does not, nor doesanything in the Constitution, require a State to fix or impose any particularpenalty for any crime it may define or to impose the same or 'proportionate' sen-tences for separate and independent crimes. Therefore we cannot say that thesentence to death for the kidnaping, which was within the range of punishmentsauthorized for that crime by the law of the State, denied to petitioner due processof law or any other constitutional right. Nor, in view of the fact that kidnapingand murder are separate and independent offenses in Oklahoma, is there anymerit in petitioner's collateral claim that what he calls 'the lesser crime' of kid-naping 'merged' in what he calls 'the greater crime' of murder and that the sen-tence to life imprisonment for the murder was a bar to the imposition of anysentence for the kidnaping, or at least to any greater sentence than was imposedfor the murder, and that imposition of a death sentence for the kidnaping de-prived him of due process in violation of the Fourteenth Amendment.4I point to this case only to suggest that there are cases which do not seem to fall intothe pattern of concern by the Justices which is suggested by Mr. Prettyman. On theother hand, in the Williams case, we do not see the background which was gatheredwith what was without doubt a great deal of noteworthy effort by Mr. Prettyman.Without that background, questions arise in connection with the Williams case, suchas why Williams did not choose to present any evidence in mitigation when he hada chance prior to sentencing.In line with Justice Jackson's prologue in the Morrisette case, DEATH IN THE SU-PREME CouRT explores fundamental and far-reaching questions on the administrationof criminal justice under the Federal Constitution. The cases are not minor, it is true,if only because of the death penalty, but by and large, they are most important to theprisoners whose lives are at stake. Aside from the question of guilt or innocence whichPrettyman, directly and indirectly carefully points out is not the issue in his cases.The basic question which the Court faces is a legal one enmeshed in the social philos-ophies of our time; namely, under the procedures followed was the trial fair? In thisconnection, Prettyman lauds the lawyer, who is not satisfied with a stereotyped theoryand who tries again if rebuffed and who presents the Court with arguments whichallow a just decision. Most lawyers recognize that the road to a successful decision isstrewn with the carcasses of theories which were tried and failed. The energy ex-pended by some of the attorneys as described by Prettyman was truly an outstandingexample to members of the bar, especially where, for an idea, an attorney risked popu-lar disapproval and public disenchantment. Prettyman does not make the attorneyscrusaders, and I would guess they were not, but their initiative was remarkable.There are some interesting comparisons raised by the book which are provoking:for example, the attorneys in the Willie Francis case argued that a person who hadbeen electrocuted in the electric chair once and survived and who argued that thesame ordeal by the same prisoner was prohibited as cruel and unusual punishment.How different was the ordeal of Willie Francis as compared with that confrontingBaxter Griffin, who had prepared for his last dinner and three years later "after twotrips to the Supreme Court and four to the Court of Appeals," he pleaded guilty toa second degree murder and was sentenced, instead of to death, to five to twenty-oneyears in prison. In relating the case of John Russell Crooker, Jr. v. People of theIId. at 586-587.1962]Catholic University Law ReviewState of California, 5 Prettyman includes a brief history of Crooker's life, written byCrooker for inclusion in this book. While somewhat tangential to the theme of thebook, the life history is one of the important parts of it and serves deftly to explainin forty pages a case history of rehabilitation. Wisely it seems, Prettyman has chosennot to limit himself to trying to explain all the facets of the Supreme Court's dealingwith capital cases and presents the reader with material to contemplate in forminga conclusion on the value of punishment, particularly capital punishment.What was left out? After finishing the book, an easy answer would be more of thesame. But then there would be the possibility of repetition, for Barrett Prettyman haswritten well the fascinating story of the Supreme Court coming to grips with the deathpenalty. His cases do not include citations, but of real value, he presents a truly in-formative, uncomplicated perspective of the place of the Court in our society and amost revealing look at the work of the Court and its individual Justices. Writtenprimarily for the layman, Prettyman has, nevertheless, presented the lawyer with agripping story of the law in action and, despite his description of the Court Buildingas a "white mausoleum," the book makes clear what most lawyers feel-that the Courtis a vibrant institution where, from a muffled courtroom, a conscience is felt by theNation.MILAN C. MISKOVSKY*THE TRIAL OF MEDICAL MALPRACrICE CASES. David W. Louisell and HaroldWilliams. Albany: Matthew Bender and Company. 1960. Pp. xviii, 1022. $30.The personal injury business is bursting into specialization with more kinds of plain-tiffs and cases than ever before. Claims are bigger, and more judgments are beingrecorded in six figures. Nor is this stepped up quantity and variety occurring only inthe automobile business. There are more airplane cases in 1961, more products lia-bility and doctor cases. In some way or other all lawyers, as well as many other personsin the community, are being affected today by the personal injury business, althoughthere is reason to believe trial work has become so specialized that fewer lawyers aretrying the bigger cases,Automobile cases do not lend themselves to specialization within the area. Varietyis too great and classifications are not functional. Lawyers do not develop special skillsfor upset cases or multiple collision cases. Nevertheless, there is a new kind of lawyerappearing in the little traffic court cases. Call him the traffic lawyer if you will. He isdeveloping special skills, and in the atmosphere of the magistrate's forum, he can losethe big case lawyer at the starting gate. Perhaps there are no specialized areas in theproperty maintaining and policing cases, but the lawyer in a products liability casefrequently shops for help. He acts almost like a solicitor with a brief for a barrister.It is a good guess that the personal injury lawyer who reads Louisell and Williams will* Lecturer in Law, The School of Law, The Catholic University of America. Member of theBar of the District of Columbia.- 357 U.S. 433 (1958).[Vol. XIBook Reviewswant to become a specialist if he tries his second doctor case. It is another good guessthat he will look for a barrister when he gets the first case.The authors have produced an unusual treatise. It is a good book for the man whowants to survey the field and who may never try a malpractice case. It is a keen toolfor the specialist. It is an idea book for lawmen who are interested in the administra-tion of justice. Perhaps it is a good book for law students, but most of us who can readit profitably are so far from the student level, at least in time, that we can no longerdetect a good crutch for a beginner.Some of the best things in the volume are the tables. They are complete on statutesof limitation and on the immunity areas affecting charitable corporations and publicagencies. The appendix with its breakdown of case citations into medical classifica-tions is better than an index. Scattered throughout the book are vocabulary aids forthe lawyer who would learn to translate medical men's terminology into everydaymeanings for lawmen and jurors. One of the authors is a medical man as well as alawyer. Perhaps the best vocabulary aid is the chapter on "The Fields of Medicine."The authors have included critical chapters on res ipsa loquitur and discovery proce-dures that cut across other areas of tort and help to give the reader perspective inrelating the special problems in medical cases to analogous problems in other fieldsof personal injury law.It is a pity the format is so forbidding because Louisell and Williams have reachedfar beyond the hornbook level with this treatise. It is not a cyclopedic text. Ratherit is a well written monograph on a vital and expanding area of torts. It reflects theauthors' understanding of the dynamics of the law. This book deserves a spot in everylaw library and every good trial lawyer's office.VERNON X. MILERQUEST FOR SURVIVAL. Julius Stone. Cambridge: Harvard University Press.1961. Pp. 104. $2.75.Quest for Survival is a useful book because it states in simple and comprehensibleterms some basic facts of life about international law. Composed of talks given byProfessor Stone for a lay audience over the national radio network of the AustralianBroadcasting Commission a year ago, it is remarkable in its presentation of a sophis-ticated analysis of contemporary problems in simple language easily understood bythe lay listener or reader.Professor Stone is one of the world's most distinguished international law teachers.He is clearly annoyed by the nonsense urged by many men of good will but lesserintellect in support of a Rule of Law as the easy answer to our current internationalproblems. He is not opposed to law nor cynical about the ideals which these peoplecherish. He simply urges that they pause to consider and make explicit what it isthey are talking about and how their ideal is to be achieved under contemporary con-ditions. These lectures do much to clarify both aspects. With economy and wit heanalyzes many of the more common platitudes and fallacies.0 Dean, The School of Law, The Catholic University of America.1962]1962] Book Reviews 61"interposition peace forces." All this sounds sensible, refreshingly non-apocalyptic inits vision, and constructive.Quest for Survival is useful in getting over to a lay public why there are no easysolutions to international problems and in pouring cold water on those who makegrand proposals which presuppose the underlying problems have been solved. In myjudgment it is extremely important to get public support for small steps forwarddown a long road to the international rule of law. One ought to be able to accept thetruth that it is a long road and that there are no easy solutions for difficult problems.Most importantly, we should be able to hail progress even when we know it does notitself provide a complete answer to the basic quest for survival.NICHOLAS DEB. KATZENBACH**Assistant Attorney General of the United States of America.

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DEATH AND THE SUPREME COURT. Barrett Prettyman, Jr. – THE TRIAL OF MEDICAL MALPRACrICE CASES. David W. Louisell and Harold Williams. – QUEST FOR SURVIVAL. Julius Stone.

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