>> guest: it's a really important dialogue that's going on in the u.s. and, you know, my first question i really wanted to ask you is what compelled you to write this

book, you know, was it brought about by a particular experience, did you have a journalist or something that gave you -- >> guest: we found with so many cases that reach the supreme court, everybody focuses on the legal issues, as they should. but the stories behind the legal issues are compelling. they're fascinating. and that is particularly true with death penalty cases. we found what happened before the crime, what happened during the crime, what happened before the court's decision, how the court decided and often after the court's decision what happened. >> guest: the more we dug in behind the discussions, this'll take you from the scene of the crime right into the supreme court conference room in many of those cases and shows you the repercussions. >> guest: we're storytellers. >> host: absolutely. >> guest: and we have is stories to tell. i think the most important thing about writing a book is having something to say. here we had important decisions, landmark decisions, tough decisions. ten of the fifteen cases we

focus on split the supreme court 5-4, and then stories surrounding the decisions that read like novels, we think. >> host: no, and i completely agree. i think that one of the quotes that i found that i especially really liked was from former congressman jim coin, and he said it's a little hard to believe that you have a nonfiction book you can't put down. and i thought that it was, actually, appropriate. because i feel like this book, it's different from a lot of nonfiction works that i've read. in that it really does, um, read like a thriller. it really does take the legal discussions and inject humanity to it. >> guest: we like to think it's also in addition to telling great stories, we like to think it's an important book in a sense that it tells you how the court works. there are so few good books out this that explain that's the process. how do they go about this? how do they decide these cases? what are they saying to one

another? we see these cases that split the court 5-4. what do they really think in do their personal feelings get into it? so it's a book not just about capital punishment, it's a book about how the count operates. >> guest: when you dig into the notes in the library of congress, the memoranda, the notes back and forth between justices that are available -- and a lot of stuff is available -- i'm not a lawyer. i plead not guilty, whatever you guys do, but i was just struck by the human side of it. in many cases justices, you can see the justices have reservations about capital punishment. >> guest: there's one case, the story about willie francis, and you did a lot of the research on that case. >> guest: it looked like a dry supreme court decision. could a state make a second attempt at an execution that went bad? when you dig back, you discover it has all kinds of ingredients. the year is 1946. louisiana has a traveling

electric chair. they would take it from parish to parish, county to county. they would display the electric chair at the county courthouse at noon and invite school kids to make a field trip and look at the electric chair. don't do bad stuff, guys, because this chair is waiting. they then would take it inside, hook it up to a generator on a truck and invite the victim or mandate the victim into the chair. in this particular case, 17-year-old black named willie francis killed a pharmacist during a robbery. was put into the chair, strapped in. the electrodes attached to his ankle and to his head. and as one witness told us, the executioner said, good-bye, willie, and willie didn't go anywhere. of the chair malfunctioned. there was smoke and sparks, and willie francis had minor burns, but they took him back to his cell. that became a celebrated supreme court case. it wasn't double jeopardy to put

the man in the electric chair again. the court eventually decided it was only accidental, that you could put willie francis in the chair again. but justice frankfurt beer who voted for that execution because he felt constitutionally mandated to do it was so disturbed, he went behind his fellow justices' backs, quite literally, to a friend in louisiana, very powerful in the louisiana state bar, and urged him to do everything he could to stop what he felt would be a travesty. the attorney, nicholas -- [inaudible] did attempt to stop the execution. he could not, and francis died a year later, and the same hearse that had been waiting for him a year before took his body away. >> guest: one of the things we find over and over again, the justices will split 5-4 over capital punishment, whether this person should be executed. often even those who vote in favor of the execution have great misgivings not about the law, but about the wisdom of going through with the death penalty. and throughout its history in the united states supreme court from the 960s on that we've

found, justices would vote to support, uphold the death sentence even though they probably felt it was of wrong. they felt in a democracy, this is a decision that the people must make. >> host: i thought we'd take a look at the unique and interesting kind of research that you did, and i thought the willie francis case was really interesting in that you went and you actually went to these, went to the gas chambers, and you actually went to see these chairs, the electric chair. i just wanted to hear about what the experience was like, you know -- >> guest: no inmate has sat in as many electric chairs as we have. [laughter] >> guest: that's a fact. >> guest: yeah. but it reminds you of what capital punishment is all about. that in this room life is being taken away by the state, and you start thinking about it a little more deeply. incidentally, there are so many questions about capital punishment. finish -- a difficult one, of

course, is whether to have it. but once you've decided to have it, as the united states has, how it operates, who shall be executed, what are the rules, those are questions that turn out to be even more difficult. and we can't say that our book will provide you the answer, but i do think we agree it helps you understand the question. >> guest: i think there's two i call them knee jerk theories about capital punishment. one is that it's terrible, it's an abomination, we shouldn't have it. and the other is that it is an instrument of justice that's perfectly proper. if we shake either of those knee jerk theories, if we cause people to think, i will have decided this book is a successment -- success. >> host: no, and i think that's an excellent point. this has been a huge and wonderful contribution just to that discussion. um, and i wanted to just kind of to touch on what you just said. so the united states is one of the few industrialized

democratic countries that still practices capital punishment. >> guest: really the only one, we think. there's no other western industrial democracy that practices the death penalty. >> host: yeah. and, well, do you believe that this fact to be at all related to the challenges faced in reforming gun law and gun violence? >> guest: go ahead. [laughter] a really, that's a tough question. i sometimes think, and i don't, i don't know the answer to that question. but i sometimes think that our culture's a little different when it comes to crime and punishment than most other western democracies. guns are more readily available here than in any other western democracy and in countries like the united kingdom, it just doesn't -- they're not there. and yet we have one of the highest murder rates. and so what we do we do -- what do we do? we have capital punishment defined that in those states that have death penalty, they also have the highest crime rates, primarily in the south. and in those states that do not have capital punishment like the northeast primarily, they have

the lowest crime rates. now, is there a cause and effect there? i don't know. maybe what comes first, the chicken or the egg? do they have the death penalty in the south because they have such high murder rates, or is it the other way around? and, you know, the answer might depend on who you ask. because opponents of capital punishment will look at it one way, and i don't know, proponents look at it another way. and what we do find, though, is in this debate when you look at the crimes and you look at the criminals who commit these crimes as we do in this book, you find a great deal of sympathy for death penalty. it's easy to support the death penalty when you look at the crimes in this book and at the criminals. but then when you look at the system, you have to have some pause. louis powell, throughout his career, supported the death penalty. he concluded it was a mistake, and it just doesn't work the way it's supposed to.

>> host: and then i thought the point that you just made about, um, sympathy and just relating to kind of the stories that are behind these cases, i thought that really resonate with the the daryl atkins case. and i know that as part of your research, um, you did go and actually interview with his mother, and i just found -- i just wanted to know not so much about the -- but what that experience was like. >> guest: that's a fascinating case. atkins v. virginia, the supreme court held you cannot execute someone who by state law is mentally impaired, retarded, whatever that level is. and, i mean, it's a very tough case. most killers are not the brightest lights in the house. someone who's a little on the dim side, should they be spared for that? and who should make that call? should it be the united states supreme court? should it be the jury that sees the defendant in court?

in this case, this is another one of those cases that is truly, it's a fascinating story, and legally it's very important. this was a cold-blooded murder. there's no -- popped some guy outside of a convenience store, forced him into the car, made him drive to the bank, took out a couple hundred bucks, drove out to the wilderness and shot him dead. justice scalia sounded like a prosecutor. he shot him once, twice, three, four, five, i mean, well, the supreme court ruled that he could not be executed if he was mentally retarded. but how do you define what's mental retardation? three juries, he qualifies for capital punishment under virginia law. sent him back to, the virginia supreme court sent it back to a fourth jury to say, to determine whether he was really retarded. and before that jury could reach

a verdict, there was some prosecutorial misconduct years earlier, and the judge finally threw up his hands ask and said, that's it, he gets life without parole. so the inmate who brought this case and led to this landmark supreme court decision, this case was not affected by the decision at all. >> guest: exactly right. >> guest: it's just an amazing story, and the twists and turns in this that case. and by the way, we worked on something to help people understand the crime. we have something called qr codes in the book. and martin is a little bit more techie than i am. he was the driving force behind this, and we think it's a really unique feature in the book that will make it more appealing to our reader. >> guest: well, what's helpful is the technology, you take a smartphone or a tablet, and you wave it over the code in the book, and you get the video of the atkins case or any of the other cases we covered. >> guest: one of them involves whether you can have the death

penalty for juveniles, somebody who's under 18. this case involves a 17-year-old. he took an elderly woman out on a bridge and pushed her off. she drowned, and they picked him up at his high school the next day, and within hours he gave a tearful confession to police. and we describe this in the book, but then if you put your phone over the code, you can see the confession yourself. >> host: and i thought that the qr codes were a neat way to just kind of -- it almost takes the reader just even more into the book. and i was wondering, you know, what was the, what was the thought behind that? do you think that this is the direction in which, um, you know, books are going to be headed, especially nonfiction? because it really does create a great opportunity to just, um, really, you know, grab your reader. >> guest: martin was explaining this, yeah, right, you want to put codes in the book, that's fine. [laughter] i didn't understand what it was.

and then when i saw it, i mean, it just blew me away. >> guest: i can't predict which way the publishing industry's going to go, because lord knows these days. but for me, i mean, when -- not only do you see, for example, if you pull up the video of daryl atkins -- of simmons, the boy who confessed, you see not only his confession in the police station, but then the police take him back to the bridge so that he can show the police where he threw the woman off the bridge. to me, that brings you literally to the scene of a crime and has an emotional impact that, you know, we think we're pretty good writers, but no way we can give you that kind of impact. >> guest: you don't see that on the evening news, and you don't read about it in the newspapers. made for television movies will try to duplicate it, but this is the real thing. >> host: right. >> guest: and i do think, you know, if you're going to get involved -- first of all, we all have a stake in this. but the fact that you might not have the answers is perfectly understandable, because it is a

tough question. you don't have to have the answer unless you're sitting on some court. but if you look at these crimes, i think you have to -- it helps you understand what it's all about. we talked to judges, we talked to lawyers, we talked to prosecutors about capital punishment. sometimes, i think, lost in the debate might be the view of the undertakers there who pick up the body. they see firsthand what happened, and can that's in the book. >> guest: and we've met some of these animals. we've met some people who, in my opinion at least, are beyond redemption. so if people are angry, and if these kind of animals are in the dock, i can understand the feeling, the need, the desire for retribution. >> guest: one of the things we've also found, everybody talks about the debate over whether the death penalty deters. and a lot of that also depends on who you ask. but there really is no convincing evidence that it does

deter. the supreme court has sort of bought that. whether it does deter, we don't know. we find that the real support for capital punishment now comes not in the name of deterrence, but rather in the name of retribution. call it revenge, some call it justice, to us it's all the same thing. and it's perfectly understandable. oi mean, i've spoken to loved ones left behind when someone is killed, i mean, in a way the person killed gets off the easiest. he's gone. but the family, it's painful to them for the rest of their lives. they never forget. and some of the relatives that i've spoken with actually had crusaded against capital punishment, and i would say, well, what about the person who was the father? will you make a pitch to the court to spare that person from the death penalty? i said, you know, i can't do that. perfectly understandable to me. >> host: and so, and it's very

clear that both of you are very passionate about this, and, you know, i was reading that you actually were saying that you all thought about writing a book like this 20 years ago, and it was just a matter of time. so i'm just curious as to what was going on then that kind of started this conversation. >> guest: it's all amtrak's fault. [laughter] then it was of the metro liner. headed from washington. tim and i were going to new york to edit a piece we had shot for "20/20" on juvenile crime and the death penalty. and the more we talked, and the more we thought about it, somewhere between delaware and new york city we decided we had to write a book. the trouble is, we're both world class procrastinators, we had a lot of other things on our plate, and it took us a long time to get there. >> guest: as martin says, we are world class procrastinators, but i insist we are not quitters. [laughter] although sometimes the distinction is hard, you know, between -- but we did put it off for a long time. and we're both semiretired now,

we're still doing a lot of work. i find i'm maybe doing more work than when i was at abc news, although i'm not paid as well. and we said this is something that's worth our energy. and, besides, i don't want to run into you in the rest home saying we should have done it, but it was your fault. or you say that to me. [laughter] and we felt it was a worthwhile project. and most importantly, it's an important issue, and we had something to say. we had stories to tell and legal principles to explain, and we worked, i think, very well on that. martin is the storyteller from way back when with "20/20." i've been doing legal analysis for 20-plus years, and it was a marriage that worked very well. >> host: and so i'm curious as to where you see, you know, how does this book kind of fit into the larger discussion, you know, with groups like the innocence project and, you know, the recent exoneration, um, of -- due to dna evidence?

where do you think this book kind of fits into that dialogue? >> guest: you know, kim, that's a very good question which our book and recent events brings to light. because the prospect of executing the innocent has always been a concern. always been an argument against capital punishment and what we're finding is it's much more real, much more large than we actually thought it was. >> guest: a lot of university researcher, columbia university law school found a case in texas that it's almost certainly a mistaken execution. i mean, opponents of capital punishment are often challenged, you know, find us a real case. find us a truly innocent person who was executed. this is probably the case, in texas, it's probably it. and it's a case of people being in the wrong place at the wrong time. but when you look at the man who was executed and the man who is now presumed to be guilty of the crime side by side in photographs, you have a hard

time telling the difference. our book doesn't take an advocacy position. this is not a book for or against capital punishment. the goal of this book is to show you the questions. we do come to some conclusions how the system doesn't work, but we're not here to tell you whether or not capital punishment is right or wrong. >> guest: you know, the risk of executing the innocent has drawn some strange reactions from some of the justices. they say, look, it'd be helpful, it might help your cause if you could point to one. well, we can assume that somebody's been executed by looking at all the thattist you cans who's innocent. but even then, no one ever said the system is perfect. are we going to do away with all punishment because mistakes do happen? no. it's a mechanism given to human frailties and human error, so there will be mistakes. they said, well, except when there's a mistake in a capital case, there's no remedy. the person is gone. they say, well, so death is

different. and there are some justice on the court say, well, the process has to be the same. so you have that very basic disagreement between justices who are very concerned about the risk of error and other justices who say they're concerned, but it doesn't affect the outcome as to whether you should have it or not have it. >> host: so, and then i kind of need to step back because i know we kind of touched about this earlier, and i find it interesting with you all have very similar and yet kind of different backgrounds. and i just wanted to talk a little wit about the process -- a little bit about the process of co-authorship, and, you know, i want today hear about how that worked. >> guest: mostly with bats. [laughter] >> guest: it was wonderful. we were sitting in the same room at the same table. but in point of fact be, in point of fact, in point of fact it was, it was a delight. more 90% of the time. [laughter] we, the most -- >> guest: the other 10% it was 100% not a delight.

no, it worked well. >> guest: the most widely-used phrase by both of us was you can't say that. i think having a friendship for 40 years to build on helped us survive all the bumps. >> guest: what we did, we divvied up most of the chapter, chapter,s, and some of them we worked on together. if it was his chapter, i would say, martin, i would make this change, but he would have the final say. and the same with my chapters. he would make recommendations to me. and they were all done, i say, when i read the book i felt all the changes that we made were very beneficial. and i like to think i helped out with your copy. >> guest: you did. >> guest: and we did have some disagreements, and some of them were reasonably strong, but at the end of the day we reached a solution that we both really thought was best. and the disagreements that we

had were much more light than heat. >> host: uh-huh. and so i wanted to also talk about, i thought it was interesting to hear your title choice. because, you know, it reads, you know, "murder at the supreme court." it reads like a thriller, and it kind of -- i wonder if you did it purposely. >> guest: that, actually, we were looking for a theme. our publisher said we have to have a theme, and just doing it about capital punishment, well, that's certainly been done before. but i said what we want to do, we want to tell the stories and also explain the law. and from time to time, we in that 20-year period where we couldn't quite agree on what we were doing, and we both said, yeah, someday we're going to do it, we got together and said, well, the theme would be murder at the supreme court, how about the cases, the crimes that made the law. and all these crimes, we usually think of crimes as breaking the law. but these are crime that is the supreme court used to make the law, to shape the law, to define the law of capital punishment.

when we agreed on that, we said, you know, that's it. and then the publisher changed it to legal crimes -- lethal crimes and landmark cases. but the fact that we'd agreed on it -- >> guest: which, we have to admit, was an improvement. >> guest: i don't know. [laughter] but i think it works. >> guest: coming up with that theme, the unifying theme, was the hardest part for us. we made several false starts over the years, we must admit. >> guest: well, also, there's another book called "murder in supreme court" by margaret truman that is a novel about a murder at the supreme court or in the supreme court. anyway, we were concerned about that. you know, we weren't going to let that get in our way. this is "murder at the supreme court," and it's how the supreme court views murder and the punishment that's appropriate for it. but i think it is a good title, and it does capture what the book is about. these are all lethal crimes, and what the court said about them produced landmark decisions. >> host: well, and, you know, i have to say i think the book's

neat about both the title and the way the book is done and kind of the way the stories are told. i think it kind of opens it up to folks who are not necessarily nonfiction readers. >> guest: yep. >> host: and i was just curious if that was done intentionally? did you know that was going to be the outcome, or -- >> guest: i think from the get go martin -- my thought was, i was having this difficulty at abc news where i had a terrific story. they never said no to me to go out and interview the people who brought the case which was an amazing liberty and treat for me. i would come back, and i'd say i really have two stories for you, i have the decision from the supreme court that you want, but i have this fabulous human interest story behind the decision that you really want, too, and they'd say, well, all right, we'll give you another five seconds. it was so frustrating to have these great stories that i could not tell as i wanted to. i said we're going to do a book about capital punishment. we could say a little more about the decision. not just what it was, but what went into it and the story

behind it. and martin, as a storyteller, that resonated with him. he used to tell stories. and we had worked together on death penalty stories at "20/20" which was such a treat to me to go out there with you. we went out to oklahoma to work on death penalty for juveniles, a very important case. and the opportunity to explain issues in that kind of veil and tell the stories behind that case was such a treat that you had the luxury on "20/20" of doing all the time, but i didn't. it was a real treat for me. >> guest: it wasn't the case of a another few seconds, oh, we'll give him five seconds. >> guest: ing it was an out of body experience. a very good one. >> host: okay, great. i think we're going to go to a break now, but thank you so much. >> on the go? "after words" is available via podcast through itunes and

xl. visit booktv.org and click podcast on the upper left side to have page. select which podcast you'd like to download and listen to "after words" while you travel. >> host: and so i wanted to take a moment to kind of get into the real meat of the book and talk about some of the cases that really stuck out to me. >> guest: one of the truly landmark cases, anyone who practices definitely law and a lot of people who don't are familiar with the case of greg v. georgia. the supreme court threw out the death penalty in 1972 finding it was implemented in an an arbitrary and capricious manner that was like getting struck by lightning. well, states read their death penalty laws, and another case came up in 1976 called gregg v. georgia where they had the opportunity to see what the states had done, what georgia had done and perhaps reinstate capital punishment. it was a huge case because opponents of capital punishment

thought the earlier decision was just first tool to rid the country of capital punishment once and for all. and supporters of the death penalty said, well, we can get humpty dumpty back on the wall here if the georgia law's upheld. he was a hip hiker, and he had to go to the restroom and stopped again. when they came back, gregg had a gun and shot them both at point-blank range to steal their money and car. the question was, did he get the death sentence? the supreme court looked at how georgia had rewritten its law. it required, one, a bifurcated trial which means you have one part of the trial to determine if the person's guilty and a second trial which is much more open to determine what's the character of this person and what was so bad about the crime that would have justify a death sentence. the court said the georgia law is fine. other states scrambled to meet

what was, georgia had done, to duplicate what georgia had done. and we all assumed that gregg then would be the first person to be executed. and in a way he was, but not the way anybody thought. the night before his scheduled execution, he escaped from prison with four other inmates said to be the worst killers in georgia history. the crimes they had committed were two gruesome even for our book which has some gruesome stories in it. they escaped, went up to north carolina. some of them, the escapees were members of a motorcycle gang called the outlaws. they got together with old friends, and gregg made the unfortunate mistake of slighting the girlfriend of one of the bikers. and they picked him up, threw him to the ground and stomped him to death. his body was found floating in a nearby lake a couple of days later. all the others were apprehended. but the escape, which was so daring, got him another 24 hours, and that's about it. >> guest: so he died, executed

in a different way than the law had intended. you can't make this stuff up. >> host: yeah. >> guest: i mean, but these stories before the trial, before the crime and after the crime, after the supreme court's decision, we find them fascinating. and if you're a journalist and you're a writer, you want to have good stories to tell. there were others too. i mean, we had one where the issue for the supreme court was whether you could forcibly execute -- forcibly medicate a paranoid skits friend -- schizophrenic inmate to make him well enough to be executed. >> guest: the background is the court had already decided if somebody's crazy, you can't put them to death. if somebody becomes insane after conviction, you can't put them to death. but here we have a case of somebody who became or is at least diagnosed as paranoid schizophrenic after being condemned. the state of georgia wanted to medicate him so that they could execute him.

>> guest: against his will. >> guest: yeah. no pills, thank you very much. well, they wanted to medicate him so that he'd become sane enough of to execute him. that became a big supreme court issue. the court looked at it, accepted the case because it was an interesting question. and then for some reason punted. it did not decide that question. it sent it down to the lower courts for re-examination. i talked to the trial judge when it was sent back, he said i was scratching my head. i have no idea what these guys want. they reheard the case. eventually, the louisiana state supreme court made a decision that you couldn't medicate to execute. but the supreme court didn't make the decision in that case. >> guest: one of the things we uncovered in our work on this case was that this inmate, this murderer, michael per ru, he was arrested here in washington, d.c. and actually had come to town, was talking supreme court justice sandra day o'connor. that's -- that surprised us.

she still participated in the case. she didn't remember it because, unfortunately, those things do happen. supreme court justices are victims of threats. but as martin was saying, his death sentence was later set aside by the louisiana supreme court. and now what we hear is he has a whole wing to himself in the georgia state penitentiary at angola pause he spends the wee -- because he spends the wee hours of the morning wandering the halls shouting at only people he can see and hear. not as a courtesy to him, but to other inmates. >> guest: it's the louisiana state penitentiary at angola. my mistake. >> guest: but, you know, it's another one of those cases, another one of those issues that are very, very tough. the supreme court says what do you do with an inmate whether on death row or not who doesn't want the take his medication? and the court says, well, if you can show it's medically necessary, you can forcibly medicaid them. but what doctor's going to say,

yes, it's medically necessary so you can kill a guy? i mean, another one of the issues, i used to lie awake at night thinking about, it so troubled me not because i cared which was the right way to go, but these are puzzles. in this case the question was can you use victim impact statements? you're deciding whether this person who's been convicted, committed the crime, should the jury hear about the impact on loved ones left behind? there were three cases, i think they're the three most horrible cases in the book, and initially the court said you can't, because if you do, somehow -- if someone, the relatives are articulate in speaking about what the loss is, the perpetrator might get a death sentence. whether that happens to be somebody who doesn't have articulate relatives, loved ones left behind or somebody nobody really knew, well, then the perpetrator might escape a death sentence the. that should have no bearing. it should be based solely on the

crime and the criminal. well, i would lie awake at night trying to figure out what's the right answer there? because it does seem relevant what the impact is. and the supreme court divided 5-4 with justice louis powell writing the majority opinion saying, no, that's not relevant. just look at the crime and the criminal. powell left the court, and the court -- another case came up, the court granted consideration, they flipped that decision, you know, in a heartbeat. in a washington, d.c. supreme court heartbeat, which is a couple of years, actually. but -- and it was only the change in personnel that did it. and so the court went 5-4 the other way. doing but the consequences are fascinating. if you die with no relatives to speak for you, that's a different situation. i mean, is the sentence going to be dependent upon the survival of victims' relatives and their eloquence? scary stuff. >> guest: and i still think that's a tough call. i don't know what the right answer is on that.

fortunately, all we have to worry about is presenting the question properly. we don't have to have the answers. also, when you look at these cases, you're seeing the real difference between having an opinion, which we're all entitled to and take no responsibility for usually, and making a decision. chief justice roberts addressed that in his confirmation hearings. when you have to make a decision when lives are on the line, sometimes you look at these cases a little differently. >> host: well, tsa an interesting point -- that's an interesting point because i know a large part of this book is about gathering the information. but i sense definitely that you have an opinion on in this, and i think that it is somewhat weaved throughout the book. do you believe it had any sort of impact on the way -- >> guest: weaved throughout the book, and we tried very hard not to tip our hand. >> guest: because what we found was when talking about these brutal crimes and criminals, the book has sort of a pro-death penalty tilt. and that troubled us.

>> guest: and originally, we did not want to present any conclusions. we wanted it to be hands off, here are the facts, you decide. the problem is, as tim said, it started because of all the brutality of these crime, i mean, the crimes that get to the supreme court are not your 7 7/eleven robberies, these are for the most part crimes committed by people who are very violent, very screwed-up people. and the more we presented the details of those crime, the more visally we felt readers would feel, okay, the death pen eye just fine. we take no moral position. you guys decide that. but what we concluded, and we concluded we had to conclude for the sake of our readers, we had to present our reservations with the way the system works. not whether or not you should have the death penalty, but the fact that the system does not seem to work in any equitable way.

that for more than 200 years the brightest, most caring, most dead dedicated minds in our society in state legislatures, on the bench, on the supreme court, in the legal community have tried to figure out a way to fairly administer the death penalty, to do it in an equitable manner that we'd all be comfortable with. >> guest: in 1972 the supreme court threw out capital punishment because, as we said earlier, it was being implemented in a wanton, arbitrary and capricious manner. forty years later, it doesn't seem better to us despite all the fine tuning the supreme court has done. we find race figures into it. not so much the race of the perpetrator, although that's a factor, but the race of the victim. we find that poverty, nearly all of the people on death row have one of three things in common; abject poverty, victims of child abuse, little or no education. then you have to ask yourself, that's not an excuse. that's not a defense. but to some ec tempt, might we

be executing them because of the sins of their parents? it gives me some pause. also another problem is they're all broke. they have no money. and they don't have good lawyers. there's sometimes in some celebrated cases the quality of legal representation is superb. but in too many of them, it's absurd. i mean, it's -- people are sentenced to die not because they committed the worst crimes, but rather because they had the worst lawyers. and we see that over and over again. these arbitrary factors figure in that should have no bearing on it at all, but they do have a profound bearing on it. >> guest: clinton, definitely. the longtime warden of san quentin put to death 90 people. as the title of the book said, 88 and two women. he said, i never executed a rich person. >> guest: the question still is out there. i mean, theoretically, if you could do it in a rational way, and if you could do it in such a manner that it really does

deter, that it really does better than anything else serve society's demand for retribution, its interest in retribution, should you still have it? well, it's not brain surgery. the facts are out there. and i think everyone should be looking into their own heart and make their own decision on the morality of the death penalty. we offer no opinion on that at all. but only as a practical matter it doesn't seem to work the way anybody had hoped. >> host: and, well, i know that the discussion -- it's an involving discussion about the death penalty, and i was curious as to when you were doing your research, was there any case that kind of stuck out to you that you think might have gone a little differently if it had been done or tried today? >> guest: well, you know, i've been trying to to predict what the supreme court will do for many years -- >> host: yes. [laughter] >> guest: and with my closest friends, we sometimes bet dinners on them. to get the right answer, you

think you have to study the case. that's not the way -- you want to get the right answer, you look at the court. and i think of the court as one organism with a multiple personality disorder, and how is it going to go this way, and how is it going to go that way. and it really does depend on the court. one of the things we've found is that the court has been equally divided on this issue for many, many years. and if there's going to be any change, it's going to be as a result of the change in the composition of the court. get a few more justices who oppose capital punishment, a few more states do away with it, and you could find authority in the court. not today, not tomorrow, but somewhere down the road saying, we've had it. we're not going to do it anymore. you do find that no state is adopting it fresh. the number of states slowly are moving away from it. and you're also finding that juries are, have become less prone to return death sentences.

there are a number of reasons for that. it seems, for one, when you have capital punishment, that the public doesn't want -- and when you don't have it, then the public cries out for it. but also you had a very important supreme court decision which we reference in the book. we don't go into a great deal of detail about it. but the supreme court has held that if there's an alternative sentence of life in prison with no parole, juries must be advised of that. if they're not advised of that, you've got to do it all over again. so when juries know they have that choice, death or life without parole, the person will never see the light of day again outside of a prison wall, we find that they're more inclined to vote for life in prison. one of the -- we talk about it being arbitrary and capricious. one of the strange things we note, there are now about 15,000 homicides a year in the u.s. that's down over the last few years. several hundred death sentences a year. but over the last three or four

years, we've been averaging about 40 or 50 death sentences, executions. so you see it's out of whack. so many death sentences, so many homicides, but so few executions. gregg v. georgia was argued, robert bork says, yes, it's arbitrary and capricious only in the sense that maybe the killer's deserving of the death penalty and doesn't get executed when they should. that's no reason to do away with it, but maybe it is. look at it this way. what if you're, say, pick a card, and you pick the wrong card. you're going to die. well, nobody would go along with that. that's by or czar. bizarre. but in a way, as a practical matter, that's the way this seems to play out. you have no way of knowing who's going to be given a death sentence or whether that sentence will actually be carried out. except you do know that if the victim is black or if the victim is white or a victim is -- the perpetrator is poor, doesn't have any money, the death

sentence is more likely than if not. and those are factors that should not play into it at all, but they do. >> guest: the future of the court and its composition is one factor. but what's happening in the states is interesting. tim and i both live in maryland where there's an interesting microcosm of the state. for two legislative sessions, 2007 and 2009, there were efforts pushed by the governor to repeal the death sentence, the death penalty in maryland. that effort didn't succeed until just two months ago. the public opinion about the death penalty is interestingly enough in maryland is in favor of it. but the supreme court is soft. most of the people who support the death penalty also feel that it does not deter crimes. so it's -- things are changing at the state level. >> guest: one of the worst crimes in the book, it was in one of the victim impact cases i was referring to earlier in

maryland involved one of the worst crimes, a truly cold-blooded killer in 3-d. it was just horrible. most of people on death row die of old age like the rest of us. and it doesn't -- >> guest: and there's the matter of closure. if a relative gets murdered and the person gets a death sentence, you can be sure there will be 15-25 years of reviews and agony before there is closure. booth has a parole, has a hearing -- >> guest: about once a year. and one of those we're told by the victim's daughter, he looked at her and winked and said see you next year. now, how bad is that? where if you want closure, maybe -- they feel, the family feels the only closure that would mean anything to them would be for booth to be put to death. but real closure, in our view, might be more meaningful if you had a life sentence and all the

appeals went away. but with the death penalty, the appeals don't go away. and congress has tried to short circuit those appeals creating other concerns that maybe someone will be executed who is innocent or whose rights were viewlted at trial. we don't want that either. one of the things we're finding, this country does have a very strong commitment to what's called due process law, sometimes referred to as simple or fair play, but it's a lot more. we want there to be strong rules to protect all of us. and with those rules in place, we have to ask ourselves maybe our society being what it is, maybe we have made it impossible to implement capital punishment in a meaningful way. to be meaningful, it must be swift, and it must be certain. well, it's not going to be swift, it seems, with all the protections we now have in place. what do we do? do away with the protections. that's not the answer. >> host: well, that's an interesting question.

the point that you made earlier about how it's much more difficult or less likely for juries to necessarily, um, go the route of the death penalty, and i was curious if you thought that, um, you know, why that was? i know that your book kind of talked about the history of, um, actually excuses, how they were -- executions how they were once public, and that became a bit disturbing, and they then took it indoors. but it's an interesting evolution, and just to think about where we are today, you think that, you know, the quality of the evidence that now is available, is that the reason for the special attire? why do you think that is? >> guest: we're learning more and more about evidence. i mean, what we used to take as goes pell about forensic -- gospel about for instance bic evidence, hair samples, for example, is now a whole new question given the fact that there have been terrible forensic guidelines that led people in the wrong direction. eyewitness testimony, we're now learning, is less and less reliable.

there's a lot we're learning about how the process works that we hadn't before. >> guest: and as you mentioned earlier, the evolution of dna evidence gives, i think, jurors greater pause and more uncertainty about employing a death sentence unless they're absolutely certain. i mean, in maryland before it abolished capital punishment, passed a law saying you either have to have dna evidence establishing guilt beyond a reasonable doubt, or the crime must have been committed on videotape or something equally compelling for anybody to be given the death sentence. the concern is great, and in illinois, had the death pen many years -- penalty many years, and the governor said, you know, research by the innocence project and northwestern law taunts showed mistakes are made left and right. and i think jurors know about that. if proof is truly beyond a reasonable doubt, it has to be beyond beyond a reasonable doubt. for them to return a death sentence. and i think that's one reason

why you don't see as many. >> host: and i thought that your point about the different impact that it's having on certain communities and, you know, especially with what's been going on in maryland was an interesting point. and, um, i just wanted to kind of go boo that a little bit -- into that a little bit as it applies to the research and the cushion -- the discussion that you had in your book. >> guest: well, there's the flipside of maryland and i'll, and that would be texas where there's no inclination there that they want to do away with capital punishment. and anyone who's running for office who proposes as much isn't running very long or isn't running very far. so, i mean, there are pockets that really cry out for capital punishment. and i don't think that's going to change. >> guest: georgia is another. and there's an interesting phenomenon in georgia going on right now. there is a shortage of chemicals with which to kill people, because the manufacturers of the traditional lethal cocktails have one withdrawn permission for those to be used in

execution. they're not available. the state of georgia is in a quandary because its limited supply just expired. the expiration date on the test tubes for their lethal injection make it impossible for them to inject them into anybody for any reason. now they have -- the state legislature just passed a law awaiting the governor's signature which imposed secrecy on fact that compounding pharmacies might be hired to put chemicals together to be used in executions. under that law it would be a state secret about what the chemical was, a state secret on who manufactured it, a state secret about any physician helped in the process. we're talking about capital punishment going undercover in a way that i think is pretty scary. >> guest: and, you know, there are efforts to fight this. there's a human rights organization in atlanta that's been very helpful, the student

center for human rights, which is trying very hard to see, among other things, that these inmates no matter how -- these defendants no matter how guilty they may appear at least have adequate representation. but, and also to make sure that these cases are exposed and that cameras are allowed in the courts in georgia to see what's going on there. because i think a lot of people would be surprised. it doesn't work out as we think. >> host: and just to talk on that point as to when adequate representation, like insuring that that actually takes place, at what point do you find in your research as you find it absolutely essential that this, um, you know, take place? >> guest: well, as you know, it's 50 years ago this month, no, 50 years ago last month, march, that the supreme court called in gideon v. wainwright that in all state courts anyone charged with a felony should be entitled to counsel. and we find in many parts of the

country that what they call adequate, effective assistance of counsel is nothing more than having a lawyer there who says here's the deal, 25 years to 50 years, you should plead guilty. that happens. and people are pleading guilty to crimes because that's the best deal that i'm going to get. i'm going to have to go to trial, and you think i might be convicted? that does happen. now, i do think that judges go to greater lengths to assure effective counsel in death penalty cases, but still we have cases where lawyers failed to show up, where they showed up drunk in a double murder case, where the lawyers make mistakes that clearly would have prevented a death sentence, and it's too late. we just recently had a case before the supreme court where the inmate got lawyers, but his new lawyers didn't get the information they needed about the case, and it was overlooked. and we actually had some

justices saying, well, that's too bad. he still should be executed. i mean, the system broken. wherever you are on capital punishment, this is louis powell and harry what blackman saying a long time ago. that wherever you are on the moral question, you have to first get to the practical question, can we do it in a meaningful, rational way, and their conclusion is we haven't. >> host: well, gentlemen, i want today thank you so much -- >> guest: kimberly, it's been a real pleasure. >> host: theit's just been an absolute treat, and i really appreciate it. >> guest: thank you. it was a pleasure being with you. >> host: thanks so much. >> that was "after words," booktv's signature program in which authors of the latest nonfiction books are interviewed by journalists, public policymakers, legislators and others familiar with their written material. "after words" airs every weekend

on booktv at 10 p.m. on saturday, 12 and 9 p.m. on sunday and 12 a.m. on monday. you can also watch "after words" online. go to booktv.org and click "after words" in the booktv series and topics list on the upper right side of the page. >> the title, saving justice, comes from bob's decision not to resign after the saturday night massacre which, by the way, he thinks should have been called the saturday night involuntary manslaughter. [laughter] because nixon didn't plan it, but just blundered into it. bob believed that the president has the authority to control everyone in the executive branch and to fire insubordinate personnel. and cox had proclaimed his insubordination on national tv. whether a president is wise to exercise that authority is for

history to decide. attorney general richardson had promised the senate that he would maintain a special prosecutor in place. and he thought, therefore, that he had to resign when nixon asked him to fire cox. but bob bork had not made any such promise, and he thought that the president is entitled to dig his own grave if he insists. he also thought that he should not gain by the deed and certainly should not appear to be a toadie. so he planned to fire cox and quit. richardson and the deputy attorney general talked him out of resignation. there was no line of succession in the department of justice after the solicitor general, so if bob had walked the plank, the department of justice would have been leaderless. no one knew who the president might install. richardson, the deputy and bork

all feared that it would be a political shill leading the assistants attorney general and much of the department's senior leadership to resign and crippling the department. to bob bork saved justice by staying. had he quit in protest, he probably would have been treated as a national hero and confirmed to the supreme court in 1987. perhaps he would have been appointed by president ford in 1976 to the seat that went to john paul stevens. he was on the list that edward levey sent to president ford of possibilities. but had he quit, the nation as a whole would have suffered. so he stayed in office in the sg's office. he was so determined not to benefit, that he turned down an opportunity to be appointed as attorney general, he turned down the chance the work from the attorney general's more elegant office, he avoided the attorney general's private dining room, and he even turned down the

attorney general's chauffer and limousine during the time he was acting attorney general. i can't say much more about those times. they occupied the last six months of 1973, and i did not arrive in the solicitor general's office until mid 1974. but, bob bork -- but everything bob bork says in his book he said in 1974 too. richardson and the people who worked with him most closely then, such as edmond kitsch and keith jones, tell the same story. and bork's narration in the book is entirely consistent with the man i knew for 40 years. intellectual, considering consequences before acting and absolutely honest. he's also the funniest man i ever met. that didn't come through in his 1987 hearings, but the book is full of his wit. [laughter] the life of a solicitor general, like the life of a judge, is

reactive. other people decide what suits to bring, the solicitor general controls the government's presentation in those suits to the supreme court. what petitions to file, what responses to file, merits briefs, oral argument and the solicitor general also decides when the government will appeal an adverse decision by a district court or seek rehearing en banc in a court of appeals. the solicitor general has authority to decide when, if at all, to participate as amicus curiae in the supreme court or a court of appeals. it's a broad portfolio and requires a large base of knowledge, plus the ability to learn fast. the solicitor general does not control who litigates about what, and he doesn't start the process within the justice department. cases that arrive are farmed out to the litigating divisions; civil, criminal, civil rights, antitrust, tax, lands and natural resources and the environment. they make recommendations can

which go to the sg's assistants and deputies. sometimes there's an internal conflict. the department of justice includes the bureau of prisons in the criminal division, and those people always want to defend wardens and guards in suits by prisoners. the civil rights division tends to favor the prisoners. somebody has to resolve those fights. or an assistant to the solicitor general may think that the criminal division's statutory theory of prosecution is weak. the solicitor general has to resolve those issues personally. bob bork conducted many conferences not only to settle fights within the government, but also to hear presentations by private counsel. it's one of the office's traditions that anyone -- a litigant, a potential amicus curiae -- can be heard by the solicitor general personally before the united states files a brief in the supreme court. bob prepared carefully and asked

sharp questions at these meetings. as he said in the book, he tried to advance the positions of the executive branch, not his own views. i never saw him favor his own position and never saw him misunderstand an argument. >> you can watch this and other programs online at booktv.org. >> here are some of the latest headlines surrounding the publishing industry this past week. the penguin group has announced that a biography of margaret thatcher will be released on tuesday, april 23rd, a week after the former prime minister's funeral. margaret thatcher, the authorized biography, volume one was commissioned in 1997 under the condition it would be released following ms. thatcher's death. the biography is written by former telegraph editor charles moore. this week barnes & noble has announced the release of nook press, the company's new self-publishing platform. nook press allows