Vol. 7 No. 6 (June 1997) pp. 292-293.

WATERGATE VICTORY: MARDIAN'S APPEAL by Arnold Rochvarg. Lanham, Maryland: University Press of America, 1995. 265 pp. Cloth $36.00.

Reviewed by Robert L. Dudley, Department of Public and International Affairs, George Mason University.
 

A search of the Library of Congress under the subject heading Watergate yields 232 publications. Given that, do we really need another book on Watergate? Obviously Arnold Rochvarg believes we do, for he has written a slender but detailed book about Robert Mardian's appeal of his Watergate conspiracy conviction. More than twenty years after the trial, Mardian, a minor figure in the Watergate affair, is best remembered, if remembered at all, as a codefendant of the notorious trio of John Mitchell, John Ehrlichman and H.R. "Bob" Haldeman.

Written in the first person, the book is simultaneously the story of an appeal and the memoir of a young law school student. Rochvarg, a former law clerk for the firm that represented Mardian, recounts, in a sparse style, his personal experiences in preparing the appeal. Thus much of the book is devoted to illustrating the author's professional growth from a naive student enamored with the law to a seasoned skeptic. Typical of this growth is the author's realization, after finding what he considered errors in Judge Sirica's handling of the Watergate trial, that criminal convictions may not always be fair. Understanding that the Watergate trial may not have been flawlessly conducted, Rochvarg muses, "If it turned out that the Watergate trial was unfair, I thought about how unfair the typical criminal trial must be for a defendant."

Aside from the personal story, the author tells us that the book has two purposes. The first is to demonstrate that Robert Mardian was "unfairly convicted." As a secondary objective Rochvarg claims that, "The book also explains much about the appellate litigation process, an aspect of our legal system which tends to be less understood than the more familiar trial process."

On this last point, few readers will learn much new about the appellate process. There is an abundance of detail here about this particular appeal and readers certainly get a sense of the endless hours spent combing documents and rechecking facts. If one needs an antidote to the glamorized version of legal practice portrayed by legal thrillers, this book will provide it. The author also provides thorough discussions of the issues of agency and the law regarding multiple conspiracies. Indeed the coverage of differences between chain and spoke conspiracies is handled very well. There is, however, little here about the appellate process that is generalizable or new. The real strength of this book is its zealous defense of Robert Mardian. In its thirty-five brief chapters, the book meticulously walks the reader through each aspect of Mardian's case. Brick-by-brick, the author shows how the appeal was built. Each overt act associated with the conspiracy of which Mardian was convicted is laid out and the pertinent facts and law are examined. The testimony of the various witnesses is scrutinized and contradictions are exploited to prove Mardian's case.

Particularly interesting is the lengthy discussion of the infamous Watergate tapes. Although Mardian never appeared on any of the tapes admitted at trial, his name did arise five times. Rochvarg argues, rather convincingly, that the introduction of these tapes severely prejudiced Mardian's case. The problem, as Rochvarg sees it is that, "the mere mention of Mardian's name by Nixon and by Ehrlichman in the context of their conspiratorial conversations was very damaging to Mardian." The issue is all the more acute because all of the taped references to Mardian constituted hearsay and even double hearsay--as, for instance, when Ehrlichman reported to Nixon a statement attributed to Mardian by John Dean. Did Judge Sirica err in admitting the tapes or were they covered by recognized exceptions to the ban on hearsay evidence? Rochvarg emphatically declares Judge Sirica wrong. Unfortunately we will never know since the Court of Appeals did not squarely answer the Sixth Amendment questions raised by the tapes.

A ruling on the admissability of the tapes was avoided because the Court of Appeals overturned Mardian's conviction on other grounds. In an almost anticlimactic decision the court ruled that Mardian's trial should have been severed from the other defendants. Even here, however, the court took a very narrow view of the issue. Judge Skelley Wright's opinion for the court upheld the initial denial of the pretrial motion for severance, but ruled that Judge Sirica should have granted severance when, two weeks into the trial, Mardian's lead attorney became ill and was forced to withdraw.

Perhaps because the ruling was so narrow, Rochvarg works diligently to prove that Mardian was not just unfairly tried but innocent. Indeed in the book's final chapter Rochvarg asserts, "As to whether Mardian was guilty, if I were on the jury, I would have voted not guilty." Clearly, not all readers will share the author's belief in Mardian's innocence, but the book does raise serious doubts that cannot be easily ignored. Rochvarg has defended a former client with bravado and skill. Mardian should be pleased.

In the final analysis, this is a slim book about a narrow topic. It is unlikely to be of great interest to the general reader. Watergate buffs and scholars interested in the Watergate trials, however, will find the book worthwhile. When, as seems inevitable, the revisionist histories of Watergate are written, Rochvarg's book will provide a useful resource.


Copyright 1997