Character opportunities — booking photos

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?

The Saturday Writing Quote — fear and doubt

“We have been socialized to respect fear more than our own needs for language and definition, and while we wait in silence for the final luxury of fearlessness, the weight of that silence will choke us….

The transformation of silence into language and action is an act of self-revelation and that always seems fraught with danger. We fear the very visibility without which we also cannot truly live … and that visibility which makes us most vulnerable is that which is also the source of our greatest strength.”

Audre Lorde, American writer and activist, 1934-92

Bias in the legal profession

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.

The Saturday Writing Quote — fear and doubt

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“I think it’s a good thing to doubt yourself every so often. That means you aren’t settling for mediocre. You’ll hit a stretch of writing that will better than you could have imagined, then the doubts will disappear, and you’ll be back on track. It might happen again, but those times make us better writers.”

— Polly Iyer, American novelist