Law & Fiction — Questioning juveniles

In a recent discussion in a writers’ forum on how and when police could question a person, a writer made the excellent point that what we’d been saying is how the law SHOULD work, but that it often DOESN’T work that way, especially in communities of color or of lower socioeconomic status. Further, she stressed, we as writers should not “imply an equity that does not exist.”

So when I saw this blog post from the Washington State Bar Assn on a new ordinance in King County (which includes Seattle), I thought the writers among you would be interested — readers, too, but for different reasons. The ordinance requires police to connect any youth under 18 with a public defender before questioning or searching them, except in emergencies where police “reasonably believe the information sought is necessary to protect someone’s life from an imminent threat and the questioning is limited to that purpose.” The post, by a public defender, summarizes the problem, including statistics, and the tragic shooting that led to the ordinance. Kids’ brains aren’t fully developed yet. They often lack the judgment or experience needed to handle difficult situations. They don’t always react the way adults think they should – and it’s up to us as adults and as a society to remember that.

This may already be the law in your story state – although I am a member of both the WA and MT bars, I live and practice in MT, where law enforcement has long been prohibited from interrogating anyone 16 or younger without an attorney, parent, or guardian present. Even so, we need to remember as both citizens and writers that it doesn’t always work that way.

Order in the Court — online RWA class

Writer friends, I’ll be teaching an online class on using the law in your fiction beginning October 1, through the Romance Writers of America “Kiss of Death” chapter. The class is called “Order in the Court & in Your Work.”
We’ll be covering the following:
1. Introduction
2. Overview of the judicial system
3. State prosecutorial systems
4. Crimes
5. Miranda warnings
6. Probable cause
7. Evidence
8. Trial process
9. Sentencing
10. Civil litigation
11. Appeals process
12. Legal ethics and discipline
13: The Law on TV Today: Three Guest Authors Rant and Rave

The class will include some assignments and regular Q&A opportunities. Register for Order in the court & in your work here. RWA membership is required.

See you there!

Stupid Criminal Tricks — texting edition

Cyberbullying Doesn’t Pay – Escapee Returned to Jail After Taunting Detective Via Text

I haven’t posted a Stupid Criminal Trick in a while but this one is worth the wait. Short version: If you escape from jail, don’t text the detective handling your case with a homophobic slur and an anatomical suggestion. A search warrant for your cell phone data is a sure bet, and it’s an equally sure bet that said detective will use said data to track you down and haul you back to the hoosegow. (How did the man escape in the first place? Turns out that while being processed after his arrest, he somehow managed to join a line of inmates being processed for release. Oops.)

Law & Ardor — Common Mistakes Writers Make About the Law

WPA 2016 2Earlier today, I was interviewed by Wendy Kendall and Julie Cooper for their terrific podcast series, Kendall and Cooper Talk Mysteries. Here’s the link. We talked about Books, Crooks & Counselors, and some of the common mistakes writers make about the law. And next month, I’ll be the guest speaker for the Orange County (CA) chapter of Romance Writers of America, talking about those mistakes. So I thought it a good time to reprint my article from The Writer on that subject — although I’ll confess, the list has grown a bit in recent years!

LAW & ARDOR: Writing about legal themes? An attorney identifies 10 common mistakes to avoid in your fiction (Originally published in The Writer, September 2013)

If you’re writing fiction, chances are a legal thread runs through your story. On screen or on the page, legal issues are often central to plots and backstory.

In mysteries and thrillers, past crimes may surface with present ramifications. Law enforcement officers and P.I.s need to know what’s legal and what isn’t. Amateur sleuths—the chef, gardener, or librarian—may start digging because they fear police won’t investigate or will nab the wrong suspect.

The law figures in mainstream and literary novels, too. And legal plots don’t require a crime. With a good storyteller, civil law can be gripping. Think of the possibilities in adoption (Jacquelyn Mitchard’s A Theory of Relativity; Ann Patchett’s Run), inheritance (Dickens’ Bleak House), even insurance (Double Indemnity, Billy Wilder’s movie based on James M. Cain’s novella).

But the law can be confusing, too. It changes constantly, and varies from state to state. Information and misinformation abound. Plus most of us, thank goodness, live happy lives without facing serious legal trouble. What follows is one lawyer-novelist’s list of common mistakes—and tips on avoiding them.

1. Using the wrong terms to identify prosecutors and courts.
On  TV’s Law & Order—and I love the show—the prosecutor is the D.A. In other stories, she may be the county attorney or prosecutor, the state’s attorney, even the people’s attorney. A  handle like commonwealth’s attorney might be shortened to “the prosecutor.” Does she try cases in District Court, Circuit Court, or Superior Court? If the terminology baffles you, call the court or prosecutor’s office, the state bar, or a law professor. You may even find a source to answer future questions.

2. Assuming law enforcement officers need a warrant to make an arrest.
Police don’t need a warrant to make an arrest in a public place, or in “exigent circumstances,” such as when an officer witnesses a crime or pursues a suspect. But police still need probable cause—that is, a reasonable belief, based on facts, that a particular person is responsible for a particular crime. “Mere suspicion” is not enough.

3. Confusing direct and circumstantial evidence.
Evidence is anything offered at trial to prove a fact necessary to the elements of the case—testimony, documents, or physical evidence like a gun or DNA test results. Direct evidence is evidence of a fact. Circumstantial evidence is evidence of a fact that leads to an inference or presumption.

An illustration: You tell your kids not to eat the brownies until after dinner. You see your son snatch one—direct evidence of disobedience. You don’t see your daughter touch the plate, but you spot chocolate smears around her mouth and crumbs on her shirt—circumstantial evidence.

In both civil and criminal law, circumstantial evidence may be enough to make the case. If the other side objects, the judge must rule on whether to allow (admit) it or not. The standard is relevance: Does it make facts that matter to the case more or less probable?

4. Giving every suspect a Miranda warning.
A warning is required only before custodial interrogation. In other words, only persons in custody need to be warned, and even then, only before questioning. Voluntary statements by persons not in custody or not made in response to questioning are admissible. A suspect who’s been warned may waive his rights and agree to talk. Of course, mistakes are fodder for defense lawyers—and writers.

5. Failing to distinguish between state and federal crimes.
A crime doesn’t get to be federal just because it’s important. Federal crimes are violations of federal statutes. They include many (but not all) drug and firearms offenses, kidnaping across state lines, and offenses related to securities or banking, immigration, war, terrorism, or interstate communications, or occurring on federal property. Regulatory offenses, such as pollution violations, may be federal crimes. If a crime violates state law, the state prosecutes. Some conduct may violate both state and federal laws, triggering a tug-of-war over jurisdiction. State court systems handle the majority of civil and criminal litigation—about 95%.

If your fictional crime is set in Indian Country, do your research. While the FBI investigates crimes on many reservations, as in Tony Hillerman’s Leaphorn and Chee novels, state authorities exercise full or partial jurisdiction on others.

6. Assuming a felon can’t vote or own a gun.
Restoration of civil rights—including voting and gun ownership—after a felony conviction is complex. The Sentencing Project, a national organization promoting sentencing reform, estimates that full or partial state bans—many applicable even after a sentence has been fully served—deny the vote to 5.8 million people and have a disparate racial impact.

While federal felons are barred from gun ownership for life, state law varies widely. Some states prevent or limit gun ownership by persons convicted of violent felonies, but allow it after the sentence is served, including probation. Waiting periods may apply. Court process may be required. Some states permit ownership of hunting rifles but bar handguns.

Debate rages over the constitutional implications of voting and gun restrictions and their effect on a person’s ability to re-enter society. Does your character live in fear of an ex-con ex-husband with a gun—or worry that she can’t buy a gun to protect herself because of her own record? Is your fictional legislator’s re-election in dispute because a faulty list prevents hundreds of ex-felons from voting?

Change will continue, so check your story state’s laws.

7. Referring to guilt in a civil suit for damages.
A criminal defendant will be found guilty or not guilty (not “innocent”). A civil defendant is either liable for the plaintiff’s damages or not—the concept of guilt does not apply.

Unlike criminal guilt, civil liability is not all or nothing. In a personal injury claim, the jury may decide that the plaintiff—the party bringing suit—contributed to her injuries by her own negligence. If her negligence reaches a certain level—typically more than 50%—she may be prevented from recovering damages. Multiple defendants may share liability.

Picture a slip-and-fall: A shop owner fails to shovel her sidewalk and allows ice to form. A woman falls and breaks her arm—but she walked there daily, knew the danger, and was on her phone. A neighboring shop owner had promised to shovel, but forgot. Who’s liable, meaning who pays? The jury decides.

8. Sentencing a defendant minutes after a criminal conviction.
Sentencing is a separate proceeding, usually held after a pre-sentence investigation by a probation officer or other investigator (terminology varies). Prosecutors and defense counsel need time to review the report and make recommendations. A few weeks is typical. Sooner is possible—Casey Anthony was sentenced a few days after the verdict, but the charges she was convicted of were relatively minor and circumstances may have triggered an expedited proceeding.

Sentence may be imposed right away if a defendant enters into a plea agreement—but only after lengthy negotiations that include evaluation of all the factors that go into a pre-sentence investigation.

If you need sentence imposed quickly to get your character to prison, build in facts that let you do so. Just don’t let your fictional judge hear the verdict and impose sentence without taking a breath.

9. Allowing lawyers—or their clients—to argue with the judge, especially after she’s ruled.
Don’t do it—not if you care about your characters or their case. But if you want to irritate your fictional judge, go ahead. Your chances of success are excellent.

And don’t let your characters interrupt in court, unless you want them hauled to the slammer for contempt.

10. Introducing new evidence on appeal.
Appeals are decided strictly on the record below—meaning the evidence, including testimony, and legal arguments. Parties to an appeal may not present new witnesses or argue legal issues not previously raised. As part of its decision, though, an appellate court might order the trial court to reopen a case to consider evidence or arguments previously excluded.

In a criminal case, new evidence may surface weeks, months, even years after conviction. Other procedures exist to ask a judge to reopen a case after the appeals process has ended.

Obviously, mistakes happen in real life, which is why lawyers file motions to suppress evidence or dismiss charges (in criminal cases), motions to exclude evidence or dismiss claims (the civil terminology), and appeals. But mistakes also add to the drama and create great opportunities for tension and conflict.

Is it ever okay to make a mistake on purpose, to fool the reader? Not in my book. Exaggerate a bit for drama, sure, but deliberately building a story on a faulty premise breaks faith with the reader. As prosecutor turned novelist Marcia Clark said in a panel discussion on forensics in fiction, “The more we tell the truth, the more dramatic it is.” We don’t need to lie about the facts to tell a good story—we need to find the story they tell.

Writers who take time to check legal terms and principles will discover terrific opportunities to twist, deepen, complicate, or simplify their stories. Getting the details right can make all the difference.

 Tracking Down Those Pesky Details

The National Center for State Courts website includes directories of all state court systems with court structure charts, and of public defender systems.

The Sentencing Project map tracks state incarceration, probation, parole, and disenfranchisement rates.

The NRA maintains a directory of state gun laws.

The American Bar Association charts summarize state statutes on domestic violence, stalking, protective orders, and related issues.

– For state-by-state specifics on recording conversations, see this guide from The Reporters Committee for Freedom of the Press.

The FBI maintains a directory of state and tribal sex offender registration laws.

Leslie Budewitz, a practicing lawyer, won the 2011 Agatha Award for Best Nonfiction for Books, Crooks and Counselors: How to Write Accurately About Criminal Law and Courtroom Procedure. Her  mystery Death al Dente is set in Northwest Montana, where she lives.

(Photo: me with driving instructor Colleen Belongea at the 2016 Writers’ Police Academy)

Criminal Law — a few topics for writers

The November issue of the NW Lawyer, the journal of the Washington State Bar Association, focuses on criminal law, and as I read it, I thought several of the articles might be useful for writers, especially mystery and crime writers. Topics that caught my eye:

Police Dogs: Best Practices for Law Enforcement

In the Footsteps of Clarence Darrow: Fiction and Reality for Modern Criminal Defense Lawyers

What if Your Client is Actually Guilty? A Day in the Life of a Criminal Defense Attorney

Federal Prosecution Trends in Washington

Weighing the Evidence at Trial: A New Approach to Eyewitness Identification

There’s more, but these were the topics I thought might prompt story ideas or give you a better idea of the realities of criminal prosecution and defense.

Admissibility of past convictions #lawandfiction

I spotted this blog post on the NW Sidebar, a publication of the Washington State Bar, titled Witness Backgrounds: What’s Admissible in Washington vs. Oregon, and thought it raises some interesting possibilities for fiction writers. (I’ll wait while you read it.)

In short, every state sets its own standards for what criminal history can be brought out when a witness testifies in court. But these are good examples of two general approaches — one more flexible, one more stringent, though in each state, statutory limits are the starting point.

How can you use this in your story? Is a witness afraid to report a crime, or to speak honestly to police, or to testify in court because of her history? How will your fictional prosecutor deal with an eye witness who has a lengthy criminal history, even though it may have nothing to do with what the witness saw? Even bad guys can innocently, by coincidence or bad luck, witness other bad guys in the act. How will your fictional defense lawyer deal with the same situation? What emotions does the fear of testifying trigger in your witness? She and her new husband were beaten and robbed; if they testify against the thug, will the ten-year-old arrest for forgery that she’s never told him about be used against her in court? What will she do to prevent that—lie? Insist he testify? Develop laryngitis or an excuse to be out of state visiting her supposedly ill sister? Will a jury really hold a minor criminal history against a witness or victim in evaluating credibility?

Note that we are talking about witnesses here, not defendants. We’ll talk about the admissibility of a defendant’s criminal history another time.

Law and fiction — blogs with a real-life view of lawyering

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Writing a character who is a lawyer, but you’re not one — or closely related to one? A recent post on favorite blogs for lawyers on the Washington State Bar Association blog mentioned these, so I took a quick look. Good inside info.

Corporette: subtitled Fashion, Lifestyle, and Career Advice for Over-Achieving Chicks. If your image of women lawyers is pumps and charcoal gray suits, take a look. Things have changed, thank goodness!

Attorney at Work: No pictures of shoes or ruched-sleeve jackets (love ’em!) here. Lots of practical advice for the working lawyer, including ideas for business development, better meeting strategy, and being a good employer. I like this for writers because it reminds us that lawyers are business people, too — and like all business people, some handle it better than others. The pieces here will give you a better idea of a lawyer’s daily life, and may suggest some conflicts, small and large, that you haven’t thought of.

More than 50% of lawyers work on their own, or with only one or two other lawyers. Solo Practice University gives advice for the solo and small-firm lawyer. Like Attorney at Work, quite a few posts apply concepts from other fields to lawyering, which I like very much.

Remember that the more you understand about your character’s real life and daily struggles, the more conflict you can add to your stories and the more fully you can develop your characters — and understanding what they want and will do to get it is what leads to plot. Blogs are a great way to catch a glimpse of daily concerns and struggles, the very stuff that help us build intiguing characters on the page.

Wrapping up the year with Justice Breyer, a police firing, and forensic hair analysis

I’m wrapping up the year with links to a broadcast I enjoyed, a report of a police officer’s resignation in lieu of being fired, and a story that could make a great legal thriller.

I’ve long admired Supreme Court justice Stephen Breyer. This NPR podcast includes a frank and fun interview, in which the justice describes the court’s decision-making process, offers his comments on the new musical on Alexander Hamilton, and opines on the art of compromise.

The Seattle Stranger reports on the resignation of an officer who faced termination for violating “several department policies, including policies on honesty and professionalism, a requirement that police record their work using their in-car cameras, and the prohibition on using their positions for personal gain.” The officer had responded to a complaint from a woman who said patrol officers were sleeping in their cards instead of patroling, and repeatedly texted her, inviting her out. Interesting note: as in most jurisdictions, prosecutors are notified when an officer is found to be dishonest, because that finding can be used against the officer when testifying in court. But, it turns out, there’s no agency charged with looking through police records or past testimony for other evidence of dishonesty. How can you use that to make life harder for your fictional characters—officers, lawyers, victims, or witnesses?

The FBI recently audited the use of forensic hair analysis, concluding that much of it — by both state and federal analysts — was flawed. As reported in the Missoulian, several states are now conducting a review of cases in which hair analysis contributed to convictions. Flawed forensic evidence is a fascinating — and terrifying — problem, making it great fodder for crime writers. Read this article for a peek at how reviews are conducted, what factors go in to the decision to reopen a case, and some of the impact of flawed forensics on the accused. (This related article discusses two recent Montana cases involving hair analysis.)

Law & Fiction — a few recent discoveries

The “law” half of this blog has been fairly quiet recently. My apologies; I’m not as good at splitting myself in two (or more) personalities as I ought to be! I’ve come across a couple of articles recently that I thought worth sharing, even without a full blog post on the topics.

What happens when a person dies alone, without close friends or relatives, and not under a doctor’s care? This NY Times story, The Lonely Death of George Bell, describes the detailed process undertaken by the NYC Public Administrator and its agents and investigators. Other cities and counties follow a similar process, though not always so thorough.

I’ve written before about houses where crimes occurred, and the obligations of a seller or real estate broker to disclose murders on the premises — “When Crime Taints a House,” and “Ghostly Tenants and the Duty to Disclose.”  Now, there’s an app for that. (Hat tip to Seattle Mystery Bookshop.) “Died In House” tracks confirmed deaths by residential address, using obits, news accounts, and other searches. Many buyers want to know, and not just because they’re afraid of ghosts or because stigma can lower the price or make resale tricky. State laws on disclosure vary, and enforcement is difficult, so where there’s a gap, there’s an app.

I’ve also written about girls in the justice system. The Washington State Bar blog presents an in-the-courts-and-trenches view about girl-focused reform.

What it’s like to be a kid in jail or homeless

sparrows nestToday, I’m linking to a handful of articles that look at young people in the justice system. Their stories should matter to us as writers and readers, but mostly as humans—beyond a list of issues and a chart of statistics, each of these kids matters. And when they are lost, we as a society, as a community, lose, too.

The NW Sidebar, the Washington State Bar blog, reports on homelessness, school suspensions, and criminalization among LGBT kids. Anthony Gipe writes: “Nationwide, there are estimated to be in excess of 350,000 gay and transgender youth who are arrested and/or detained each year. While these youth account for only 5–6 percent of youth overall, they account for over 15 percent of youth in the juvenile justice system. It is also a startling statistic that of the LGBT youth in juvenile justice, more than 60 percent of those youth are also black or Latino.”

This article in Slate highlights the work of Richard Ross, a writer and photographer who’s been chronicling girls in the juvenile justice system. Ross says “Girls are the fastest-growing population in the juvenile justice system, accounting for hundreds of thousands of arrests and charges—often for minor offenses, like running away from home or breaking curfew—every year.”

In my own valley in NW Montana, the Bigfork Eagle reports that more than 300 children have been identified as homeless, including teens who live on their own—many not by choice, and many not part of the child protection system or foster care. Examples: a 14 year old girl living in the woods, taking shelter in a portable toilet or a Dumpster at night; a teenage boy who searches for unlocked cars to find a warm-ish place to sleep. School is their safe place. Some are still in school, but too old for the foster care system. A former church building was donated as a shelter for kids not in the system; a consortium of local churches raises funds for the project. In an April “awareness” campaign called “Somebodies,” mannequins dressed as homeless teens were placed on benches downtown. I watched the confusion as people tried to figure out what was going on; even with educational info posted nearby, it was too hard to digest, to understand that this is really happening.

A couple of other articles that caught my eye, from Crosscut, an online news source in Seattle: Kids and the American dream denied: A Conversation with Robert Putnam, and Trai Williams’ dream house for youth of color — one activist’s goal, grown from her own experience.

In mystery and crime fiction, all variety of characters touch on these issues: teachers, law enforcement, judges and court officers, prosecutors and defenders, social workers. Is your character a parent worried about her kid—or about her child’s best friend, who’s been kicked out of her house for dressing like the boy she feels she is, and not the girl her parents think she is? Each of these articles includes links to studies, books, and other resources that writers can use to dig a little further.

I’m big on showing emotion on the page, using emotion to drive the plot. What you just felt, reading these stories? Find where it resonates in your body—how it grips your jaw, makes your heart heavy, causes a damp eye or a tight throat. Give those feelings to your characters, and show us how they respond. Your stories will be stronger, your people a little more real. And all our eyes and hearts a little more open.