Guest: Kenneth Eichner on MIND YOUR PLEAS AND BARGAINS

My guest today is Kenneth F. Eichner, a former prosecutor and author of D.A. Diaries. He has tried almost 140 jury trials and reports that he has been in court every week since 1983.

“Fifteen years in jail? That’s nuts!” exclaimed the defendant, turning her head towards her silent defense attorney.

“You should have thought of that before you burned down your boyfriend’s house,” says the prosecutor, his voice dripping with indignation.

How many times have we seen this plea bargain scene in the stereotypical Law-&-Order-ish legal drama? As a practicing attorney and author of legal fiction, these scenes are nails on a chalkboard. The truth is that prosecutors do not plea bargain with defendants; prosecutors negotiate with the defendant’s attorney. Maybe one percent of the time a defendant in a big case goes it alone, but the rest of the time the accused has a public
defender or private counsel and does not even attend a plea bargaining session.

And here’s the real cringer: if the defense attorney was stupid enough to allow the client to attend a plea bargaining session, the client would be told not to speak. I think of attorney Brendan Sullivan, who represented Oliver North in the Iran Contra Hearings. In response to repeated questions directed to his client, Sullivan famously said, “what am I? A
potted plant?” Attorneys speak for their clients–it is the quintessential duty attorneys have. Sure, there is drama to be found when the noble prosecutor confronts the villain, but these exchanges just do not ring true.

The trick, then, is to render that drama in a more realistic canvas. For example, the attorney can boisterously fight on behalf of his client during the plea session. Or, more realistically, the attorney can fight with his or her client in relating the possible plea agreement:

“You have to take this deal – you go in front of a jury and they
will crucify you,” the attorney spoke with cold precision, emotionally removed
from his client’s peril.

Indignantly, the defendant rolled her eyes and crossed her arms.
“Whose side are you on? I thought I could trust you.”

Admittedly not National Book Award material, but I think you get
the gist.

***

Kenneth F. Eichner has worked as both a prosecutor and defense attorney. His trials include a number of high-profile cases that have been covered by The Washington Post, The Denver Post, and 60 Minutes. He began his career as a deputy district attorney for six
years in Prince George’s County, Maryland. For the past 16 years, he has worked on the other side of the aisle as a defense attorney in Denver.

For more information about D.A. Diaries and to view the trailer,
visit his website.

And if you’ve got a copy of Books, Crooks & Counselors, the factors considered in reaching a plea agreement are discussed on pp. 95-96.

 

How to Tell a Judge He (or She) Screwed Up

My guest today is retired judge Bill Hopkins, author of Courting Murder, published in OCtober 2012 by Southeast Missouri University Press. 

“When Judge Rosswell Carew makes the gruesome discovery of two corpses on a riverbank in the Missouri Ozarks, he’s plunged into a storm of deadly secrets that threaten both him and his fiancée, Tina Parkmore. Unsatisfied with the way the authorities are conducting the investigation, Rosswell, who’s always nurtured a secret desire to be a detective, teams up with an ex-con, Ollie Groton, to solve the case before the killer can murder again. Rosswell uncovers a maze of crimes so tangled that he must fight his way to a solution or die trying.”

(The information in this blog is drawn from The Honorable Robert W. Gettleman’s article in the American Bar Association’s Section of Litigation’s Practice Essentials articles, available online here, and from my twenty years on the trial bench and five years as an administrative law judge.)

“I’m going to tell you how to diplomatically tell a judge that he (that’s used as an inclusive pronoun) has screwed up. You can use this information in your writing when you want your character–whether it’s a judge, lawyer, or party to the lawsuit–to realize that something bad has gone wrong during a lawsuit.

This article covers only criminal jury trials.

If you use the methods outlined here, you’ll no doubt get fewer nasty letters from lawyers complaining that you’ve mangled the legal system, but this information is being given as is, with all faults, and there are no warranties, express or implied. (I’ve been waiting years to use that useless phrase.)

Know your stuff. I’ve made my share of errors and have received nasty reviews from appellate courts. But your judge should know his stuff. If he makes a mistake on the admission of evidence, then you must do your homework and find out what the correct ruling would be. Let’s say that your jurisdiction does not allow a spouse to testify against the other spouse. The prosecutor in your case has a wife that’s dying to spill the beans on her husband (the defendant). The defendant objects but the court (that’s what lawyers call the judge when they’re trying to be nice) allows it. You will have to learn about privileged communications in your state and why the judge’s ruling is wrong.

Ask for a sidebar. That’s when the judge and lawyers discuss something out of the hearing of the jury but in front of the jury. Juries are human and when you do that, the jury will think that what just happened (i.e., the error the judge made) is a lot more important than it really is. If you want your character to bring attention to the error, have him ask for a sidebar. If you want him to minimize the error, have him ask for a short recess.

Your character must always be respectful towards the judge, regardless of what kind of idiot you have sitting on the bench. Once a judge makes a ruling in the courtroom, all argument ceases, unlike what I’ve witnessed in television shows, movies, and books. Muttering and eye rolling doesn’t impress the judge, much less continued arguing.

If the error is that the judge sustained an objection to a question that is clearly okay to ask, then have your character rephrase the question. If your character is the prosecutor and he asks, “Officer, was the defendant drunk?” and the defendant’s objection is sustained, have the prosecutor start over. “Officer, did you have reason to believe the defendant had consumed alcohol?” And so on.

Always make a record. One of the best things I learned in judges’ college–yes, there really are such things–was to make a record. If your character wants a bloody iron pipe entered into evidence and the court sustains the other party’s objection, then he should make an offer of proof. (This is often done outside the hearing of the jury.) The lawyer who wants the pipe entered into evidence will have a chance to show and tell the judge why the pipe should be entered into evidence. Unless your character is the prosecutor (most of the time, a prosecutor can’t appeal a not guilty verdict) and the judge still refuses, then, assuming your character is convicted, he will have a record to show the court of appeals.

Writers are constantly asking me legal questions for their stories. I’m happy to answer them, but the best answer is usually, “Ask a lawyer or judge in your area.” If you live in a big city, that may be a bit harder than living in a rural area where people are more likely to know each other. But, for example, if you live in a big city, go visit the courthouse and watch a few criminal jury trials. If you’re polite and have a business card showing the judge or a lawyer that you’re a writer, they may be willing to answer hypothetical questions.”

***

Bill Hopkins is retired after beginning his legal career in 1971 and serving as a private attorney, prosecuting attorney, an administrative law judge, and a trial court judge, all in Missouri. His poems, short stories, and non-fiction have appeared in many different publications. He’s had several short plays produced. A book of collected poetry, Moving Into Forever, is available on Amazon. Bill is a member of Mystery Writers of America, Dramatists Guild, Horror Writers Association, Missouri Writers Guild, and Sisters In Crime. Bill is also a photographer who has sold work in the United States, Canada, and Europe. He and his wife, Sharon (a mortgage banker who is also a published writer), live in Marble Hill, Missouri, with their dogs and cat. Besides writing, Bill and Sharon are involved in collecting and restoring Camaros. Courting Murder is his first mystery novel.

Three Days on a Jury — Beth Groundwater: Day Three

Mystery writer Beth Groundwater continues her report on serving on a jury in Colorado. Here’s Day One and Day Two. 

Three Days on a Jury: Day Three

Yesterday and the day before, I described the first two days of my recent wonderful (for a mystery author) experience of serving on a jury for a three-day criminal trial. I’ll finish that story today by describing the last day, including jury deliberation.

Throughout the three days, I had a chance to get to know the other members of the jury, which consisted of six women and six men. There were many times during the trial when were waiting in the jury room to be called into the courtroom. Since we were not allowed to discuss the case, we talked about other things, including the Waldo Canyon fire that was in the process of destroying the homes of three of my friends in Colorado Springs. Jury members ranged from young people just out of college or still in college to retirees. Many were missing work to serve, but all seemed to take the responsibility very seriously. Many asked me what being an author was like. One of the retirees who was an avid mystery reader even ended up buying one of my mystery novels from me!

We had one of those long delays when we showed up the third morning, spending over an hour in the jury room while the judge and attorneys wrangled over motions and the wording of the jury instructions, which had to be reprinted and copied for us. Finally, we were led into the courtroom by the bailiff, and the judge apologized to us for keeping us waiting so long. We heard the prosecution’s closing statement, the defense’s closing statement, and the prosecution’s rebuttal.

Then, the judge read the jury instructions to us as we followed along with our copies. Each of the six counts was explained, with the elements that needed to be proven to show guilt. Also, we were reminded to disregard any testimony that had been objected to and sustained. We were reminded by the judge to not use the prior victim’s testimony to judge the defendant’s character or to prove guilt in the current case, and to only to look for similar patterns of behavior. There were more instructions, some of which I think were related to rulings made prior to or during the case in response to motions made by the defense attorney.

We finally were dismissed to the jury room about 11:30 AM and were told by the bailiff that if we thought we would be deliberating for awhile, we could order lunch. We briefly discussed who should be foreman and chose one of the three people (including me) who had managerial experience–who happened to be in the bathroom at the time. 🙂 We gave him the opportunity to back out, but he didn’t mind taking on the responsibility. Then he led us into making our first unanimous decision–we wanted lunch brought in!

We spent a total of three hours in deliberation, discussing and voting on each charge. The only charge in which the first vote was unanimous was the marijuana possession charge, because it was so clear-cut. However, we all felt we were missing some pieces of evidence for the other charges. Where was the medical record of the victim’s treatment at the emergency room that night? Where was the victim’s cell phone record, which would have had the times of her text messages to her roommates from the bar, and most importantly from the bus on her way home from the bar? Where was the missing broken laptop and why wasn’t it photographed that night?

Ultimately, we voted guilty on the charges of assault, theft, and marijuana possession. We voted guilty to a step-down charge of criminal mischief, choosing the charge of under $1,000 of damage versus between $1,000 and $20,000. This was because we had a clear record of the window replacement cost (under $1,000), but no idea of the computer cost or if it indeed had actually been broken. We voted innocent on the false imprisonment charge, because we felt that even though the victim’s coat was stolen, there were blankets and other clothes in the house and other homes were nearby that she could have stumbled to. And, in the victim’s statement to the police, she never specifically said she tried to get away during the assault and he prevented her.

We couldn’t decide on one charge, disruption of telephone service, which in all likelihood was the least important one. We discussed it for well over an hour. Some people thought the cell phone could have easily been left by the drunk victim at the bar or on the bus, and since it was never found on the defendant, there was no clear case that it was stolen. Even though she said “he took my phone” to the police and her roommates, she may have assumed it was in a pocket of the coat that he took (and he may have assumed that, too).

We sent a question to the judge through the bailiff asking what would happen if we could make up our mind on five counts but were hung on one. The judge had us brought back into the courtroom to tell us that we were to try our best to reach unanimous agreement on all the charges. She read us our job description as a jury, then sent us back into the jury room to try harder. She did explain that the whole case would not be thrown out, only that one charge, and that the DA would have the option of retrying the defendant on that one charge.

After further discussion, we all agreed to remain hung on that charge, then the foreman filled out all the paperwork. We filed back into the courtroom, the foreman gave the paperwork to the bailiff, and the judge read out our decisions. Needless to say, neither the defendant nor the victim, who was in the courtroom, was happy with the outcome. But, everyone on the jury felt satisfied that we had reached a just and fair decision.

We were dismissed to the jury room while the judge set a sentencing date, then she came in to thank us for our service and hand out certificates. She also said she would try to answer any questions we had. Of course, we asked about the missing evidence we would like to have seen. She said that she had ruled that the medical record was inadmissible because the DA’s office didn’t get a copy from the hospital in time for the defense attorney to study it and prepare a proper defense. But, juries can’t be told why they aren’t seeing certain evidence. They have to make their decision just on what’s presented in the trial.

Later, when the attorneys from both sides came in to speak to us, we asked one of the Asst. DA’s about the missing phone record. She said that those are often only kept for a month, and they hadn’t gotten the request in on time. They are busy preparing for two murder trials (murder is a very rare occurrence in Summit County), and their resources are stretched thin as a result. They never know what minor cases are going to go to trial, so they often don’t start investigations right away, waiting first to see if the accused will plead guilty or take a deal.

I understand that the police and members of the DA’s office are people and people make mistakes, so no case is going to be perfectly open-and-shut. And this one did have some holes. However, I have no reasonable doubt that the defendant assaulted his girlfriend.

Being able to ask the judge and the attorneys any questions we wanted made the experience much more valuable for me, and I think it helped all of the jury members understand the legal process much better. I was gratified that there were no “poison personalities” on the jury and that we all respected each others’ opinions and were able to discuss our views openly. This was a case of the process working!

***

Beth Groundwater writes the Claire Hanover gift basket designer series (A REAL BASKET CASE, a Best First Novel Agatha Award finalist, and TO HELL IN A HANDBASKET) and the Rocky Mountain Outdoor Adventures series starring whitewater river ranger Mandy Tanner (DEADLY CURRENTS and WICKED EDDIES). The third books in both series will appear in 2013. Beth enjoys Colorado’s many outdoor activities, including skiing and whitewater rafting, and loves talking to book clubs.

Three Days on a Jury — Beth Groundwater: Day Two

Today, my guest mystery writer Beth Groundwater continues her report on serving on a jury in Colorado. Here’s her account of Day One.  

***

Three Days on Jury: Day Two

Yesterday, I began telling the story of my recent wonderful (for a mystery author) experience of serving on a jury for a criminal trial. I’ll continue that story with a description of the second day of the trial today, then conclude tomorrow with the last day of the trial, including the jury deliberation. The six charges we were to decide on included: assault in the third degree, criminal mischief (vandalism), theft, disruption of telephone service, false imprisonment, and marijuana possession.

Over the course of the second day of the trial, we heard from the prosecution’s remaining witnesses. These included the victim’s two housemates who found her and called for police and an ambulance. Both of their stories supported the responding police officer’s version of events. Also, the officers who arrested the defendant the day after the alleged assault were called to testify that they found marijuana and a pipe in his backpack. They also said the defendant claimed that the victim hit him on the head with a wine bottle and attacked him with a staple gun during the fight. And, we heard from the owner of the house how much it cost to fix the window.

One witness was a woman who had been attacked by the defendant in the past. We were instructed by the judge to not use her testimony to judge the defendant’s character or to prove guilt in the current case. We were only to look for similar patterns of behavior. And the pattern was eerily similar, both in the method of attack (punching her in the face to get her on the floor and repeatedly kicking her) and taking away the means to call or go for help (in this other case, by throwing the victim’s cell phone, car keys, and winter coat onto the roof of the condo complex). We were not told during the trial that the defendant served a three year prison term for this attack, but we learned that later after the trial from the judge.

The last witness was a psychologist who is an expert in domestic abuse. She testified for a very long time after her expertise was established. She did not know the details of this case, but she discussed domestic abuse cases in general. Domestic abuse can only occurs between two people who have an intimate (sexual) relationship, so does not include abuse between people who may be related or share a home, but don’t have an intimate relationship.

The expert explained the cycle of domestic abuse (four stages: escalating tension, attack, honeymoon period, relative calm) that repeats over and over again. She also said that victims often recant their story because they want the abuse to end, not the relationship. And, she said that victims who are under stress and in pain right after the attack are likely telling the truth then because they’ve had neither the wits nor time to construct a plausible story.

Throughout the second day, the defense attorney poked away at the prosecution’s case, showing where evidence was not collected (eg. the broken laptop, which disappeared later), where police records were incomplete or confusing (the amount of marijuana was recorded in grams in one place and ounces in another), etc. She also chipped away at the reliability of the witnesses, particularly the victim, and of the housemates, who later had arguments with the victim and were no longer friends of hers.

The prosecution rested their case late in the afternoon, and the defense called no witnesses. Again, the judge told us this was not required or needed. We were dismissed for the day, admonished again not to discuss or research the case, and told to report back the next morning for closing statements and deliberation.

***

Beth Groundwater writes the Claire Hanover gift basket designer series (A REAL BASKET CASE, a Best First Novel Agatha Award finalist, and TO HELL IN A HANDBASKET) and the Rocky Mountain Outdoor Adventures series starring whitewater river ranger Mandy Tanner (DEADLY CURRENTS and WICKED EDDIES). The third books in both series will appear in 2013. Beth enjoys Colorado’s many outdoor activities, including skiing and whitewater rafting, and loves talking to book clubs.  TO HELL IN A HANDBASKET will be re-released in trade pb and ebook on November 8th. You can find Beth online here.

(These posts originally appeared on Beth’s own blog.)

Three Days on a Jury — Beth Groundwater reports

My guest today, and for the next two weeks, is mystery writer Beth Groundwater. Earlier this year, Beth served on a jury in Colorado–an experience I’m not likely to have, at least while I’m still practicing–and shares her experience with us. 

***

Three Days on a Jury: Day One

Recently I had the wonderful (for a mystery author) experience of serving on a jury for a criminal trial. The three-day experience gave me an inside look at the Summit County, Colorado, criminal justice system, and at the lives and tribulations of what my mother would call “not our kind of people.” I’m going to blog about my experience today and the next two days, so I can share some of what I learned with other mystery authors and with mystery readers. I hope you find my experience as interesting as I did!

The trial was a case of domestic abuse (the local newspaper article if you want to read the verdict now is here.) About three weeks prior, I received a jury summons to show up at the Summit County Justice Center on Tuesday June 26th, at 9:30 AM. After checking in and waiting for another twenty minutes or so, those of us who responded to the summons were all ushered into a courtroom. The judge informed us that 90 people had been summoned and 37 had shown up. She was not pleased.

Then she went through a list of reasons why someone could be excused–doesn’t live in the county anymore (a few college students who were still away for summer classes fit this category), taking care of a disabled person, etc. Then she said the case involved domestic abuse and asked if anyone felt they could not be impartial in such a case. A few hands went up, mostly women, and she asked those people to discuss why with her privately in her chambers. Most were excused. That left just over thirty of us in the room.

Then twenty-two names were called for people to come forward and sit in the jury box. I was thrilled when I was one of them, and I began thinking that maybe I would actually get a chance to serve. The prosecution and defense could each choose five jurors to dismiss, and the remaining twelve would serve. Next, each juror answered a standard set of questions, such as which town we lived in and for how long, if we were married or had children, our occupation and those of our spouse, children and parents, if we knew anyone in law enforcement, our hobbies, sports and interests, what we liked to read and watch on TV, and what sites we visited on the Internet. The judge usually had at least one clarification question for each juror, expounding on anything that might show a preconceived bias.

Then the prosecution (two Assistant District Attorneys working together) and defense (a paid versus court-appointed lawyer) had about a half hour each to question the jury as a whole on issues or jury members in particular about their background or views. One of the Asst. DAs knew my name and about my RM Outdoor Adventure mystery series, but he was surprised that Beth Groundwater was my real name, not a pen name. I was asked WHY I wrote mystery novels, probably to see if I had any bias for or against cops or criminals or if I had preconceived notions of justice. I answered that I had tried other genres, but that mystery felt most comfortable for me, probably because I was a puzzle person.

When one man, who had previous experience with domestic abuse, said he was very interested in serving on the jury, one of the Asst. DAs asked almost in jest if anyone else really wanted to serve. I deliberately did not raise my hand, because I did not want to appear overeager. That man was dismissed from the jury, but I was not. One interesting question we were asked by the Asst. DAs was what our reaction would be if they brought forward a witness that they were pretty sure would lie to us.  There were some “Huh?” looks from some jurors at that point, as we wondered why they would call a witness they expected to lie on the stand. We found out later!

Since we’re a low-population county, quite a few people knew law enforcement personnel or members of the court system. Also, one man’s sister had been a victim of domestic abuse. As I listened to these other jurors, I thought, okay that person will be dismissed over me. And that proved to be the case. The defense and prosecution had more compelling reasons to dismiss ten other jurors, and at the end of the voir dire (jury selection) process, I was still in the box!

We were sworn in, admonished not to discuss the case with each other or other people, not to do any research related to the case, and dismissed for lunch. After lunch, the trial began and the prosecution presented their opening statement. There was no opening statement from the defense, and the judge instructed us that the defense is not required to provide an opening or closing statement, or call any witnesses or present any evidence. Nor is the defendant required to testify. The onus of proof is on the prosecution (the defendant is presumed innocent before proven guilty), and the defense doesn’t have to prove anything.

We heard testimony first from the police officer who arrived on the scene after 911 was called by two of the victim’s housemates who came home one night in December, 2011 to find her laying in a fetal position on the sofa. The story that the victim told her roommates and the officer was that she and her boyfriend were drinking at a bar and got into an argument there. He returned to her place and waited for her while she finished her beer. When she got home, the argument began again and got physical. He punched her in the face and repeatedly kicked her, threw a skateboard through her bedroom window, broke her laptop computer, and stole her cell phone and winter coat so she could not call or go for help (the house had no land-line). The police officer had taken photos of the victim’s bruised face, the broken window, etc. and these were entered as evidence.

Then, the victim got on the stand and told a completely different story. She couldn’t remember what she said to the police officer, claimed that she bruised her own face by tripping and falling on the stairs, and that during the argument she threw her own laptop computer through the window. Even when pressured by the prosecutor, who repeated statements she made to the police officer and which he recorded in his report, the victim stuck with her story. When asked by the prosecution if she still loved the defendant, she said that yes, she still cared for him and wanted to be with him, but was prevented from being with him (we later found out, by court order).

I went home that afternoon thinking, well THAT was interesting! I had many, many unanswered questions from the conflicting accounts of what happened.

***

Beth Groundwater writes the Claire Hanover gift basket designer series (A REAL BASKET CASE, a Best First Novel Agatha Award finalist, and TO HELL IN A HANDBASKET) and the Rocky Mountain Outdoor Adventures series starring whitewater river ranger Mandy Tanner (DEADLY CURRENTS and WICKED EDDIES). The third books in both series will appear in 2013. Beth enjoys Colorado’s many outdoor activities, including skiing and whitewater rafting, and loves talking to book clubs.  TO HELL IN A HANDBASKET will be re-released in trade pb and ebook on November 8th. You can find Beth online here.

(These posts originally appeared on Beth’s own blog.)

The Top 5 Things TV Crime Shows Get Wrong — Allison Leotta Tells All!

For twelve years, Allison Leotta was a federal prosecutor in Washington, DC where she specialized in prosecuting sex crimes and domestic violence.  

She is the author of the acclaimed thrillers LAW OF ATTRACTION and DISCRETION.  She also blogs about what TV crime dramas get right and wrong.  Her blog, The Prime-Time Crime Review, was named one of the best legal blogs in America by the ABA.

I’ve always loved TV crime dramas, but ever since I began working as a federal sex-crimes prosecutor, I watch shows like Law & Order and CSI with a more jaded eye. The stories are still fun . . . but they get some facts so wrong, I end up laughing when I should be gasping. Here are the top five mistakes TV crime shows make:

1. You won’t get fingerprints off that gun.

Sorry, not gonna catch the killer that way. Usable prints are notoriously tough to get, and guns are the worst surface to get them from. A combination of conditions – dry skin, too much humidity, textured rubber or metal – conspire to wipe the gun clean, even if the shooter didn’t do it himself. When I use a fingerprint expert, it’s usually to educate the jury on why there aren’t prints on the gun.

2. Most rapists don’t lurk in bushes.

Rapes committed by strangers do happen, and get a lot of media coverage when they do, but usually a rapist is a man the victim knows intimately: an ex-boyfriend or stepfather; her doctor or minister; a teacher or coach; a professional colleague or the guy she invited home from a bar. I no longer worry about someone breaking in through my window – but I’m more cautious about who I’ll open the door for.

3. Prosecutors don’t wear stilettoes.

Female prosecutors on TV sashay to court in four-inch Manolos. But real prosecutors are on their feet all day and often lugging big boxes of exhibits, so comfy shoes are key. The seasoned female prosecutor wears mid-range heels: you look nice for the jury but won’t break a toe when you stand to object. Sometimes the walk to the courthouse is done in flip-flops, with a quick switcheroo right before the judge takes the bench.

4. Most victims aren’t beautiful young heiresses who secretly work as strippers.

But you already knew that.

5. The bad guy will never confess with his lawyer sitting right there.

You know the scene. In a dingy jailhouse meeting room, the prosecutor badgers the defendant until he sobbingly confesses: “Okay, I killed her! I had no choice!” Meanwhile, the defense attorney sits there looking mildly constipated. A real defense attorney is as likely to let his client be questioned by the prosecutors as a lobster is to throw himself into a pot of boiling water. Defense attorneys know the vast majority of their clients are guilty – and any time a defendant opens his mouth, he risks revealing that. As a writer, I understand why this scene is so popular – the prosecutor hero needs to find out what really happened, and only the killer can say for sure. But it’s pure fiction. (That said, I will always have a crush on Sam Waterston, the maestro of this scene on Law & Order.)

National Missing Children’s Day — Dr. Betty Kuffel on stopping child abductions

My friend Betty Kuffel, MD is author of Eyes of a Pedophile: Detecting Child Predators. Her book is available free from Amazon Kindle for 24 hours on May 25th in commemoration of Take 25 Day, a day when parents are urged to take 25 minutes to talk with their children about safe behavior and avoiding abduction.

Get the download at Betty’s website

—–

Convicted pedophile Jose Antonio Ramos remained the primary suspect in the disappearance of Etan Patz for three decades until last month when investigators reopened the case. The new search focused in the basement of a building near Etan’s home where a handyman neighbor worked. Suspect Othniel Miller denies involvement but was reportedly seen with Etan the night before his abduction.

Now, NY investigators are focused on Pedro Hernandez. Details have not been released but the man was taken into custody on Wednesday, May 23. Hernandez was interviewed as a suspect in the past. This may be the break in this case we have been waiting for.

The morning Etan disappeared he left his home in lower Manhattan, NY, to walk alone two blocks to a school bus stop. The extensive local investigation, coupled with widely distributed photos of Etan, triggered the missing children’s movement of today. The National Center for Missing and Exploited Children (NCMEC) estimates 2,000 children per day are reported missing. Many are located unharmed, but like Etan some are never found and unfortunately, the latest search produced no new evidence.

In 2007, the NCMEC joined with other organizations across the US to raise awareness for child safety and keep kids safer through education. In their Take 25 campaign, they encourage parents and guardians to take twenty-five minutes on May 25 to talk to children about safe behavior and how to avoid abduction. National Missing Children’s Day has been observed annually on May 25 since 1983 in  commemmoration of the day in 1979 when six-year-old Etan Patz disappeared.

From the tragedy of Etan’s and other high profile cases of child abduction many improvements in safety, education, prosecution and ways to rapidly locate missing children have occurred. The Code Adam alert was devised after the 6-year-old son of John Walsh (host of America’s Most Wanted) was abducted from a department store in Florida and later found murdered. First started in Walmart stores, this rapid response mechanism is designed to stop a child abduction in progress. Now broadly used in malls and public buildings, if a child is reported missing, a Code Adam alert results in an immediate lock-down.

In the aftermath of two other child abductions, Jacob Wetterling and Megan Kanka, the tireless work of their parents stimulated the US Congress to pass a law mandating registration of sex offenders to alert neighbors about their residential locations.

Statistics show finding an abducted child quickly is prime for a safe return. Over 500 children have been recovered since the development of the AMBER Alert system. Named for Amber Hagerman, a nine-year-old abducted and murdered Texas girl, this alert results in rapid dissemination of information about missing children. Call 9-1-1 if you witness an abduction. Describe the child, perpetrator, incident, location, vehicle and license number. If the missing child is thought to be in imminent danger, law enforcement issues the Amber Alert which interrupts radio and television broadcasts with details. Electronic billboards along highways, the Internet and smart phones flash the information.

In cooperation with local agencies, ten FBI Child Abduction Rapid Deployment (CARD) Teams are on alert. Covering five regions, the experienced personnel provide resource support and investigative tools including electronic mapping to identify and locate known sex offenders residing near the abduction location. Partnership of the public with law enforcement is essential for interactive systems to work. But educating caregivers and children to take action to avoid abduction is also key. There are many safety tips at the NCMEC www.take25.org website.

Talk to your children about safety on May 25th. Try using discussion scenarios like “What if…What would you do?” Walk through the neighborhood with your kids and show them safe homes to seek refuge in an emergency. Teach crowd safety. Point out situations of potential danger. Tell your kids to avoid traveling alone and if grabbed, scream, kick and try to escape.

May 25th is a reminder day for what caregivers should do all year long to keep children safer. Like the FBI CARD Team, check online at www.sexoffenders.com and learn addresses of convicted sex offenders near you, particularly the more violent Level 3 offenders. One may be living next door.

Taking the Mystery Out of Writing — A Therapist’s View

Struggling with your story or your screenplay? Not sure you know how to develop a credible motive or build a suspenseful plot? Dennis Palumbo, who became a therapist after a career as a screenwriter and now writes mysteries, writes a regular column, Hollywood on the Couch, for Psychology Today’s online edition. In Taking the Mystery Out of Writing Mysteries, he says the answer lies in the characters–and gives good, practical advice for solving the mystery of writing a mystery.

Dennis’s book Fever Dream (Poisoned Pen Press), second in a series featuring psychologist Daniel Rinaldi, a trauma expert who consults with the Pittsburgh Police, has just been released. For more, visit his website.

 

Thanks, Dennis!

Administrative Law Judges — a character for you?

As a practicing lawyer, I meet judges in the courtroom, or the less formal and more cluttered setting of their offices, known as “chambers.” At Bouchercon 2011 in St. Louis, I met judge and mystery writer Debra H. Goldstein in the casual atmosphere of a Sisters in Crime presentation. Today, Debra offers writers an insight into the work of a little-known part of the judiciary, the Administrative Law Judge.

Fictional trials often are presided over by black-robed judges sitting in wood-paneled courtrooms in stately old courthouses. Many writers fail to distinguish whether it is a state or federal trial or if the judge actually would hear the subject matter of the case. Occasionally, the type of judge and jurisdictional area becomes the cause of a character’s dilemma. In Miracle on 34th Street, the judge’s political advisor makes it clear that the judge’s decision whether Kris Kringle is Santa Claus directly impacts his state court re-election chances, but most of the time writers are silent as to these details. As a federal Administrative Law Judge, I cringe when writers have fictional judges hear matters outside the scope of their authority, but it does help me remain one of the best kept secrets in the federal judiciary.

Federal Administrative Law Judges (ALJs) preside at trials between government agencies and individuals affected by decisions made by that agency. Unlike Article III judges who are appointed under Article III of the US Constitution and confirmed by the Senate, ALJs are merit-appointed Article I judges whose authority and insulation from political influence comes from the Administrative Procedures Act of 1946 (APA). They hear cases when a person or corporation exhausts all administrative remedies and asks for a hearing.

There are approximately 1400 federal Administrative Law Judges. Over 1200 of them hear Social Security Administration cases while the remainder handle matters arising from thirty-one other agencies. These APA-sanctioned cases include areas such as Occupational Safety and Health, National Labor Relations, and Federal Aviation. Each ALJ is an independent impartial trier of fact who makes decisions after considering the documentary evidence, oral testimony, and applicable law. Depending upon the agency involved, ALJ decisions may be appealed to an agency appellate court or directly to federal district court.

In a sense, the ALJ level protects the next level of federal district courts from being overwhelmed by a flood of regulatory cases. For example, in 2010, there were 3.2 million Social Security claims filed. Of these, about 15-18% requested a de novo hearing–meaning a new hearing or trial, after exhausting all administrative remedies. Most Social Security ALJs handle and dispose of 500-700 cases a year, with each case having an average value of $250,000.

Because a federal ALJ is appointed rather than elected; is restricted in terms of political activities by the Hatch Act; and may only be removed for good cause, Administrative Law Judges serve long careers outside the public’s radar. In addition to the federal ALJs, almost every state has some form of ALJ program, although state ALJs, who may claims of employment or housing discrimination, claims related to child support enforcement, and claims related to other state benefits, generally lack the insulation from political influence and guarantee of judicial independence that federal ALJs have. But whether federal or state, administrative law judges hear the stories of people’s lives.

As a sitting ALJ, I don’t write from the viewpoint of my present job, but my experiences as a judge and former litigator, coupled with those of my friends, do provide inspiration for crimes and courtroom settings. I just try to make sure if my characters go to trial, I put the right judge and subject matter together in my fictitious wood-paneled courtroom.

As the title of her first mystery, Maze in Blue, suggests, Debra H. Goldstein is a University of Michigan graduate, although she headed south and got a law degree from Emory University. She’s a former labor litigator, and now sits as an Administrative Law Judge in Birmingham, Alabama. Visit Debra through her blog — Leslie will be a guest in late May — or her website.

Psychologist Carolyn Kaufman on the Insanity Defense

Today, psychologist Carolyn Kaufman, author of The Writer’s Guide to Psychology (Quill Driver Books, 2010), and I trade perspectives on the insanity defense. You can read my post on the legal issues of insanity on the Query  Tracker blog .

Psychological Disorders and the Insanity Defense

When people hear the word “insanity,” most assume they’re talking about a psychological term (or maybe even a psychological diagnosis). In fact, insanity is a legal term, which means that a courtroom is the only place that a person can be declared insane. However, psychologists and psychiatrists can help determine whether someone has a psychological condition that will let the defense argue that the defendant should be declared “not guilty by reason of insanity” (NGRI).

So what does it mean to be NGRI? “Currently,” writes Leslie Budewitz in Books, Crooks, and Counselors, “in federal cases, the defendant must prove that he has a ‘severe’ mental disease that made him ‘unable to appreciate the nature and quality or the wrongfulness of his acts.’” In other words, the individual must be so psychologically disturbed that she or he (we’ll use he for the sake of simplicity in this post) was not able to understand at the time he was committing the crime that what he was doing was wrong.

In psychological terms, that usually means the individual was psychotic. Psychosis means that someone has lost touch with reality the way most people experience it. The two most common symptoms of psychosis (though both do not need to be present for psychosis to be diagnosed) are hallucinations and delusions. Writers often use the terms “hallucination” and “delusion” interchangeably, but they are not synonymous.

Hallucinations are sensory experiences in the absence of sensory stimuli. In other words, the person is seeing, hearing, feeling, smelling, or tasting something that isn’t there. Someone who is hearing voices, for example, would be said to be hallucinating.

Delusions are problematic beliefs that are not based in reality and which cannot be shaken with logic. The belief that one’s thoughts are being stolen and recorded by, say, the FBI or aliens is delusional.

The disorder most often associated with psychosis is schizophrenia. (Note: Schizophrenia is not the same thing as dissociative identity disorder, sometimes called multiple personality disorder. People with schizophrenia only have one personality.) In addition to hallucinations and delusions, some people with schizophrenia experience disorganized thoughts, speech, and behavior. That doesn’t mean they’re messy people—it means their behavior is odd, even bizarre. Words and phrases may be jumbled together in a nonsensical fashion. Though the media is usually quick to look for schizophrenia in people responsible for mass shootings, Jared Lee Loughner, the man who opened fire in Tucson in January 2011, is one of the few who clearly does have schizophrenia.

Bipolar disorder, once called manic depression, can also cause hallucinations and delusions, usually in the manic phase. There is also a small handful of other psychotic disorders. These include delusional disorders, in which someone has delusions but no other symptoms of a disorder like schizophrenia or bipolar disorder.

If you decide to portray a psychotic disorder, be aware that although symptoms for disorders like schizophrenia and bipolar disorder can worsen at times due to, say, stress, they should not just appear and disappear when it is most convenient for the author. Psychotic disorders and bipolar disorder are severe, life-changing problems that generally require medication (antipsychotics for psychotic disorders and, in the case of bipolar disorder, mood stabilizers) as well as therapy to learn to manage the disorder.

One diagnosis that will not earn your character a NGRI determination is psychopathy, in which the individual knows exactly what he’s doing and that it’s wrong—he just doesn’t care. A psychopath is stone-cold sane. Because there is no entry for “psychopathy” in the current version of the psychological diagnostic manual (DSM-IV-TR), people who violate others’ rights and break laws with this lack of conscience are diagnosed with antisocial personality disorder (APD). Not because they withdraw from society or isolate themselves (they don’t), but because they are anti-society. They flagrantly violate others’ rights and cause problems for society.

Only the very worst cases of APD qualify as true psychopathy. Psychopaths are whimsical, reckless, callous, cold, and cruel. They are your serial killers. (Serial killers are rarely psychotic, because psychotic people are not able to be organized and deliberate enough to hide their crimes long term.) If they’re charismatic and intelligent, they might also become CEOs, politicians, or other people of power and influence. (For more on this topic, check out Paul Babiak and Robert Hare’s book Snakes in Suits: When Psychopaths Go to Work .)

True psychopaths are thought by experts like Robert Hare to be born the way they are. They are your proverbial “bad seeds.” (For more information on how the brains of psychopaths are different from those of other people, check out The Writer’s Guide to Psychology! ) If you want to see the difference between someone who’s psychotic and someone who’s psychopathic, compare John Nash in A Beautiful Mind (schizophrenia, though far from a perfect portrayal of it) to Hannibal Lecter in Silence of the Lambs (psychopathy).

I mentioned dissociative identity disorder (DID) earlier, and though there have been historical cases of people being declared NGBI due to DID, that is much more unlikely in a modern environment. Why? First, because people with DID are not psychotic. Add to that the fact that DID is one of the most—if not the most—controversial diagnosis in psychology. There is strong evidence that, at least in some cases, the disorder is “iatrogenic,” which means it has been created by the therapist in a suggestible individual. The famous case of Sybil, for example, was iatrogenic, created by a therapist interested in fame. (For more information, check out Debbie Nathan’s book Sybil Exposed .)

To summarize, only in a courtroom can it be decided whether someone is legally sane or insane—but a psychologist or psychiatrist may be asked whether a defendant is (and/or was at the time of the crime) psychotic to determine whether he should be declared NGRI.

Finally, as Leslie Budewitz mentions in Books, Crooks, and Counselors, NGRI is not—contrary to popular belief—a plea that is often used successfully in court: “Justice Department statistics say the defense is raised in only about 1 percent of cases, and succeeds in only 25 percent of those.” It is also not a Get Out of Jail Free card. In fact, on average, a person declared NGRI spends more time in a psychiatric facility than he might have spent in jail.

Carolyn Kaufman, PsyD, is the author of The Writer’s Guide to Psychology: How to Write Accurately About Psychological Disorders, Clinical Treatment and Human Behavior  (Quill Driver Books, 2010) which helps writers avoid common misconceptions and inaccuracies and “get the psych right” in their stories. She also blogs for Psychology Today and the QueryTracker Blog .

Thanks, Carolyn!