Correspondence from Amsterdam to Guinier

    @l New York University
A privale univenity in the public service

School of Law
Faculty of Law

4O Washington Square South, Room 327

New York, N.Y. 10012
Telephone: (212) 598-2638, 2639

Professor Anthony G. Amsterdam

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March 31, 1983

Lani Guinier, Ese.
N.A.A.C.P. Legal Defense Fund
10 Columbus Circle, Suite 2030
New York, New York 10019

re: Maggie S. Bozeman

Dear Lani:

Please forgive both my delay in getting back to you about
the Bozeman habeas petition, and the form of this response. I
was cornpletely jammed up between a wall-to-waII teaching schedule
and several deadlines in death cases during the week prior to
March 26, when I had to go out of town. I took the Bozeman peti-
tion with me to read on the plane.

As I read through it, I began making marginal notes to my-
self in red, indicating points I should mention when we dj-scussed
the petition. The notes multiplied, and aL some p-oiut I decidecl to
start addressing the notes to you, as a more efficient way of
communicating my paragraph-by-paragraph reactions, at least in
the first instance. But the earlier notes remain more cryptic
than they would have been if I had written them to be read by
someone other than myself, and all of the notes are execrably
scrawled the result of air turbulence and crowded seating aboard
plane. Despite these failings, it seems to me efficient to send
you the marked-up draft before we talk, leaving it to you to de-
cide what we can most usefully talk about in the liqht of my
written comments. But the legibility of the comments is poor, and
I'm sorry.

Let me identify here the three major suggestions that run
through much of the detailed commentary, in the hope of orienting
you to the forest before I bury you in a maze of red foliage:

(I) The present form of the petition commingles (a) factual
a habeas pet..-tionallegations which are appropri-ately pleaded in



Lani Guinier, Ese.
March 31, 1983
Page Two

itself, with (b) argumentative matter which should be removed
from the petition and put into a supporting brief or memorandum
of law. Obviously, the job of turninq one document into two is
more complicated than simply pulling some sentences or paragraphs
out of the present draft and putting them into a separate memo.
Both the material that remains in the petition and the material
which is transferred into the memorandum will have to be amended
to maj-ntain the internal continuity of each document; and some
matter which is left j-n the petition (usuaIIy in abridged and
more lj-near form -- i.e., simple declarative sentences apt for
strictly factual allegations) will have to be repeated in the
memo (in the form of factual argument interwoven with legal argu-
ment). But I have tried to note in a general way from paragraph
to paragraph what should stay in the petJ-tJ-on and what should be
moved into a memo/brief.

(21 I suggest cutting two of the three contentions made
in Part B, as too weak to fly. These are the contentions identi-
fied in the second paraqraph numbered 31 on page 12 as items (f)
and (ii1. The reasons why I think they are weak are set out on
pages 15 and L7 respectively. I would suggest integrating the
third strand of present Parb B -- that is, item (iii)jnthe second para-
graph numbered 3I into Part C as an alternative formulation of
one of the two separate aspects of Part C (see page 19). For the
suggestion that Part C be more subdivided into two related claims,
see page 22.

(3) I suggest other structural reorganizations. You will
find that some proposals for moving pieces around are first made
in "maybe" form (e.g., pages 22,23) and later hardened up into
"probably" form (page 281 i others emerge only by collating my
notes at several locations. Since none of this presents a co-
herent map of the kind of overall organization that I have in mind,
I enclose a three-page block-printed outline which might do the
job. This, dt leastr wds the product of an airport layover and is
more legible than my scribbling on the draft. Whether it makes
any more sense substantively, I don't know.

1'1I be happy to talk wj-th you about Bozeman if you think,
after looking over tfrese notes, thal that woulcl be useful. Just
give me a buzz, okay?

Keep well.

Best,

AGA:Ira
(Dictated by Mr.
and signed in his
Enclosure

Amsterdam
absence)

Anthony G. Amsterdam



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