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Constitutional Chaos By Judge Andrew P. Napolitano (Thomas Current, 234 pages, $26.99) The Death Penalty on Trial By Bill Kurtis (PublicAffairs, 192 pages, $25) It’s one of the things that make this country great: Everybody gets to weigh in on the questions of the day. Some get their chance over dinner. Some call in to radio talk shows. And some write books. Of course, producing a TV show or being a regular on a television network like Fox is a pretty good guarantee of getting a book contract. It doesn’t necessarily mean the book is going to be any good, just that the publisher figures the odds of purchase are going to be better if a consumer says, “Hey, I love that guy on TV! I wonder what his book says.” That’s where two new books come in. One is Constitutional Chaos: What Happens When the Government Breaks Its Own Laws, by Judge Andrew P. Napolitano. Many Americans recognize Napolitano as the “Fox News Senior Judicial Analyst,” a regular on “The O’Reilly Factor” and on “The Big Story With John Gibson.” He’s made his TV name by offering commentary on everything from the O.J. Simpson trial to the USA Patriot Act. The second book is The Death Penalty on Trial: Crisis in American Justice by Bill Kurtis. Kurtis is the well-known producer and host of two popular true-crime TV shows on A&E: “Cold Case Files” and “American Justice.” He’s become such a popular-culture icon that his name has popped up on shows like “South Park” and “The Sopranos.” Let’s start with the judge. Napolitano’s argument is that “the government is not your friend.” What does that mean? He cites a series of cases in which he claims law enforcement agencies circumvented the law in order to bring suspects into custody. For instance, Napolitano brings up the 1998 Supreme Court case of Pennsylvania Board of Probation and Parole v. Scott. It’s interesting to examine the details Napolitano presents in his interpretation of the case. Keith Scott, convicted of third-degree murder and released on parole, was found, after a search of his home, to have firearms � obviously, a violation of his parole. In Napolitano’s take on the case, when parole officers arrived at Scott’s home, his mother “refused to consent to a search.” But the Supreme Court ruling in the case challenges that interpretation: The decision notes that the officers didn’t even request a search. Napolitano goes on to argue that the parole officers conducted an illegal search, in violation of the exclusionary rule that prohibits using evidence gathered in an illegal search. But according to the Supreme Court’s majority opinion, authored by Justice Clarence Thomas, Scott’s parole agreement included an automatic consent to a search, no warrant necessary. The Supreme Court ruled in this case that since parole is actually a form of incarceration with limits on a person’s freedoms, the same rules don’t apply. Napolitano calls the search of Scott’s home a violation of the Constitution. Others could easily say that it’s a perfectly fair interpretation of the rules of parole. Napolitano also takes on a favorite conservative enemy: former Attorney General Janet Reno. There is plenty of ammunition here, from her handling of the Branch Davidians to the Elian Gonzalez mess. But he loses credibility with his angry approach. Note, for example, the cheap shot he delivers in describing why Elian’s father wanted him back with him in Cuba: Lazaro Gonzalez “couldn’t bear to see his son grow up in a free country.” But Napolitano does more than beat up the Democrats in government. He also takes on some of the conservatives’ favorite measures. For instance, he slams the Patriot Act: “If the government can get documents about you and evidence against you from your financial institution under the guise of national security, i.e., without a showing of probable cause, but use it in a criminal case against you, then the Constitution’s protections � its guarantees � have been eviscerated.” He also defends the rights of those incarcerated at Guant�namo Bay: “By maintaining dilapidated conditions and pursuing psychological torture, the U.S. military is violating the human rights protections guaranteed under the Geneva Conventions,” he writes. Later he points out that he’s not necessarily trying to exonerate the detainees. “These individuals could very well be guilty of war crimes, but there is no way to know because the government refused to grant them hearings.” These kinds of comments have not endeared Napolitano to many hard-right conservatives. Is Constitutional Chaos worth reading? The style is plainspoken and direct. It’s important to keep in mind, though, that in a number of cases Napolitano cites, the courts have stepped in and overturned some government action and corrected the wrongs. So take the good judge with a grain of salt: He is right about eternal vigilance, but far too alarmist in his doomsday predictions that government crimes will result in a Constitution that is “meaningless.” Bill Kurtis doesn’t set up as complicated an argument in his book, The Death Penalty on Trial. Instead, he makes a direct and persuasive argument that since our system of criminal justice is flawed, we have no right imposing the death penalty. Kurtis, formerly a lifelong supporter of the death penalty, goes into great detail on two death penalty cases later overturned because the accused and convicted men were innocent. We first hear the story of the more sympathetic character of Ray Krone. Due to some serious bungling of teeth imprints made from a bite on the dead woman’s breast, the evidence suggested that Krone’s teeth prints matched the ones on the victim. (It turned out later that the forensics work that contradicted the match was deliberately ignored.) Essentially, a combination of an inexperienced defense counsel and an extremely limited criminal investigation led to Krone’s conviction. Kurtis spends a good deal of the book describing Krone’s years in jail and on death row, where he attempts to educate himself about the law and find his place in the prison system. Eventually, DNA testing proves indisputably that Krone could not have been the murderer, and he is set free � 10 years after his conviction. Kurtis opines: “Trying to assess guilt or innocence in any case is a very difficult job, fraught with errors that are going to occur whether lawyers are trained to perfection or not. The current criminal justice system may be the best way we have to make that determination, but it’s not good enough to play God. We should not use it to send people to their deaths.” His second example examines the story of a horrible murder of a young mother, her two daughters, and a niece. The obvious suspect in this case was the estranged husband, but somehow attention turned to a local ne’er-do-well who abused drugs and had a history of mental illness. How did they get the wrong guy this time? Kurtis suspects overzealous Pennsylvania state police, along with a jury easily persuaded by false accounts and faulty memories. This time, the case is appealed and overturned in a second trial. Not only is this second example more complicated, but Kurtis also muddles the description of the details by confusing the first names of the estranged husband and the accused murderer. In some places, the estranged husband is called “Thomas Dryfuse”; in other places, he’s “Jake Dryfuse.” It’s all the more confusing because the man originally convicted of the murder is named Thomas Kimball, and the defense attorney is Thomas Leslie. Kurtis also gives us two descriptions of Kimball’s small size (in one place, he’s 5 feet 4 inches, and 120 pounds; in another, 5 feet 5 inches, and just 100 pounds!), with no indication of which version is accurate. The rest of the arguments against the death penalty are squeezed in at the end of the book, mainly because Kurtis feels they matter less than his point that the United States cannot put people to death when we make so many mistakes in convicting people. Are two cases enough to convince us that the death penalty is a flawed system that needs to be abolished? Kurtis writes: “What I have concluded is that there are hundreds of tiny decisions made in the course of investigation and trial that can easily be as wrong as they are right. . . . The administration of justice is complicated, too complicated to make death its product.” Neither Kurtis nor Napolitano adds much new to the debates over our system of justice. But they do add some thought-provoking elements, one from a conservative who’s not afraid to take on some of the right’s most cherished beliefs, and another from a lifelong supporter of capital punishment who changed his mind. Debra Bruno is special reports editor for Legal Times .

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