Category Archives: writing about legal issues

Miranda Magic: Strengthening Your Story — guest Lisa Preston

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Orchids coverGather round, children, as we welcome Lisa Preston to the blog. A veteran police officer and EMT, as well as a horse trainer and backcountry adventurer, she’s the author of the new novel ORCHIDS AND STONE. (Read more about Lisa, below.) Today, she’s sharing a cop’s perspective on Miranda warnings, and how you can use them to strengthen your story without breaking the law. 

Miranda Magic: Strengthening Your Story

I once read (part) of a novel by a best-selling author in which a character pleads guilty to murder then the rest of the plot develops over the succeeding criminal trial. Of course, this is not at all what would happen; there would not even be a trial. Only those who plead not guilty receive criminal trials.

Most legal goofs are not so egregious and will likely be missed by many readers, but the writer will lose credibility with readers who roll their eyes when a writer bends the legal system too far for the reader to ride along. As a retired cop, I am one of those readers who doesn’t tolerate fiction with significant goofs in legal procedure. As a writer, I was amused when an editor thought the police officer who had arrested my protagonist should have Mirandized her. This brings me to the two major misunderstandings I see writers struggle with on Miranda warnings.

[LAB: Just because the cops turn the proper noun Miranda into a verb by adding -ize does not mean you may do so in any other context. We shall tolerate this one grammatical misuse only!]

First, Miranda [LAB: Named for the U.S. Supreme Court’s 1964 decision in Miranda v. Arizona) applies to custodial interviews. The cliché scene of a cop snarling Miranda warnings the minute the suspect is handcuffed is not the way police Mirandize. To do so would create an adversarial approach, lessening the chances of the subject being cooperative. Moreover, there’s no reason to Mirandize if there’s no interview.

Whether or not an interview is custodial for the purposes of determining if Miranda warnings are required is not as straightforward as asking whether or not the person is under arrest. It’s possible to not be under arrest, yet be in custody. Here is the 3-pronged test to establish whether or not the interview was custodial:

∙ What did the officer believe (about whether or not the subject was free to leave at any time)? Was the interview subject in the back of a patrol car (from which he could not let himself out)? The officer knows that person is not really free to leave at any time; the interview is custodial and Miranda is required.

∙ What did the interviewee believe (about whether or not he was free to leave at any time)? Was the interviewee in a police station behind locked doors? If he was escorted deep within the building and doesn’t feel free to leave, Miranda is required.

∙ What would a reasonable person believe (about whether or not a person in that situation would feel free to leave at any time)? Was the interview subject first told by the police officer to sit down on the park bench? Maybe the officer is standing over the person now, asking questions. A reasonable person could find that custodial.

Second, there’s nothing magic about a police officer giving the Miranda warning; the key is that the interview subject must waive Miranda rights before being questioned. The 3-prong test for a clean waiver of the Miranda rights is a knowing, intelligent and voluntary waiving of the right to not talk and to not have an attorney present. If the officer read Miranda but the interview subject never waived his rights, then anything learned in the interview could be suppressed or not admissible in court because there was no waiver.

Of course, a writer can use good information to develop a story in any direction. Want the cop to be incompetent? Have him scream Miranda at the arrestee, scaring the subject right out of talking to a cop with an aggressive attitude. Want the cop to be dirty? Have him bait the guy into talking then turn on a recorder and catch what he says without benefit of a Miranda advisement and waiver. Want good procedure? Follow good procedure. Use reliable resources to clarify the legal rules that apply to your fiction. Leslie’s guide, Books, Crooks and Counselors, is an excellent resource, one I recommend to all writers. For details that touch on all senses in a given police scenario, talk to officers who have been in similar situations. We’re happy to share experiences with writers who want to strengthen their stories.

LisaPreston_01With one semester to go in high school, Lisa Preston moved to Alaska and almost immediately began mountain climbing. To improve her first aid knowledge, she took an Emergency Medical Technician course, which included ride-alongs on the Fire Department’s Advanced Life Support ambulances. She moved to Oregon for training and was soon back in Alaska, pulling 24-hour shifts as a paramedic.

After a number of years, she transferred to the Police Department. Her second career started with the position of street officer and she still claims it is the most demanding job in law enforcement. Faced with a choice between K-9 and detectives (she’d trained protection and tracking dogs), she became a detective, working in the Vice unit  and later in Crimes Against Children, with a special assignment as a Hostage Negotiator. She went back to the street as a sergeant, and eventually returned to investigations, supervising Internal Affairs.

She teaches three writing workshops (The Query Class; The Right Rewrite; Ambulances, Badges and Courtrooms). She’s an ultrarunner and rides solo for long distance on her AKhal Teke horses, exploring in the backcountry.

Her publishing credits include nonfiction on the care and training of animals Her thriller, ORCHIDS AND STONE, will be released in trade paperback, e-book and audiobook in April 2016. Connect with her on her website, http://www.lisapreston.com 

Anatomy of an evidence room

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When I practiced in Seattle, a small group of lawyers in my firm represented commercial fishermen and seafood companies. That’s what led us to involvement in a large criminal conspiracy case against a man known as “the Geoduck King.” (That’s gooey-duck, and it’s a big old ugly clam.)

I thought of that recently when I read this article on a police department evidence room in a Twin Cities suburb. It’s an eye-opening look at how physical evidence is handled and stored, how it can pile up, and how it’s managed.

But they don’t say anything about storing a freezer full of big old ugly clams.

You can easily create good complications for your stories, if you put yourself in the position of an evidence room manager or a police officer. Imagine an officer bringing in a piece of evidence during a rush; does it get properly cataloged? What happens to a criminal case if the right gun, or the right baggie of “green leafy vegetable matter,” can’t be located?

Space can be a real issue, and not just for freezers full of clams. Computers may be smaller than ever, but they still take space. Cars and trucks, front-end loaders, trailers, and other really big items will be stored in an impound lot, often outside and exposed to the elements. What if a storm causes additional damage or destroys an RV that was the scene of a crime?

Think, too, of what happens to evidence after a case is closed? Clerks of court will call occasionally to say they’ve received a file back from the state Supreme Court, and what would we like to do with the broken chain that struck a young man in the eye? He lost that claim because he couldn’t prove where his uncle had bought it, and sued three farm & ranch suppliers, including our client, each of whom was able to show they had not bought that length of chain from that manufacturer. Your fictional criminal defense lawyer or civil trial firm, like mine, might have displays of evidence: the dented timber company hard hat that sits on top of Fred the Skeleton, or a glass-front book shelve holding small odd items. No guns or bullets, though, and no green leafy material!

Character opportunities: guns and domestic abusers

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I spotted these two articles recently that struck me as useful resources for writers. Quite a few states restrict the ability to own guns of those convicted of domestic abuse, charged but not yet tried, or subject to a protective order. (I’ve written about protective orders in domestic abuse cases here and here.)

This article chronicles recent changes in state laws, as well as changes under discussion.

And here’s a Q&A on the topic.

And here’s a pair of directories to gun laws, one state by state and one by policy. (I’ve not yet used it, and can’t vouch for its accuracy; if a state law is key to your story, check the statutes.)

 

Character opportunities — booking photos

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Montana laws strongly favor public access to information, while also recognizing the personal right to privacy — both are expressly recognized in our 1972 Constitution, replacing the bare-bones model we enacted on statehood in 1889. Curiously, we did not have a recognized public policy on booking photos — aka mug shots — probably because our low population means some important issues simply never reach the courts.

Now a Montana District Court — our court of general jurisdiction, or primary trial court — has decided that booking photos are public records, under the category of “initial arrest information” specifically made public by our statutes. Courts and prosecutors in several counties, including the largest, had long taken this position, while others had treated them as confidential, leading to clashes with the media. Proponents of release point to the statutory language, and also the benefit: locating missing suspects, drawing connections that prove guilt or innocence, deterrence, and public safety. Opponents argue that release of photos suggests guilt, but media have long had access to arrest and booking records. Many small-town newspapers routinely publish those records, and jail rosters are often online.

Here’s the Missoulian’s summary of the issue.

The law may vary in your story state, but release of public info — from booking photos to jail rosters — can play a part in your stories. Think of the child who’s been told her father is working out of state, only to come across his name in a public arrest record — or to hear her friend’s parents discuss his arrest. What’s the impact on a character when a man with a similar name is publicly identified as a suspect in a horrible crime? How does seeing a suspect’s photo in the newspaper affect the victim of a crime, or lead a neighbor, a landlord, a teacher to recognize the man and decide how to respond? What emotions are unleashed in a woman who sees the photo of her long-lost love — the man who left her a voice mail message pleading for help in fighting a wrongful accusation?

Bias in the legal profession

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I recently took an online CLE — continuing legal ed seminar — on Eliminating Bias, presented by Maryland lawyer Steven Vinick. Vinick presented some recent statistics from the American Bar Association on the makeup of the bar that surprised me. No, they astonished me.

Gender, 2015:
Male – 65%
Women – 35%

Vinick cites articles noting that despite this figure, roughly 16-19% of partners are women, and that women in elite law firms earn on average $66,000 less a year than men.

Race, in 2010: 
White – 88%
Black – 5%
Hispanic – 4%
Asian-Pacific American – 3%
Native American – <1%

The seminar did not include stats on disabilities or sexual orientation.

What stuns me is that this is what the profession looks like after years of women and people of color attending law school in greater numbers. Visnick notes that a client who values diversity may have trouble finding a suitable law firm, and if the client is looking to hire a law firm for a civil rights matter, this can be particularly important.

I’m not saying a white lawyer can’t do a damned fine job for a black client in a civil rights claim, or that lawyers of color must do that kind of work; I’m talking about perceptions here. Certainly statistics alone do not establish that bias exists in a particular interaction. But if this is what our profession looks like, it makes it hard for clients to believe they’ll get representation free of bias, let alone bias-free results.

Vinick points out that the legal profession is less racially diverse than most other professions, and that the makeup of most law firms would look like intentional discrimination in a private company. (And publishing, alas, isn’t much better. Lee & Low’s new survey on diversity in publishing shows that the field is about 79% white, 78% female, and 88% straight.)

Other studies Vinick quoted report that 57% of women thought judges appear to give less weight to women lawyers’ arguments, while only 12% of men thought so. 63% of women but only 19% of men said demeaning jokes or remarks against women were made “often or sometimes” in court or chambers. No doubt some would say women are “too sensitive,” but the point is that people who are not subject to a particular type of bias are far less likely to see that bias.

The good news is that more and more CLE and in-house training addresses conscious and unconscious bias. Law firms are becoming increasingly aware that discrimination can violate the rules governing the profession. The ABA, state bars, and individual law firms are talking about the issues. The Washington State Bar journal, the NW Lawyer, is running a lengthy series of articles addressing elements of diversity and bias, and I suspect other state bars are as well.

Where there’s talk, there’s hope for change.

So if you’re writing about fictional lawyers, judges, and court staff, think about these issues. How do they affect the dynamics? The spoken and unspoken, the conscious and unconscious motivations, the perceptions of whether justice is truly attainable.

Character opportunities: breath tests for pot and a “check the box” ruling

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Last year, I took you along with me to a marijuana business law course I took, thinking that the increase in legal medicinal and recreational use of pot offers some good potential story complications. Here’s part 1 and part 2. 

But there are other legal issues as well. This NPR piece reports on efforts to develop a reliable breath test for THC, the intoxicating ingredient in marijuana. New scientific evidence always requires evidentiary testing before it will be admissible in court, so the effort could continue for years, even after scientists develop a reasonably reliable test. Your characters might wrangle over the test itself, over admissibility, over uses in employment, and other ways, as characters do.

Another development with potential ramifications for your fictional employers and employees: What’s sometimes called “the box,” where a job applicant indicates whether she’s ever been charged with or convicted of a crime. The Pennsylvania high court has now ruled unconstitutional a state law preventing convicted criminals from getting full-time jobs in nursing homes or long-term-care facilities, because a lifetime ban did not serve the statutory purpose of protecting the elderly. Here’s the NPR summary. The laws are applied in many situations; does one hold your character back?

Writing about cops? Changes in police training

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These articles on the changes in police training are several months old, but still very interesting, exploring the changes introduced in Washington State by the new director of the Criminal Justice Training Academy, former King County (Seattle and environs) Sheriff Sue Rahr. Part I focuses on Rahr and the academy; part II looks at the training from the recruits’ perspective. And in May, NPR interviewed Rahr and a New Jersey police chief on changing police attitudes on the use of force.

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

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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.)

Character opportunities — judges and senility

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Judges often play a part in mystery and crime fiction — and of course, in my day job. So naturally, this headline caught my attention: “9th Circuit addresses senility among federal judges head on.” (I read the report in the Missoulian, but it appears to have originally come from the Associated Press.)

Mental competence of state and federal judges is a critical issue, and with an aging population on the bench, one that’s getting more attention. This article describes the approach the 9th and 10th circuits are taking, and gives a few examples. Some states have mandatory retirement ages, unlike the federal system. Many states have judicial assistance programs, where judges can get help with emotional problems, addictions, and — if they recognize the problem — competence issues. Lawyers and lay people — often, a judge’s staff — can also report concerns to professionals who can then assess and intervene.

What opportunities for conflict and crisis can you give your characters — judges, lawyers, clerks, probation officers and law enforcement officers, litigants, families?

Oh, what fun it is to celebrate a new book!

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Thanks to all of you for making GUILTY AS CINNAMON another national bestseller! I’m considering that an early Christmas present—but that doesn’t let Mr. Right off the hook!

And I’m delighted to report that the large print edition will be available in July 2016.

Readers and bloggers continue to be very good to me. Jennifer at Moonlight Rendezvous calls it an “exciting mystery that has the perfect recipe of charm to entice cozy readers.” And Kings River Life gives a spot-on recap.

cabinMy favorite bad boy, Alex Howard, and I are Dru Ann’s guests at Dru’s Book Musings on Friday, December 25, giving the chef’s-eye view of GUILTY AS CINNAMON—and thanks to my publisher, there will be a giveaway!

Stacy the BookBitch is including a signed copy of GUILTY AS CINNAMON in her December giveaway—along with the latest by Janet Evanovitch (TRICKY TWENTY-TWO), Lawrence Block, and the authors of the French winemaker’s mysteries. One lucky winner gets all four books!

My thanks again to all of you for sharing the CINNAMON spirit!

(Photo: Our new cabin in the woods!)