"G" is for Guilty?

In titling this post "G" is for Guilty? I inserted the question mark to indicate there can be an ambiguity about "guilty" in criminal law that is rarely discussed in crime fiction.

All readers of crime fiction and, hopefully, the general public know that in jurisdictions following British legal principles such as the United Kingdom, Canada, United States, Australia and New Zealand a person cannot be found guilty of a crime unless the prosecution has proven to the court that the accused is guilty beyond reasonable doubt. It is an intentionally high standard.

Every accused, a person charged with a criminal offence, starts the legal process presumed to be innocent. Rumpole of the Bailey may have expressed it best in crime fiction by his oft repeated expression, usually after glasses of plonk at Pommeroy's, that the principle of the presumption of innocence is the golden thread at the heart of British justice.

The ambiguity of the question mark in the title to this post starts with the challenge faced by every defence counsel when there are strong facts presented in disclosure by the prosecutor that would show the accused is guilty of a crime but the accused advises the disclosure is inaccurate but can only provide weaker facts.

For Rumpole the situation is simple. He lives by the principle "never plead guilty".

Defence counsel will set out the odds are against being found not guilty at trial are grim in such circumstances but will not advise the entry of a guilty plea unless the accused is prepared to admit the facts necessary for a finding of guilty.

Adding to the mix may be a plea bargain offered by the prosecution that a guilty plea early in the process or to a lesser charge would mean a significantly lower sentence.

In The Guilty Plea author, Robert Rotenberg, a practising criminal lawyer in Toronto deals such a difficutl situation. As set out in my review:

    The evidence is so formidable that, for the first time in my crime 
    fiction reading, DiPaulo explores a guilty plea with his client. A
    plea to manslaughter and a few years in jail is an alternative to be
    considered when a 1^st degree murder conviction means 25 years 
    in jail. DiPaulo treads a delicate ethical path in negotiations on a
    guilty plea when Samantha has not admitted killing her husband.
    To plead guilty requires an admission of guilt. I have had
    numerous clients agonizing as Samantha did over whether to
    plead guilty when they did not admit doing wrong.

You will often see judges in real life court rejecting pleas when an unrepresented accused tries to enter a plea of guilty while saying I am only pleading guilty to get it over with today.

Adding to the mix can be legal interpretations of the facts. Did the accused in receiving government benefits that it was determined for which the accused was not eligible commit civil fraud or criminal fraud or just make a mistake? The accused's actions were wrong but were they criminally wrong.

While prosecutors will disagree defence counsel often maintain accused are over charged in the number and seriousness of offences for a given set of facts. The accused is guilty of something but is it the charge or charges laid. A skilled defence counsel can ensure through negotiation with the prosecutor that a guilty plea to the appropriate charge with a reasonable sentence takes place.

Michael Connelly's lawyer, Mickey Haller, is one of the few fictional lawyers to regularly make deals for clients.

Dean Abernathy in Felony Murder by Joseph T. Klempner (1995) is another front line defence counsel who deals with the challenges of guilty pleas.

To add even more issues to the mix in Canada the police and Crown Prosecutor can for minor offences, if the accused is prepared to admit they are wrong though they do not plead guilty, refer the charge to alternative measures. Upon completion of such measures which may include mediation and an apology there is no finding or admission of guilt.

In America there is also the nolo contendere or no contest plea where an accused does not admit guilty directly but will receive a punishment for the charge for which the plea is entered.

I will not get into a discussion of people considering guilty pleas because they cannot afford trials.

Where crime fiction focuses on the clarity of guilty and not guilty in trials the real life world of criminal defence deals with a much subtler set of issues concerning guilty. I hope more writers of crime fiction take up the challenge of writing about negotiations over guilty pleas. I think they are just as fascinating as trials.

This post will be my entry for "G" in the Alphabet in Crime Fiction meme being hosted by Kerrie Smith at her blog, Mysteries in Paradise. Please drop over and see the other entries. Each week has interesting posts on the letter of the week.

Reflections on Female Fictional Lawyers

Being on a cruise ship has certainly slowed blogging. I can get on the internet usually when I want but the motivation level to blog is low.

My last post discussed Female Fictional Lawyers through a pair of academic articles and a list from my reading. In the law.arts.culture blog from the Osgoode Hall Law School, Kate Sutherland set out that lists from the American Bar Association and the Guardian of top fictional lawyers were male dominated. 

Looking at the ABA list it was mainly drawn from from T.V. series and movies. In my last post and this post I am focusing on lawyers from written crime fiction.

Sutherland continued that the pool of female fictional lawyers is smaller. The number of female fictional lawyers in crime fiction may have been lower, even 5 years ago, but I question whether there are fewer in current fiction.

I believe what has skewed the issue is that the trio of most prominent American legal fiction authors - Connelly, Grisham and Turow - all feature males as their primary characters. The authors draw disproportionate attention because of their success.

Not all of their lawyers are male. Connelly has Mickey Haller's ex-wife, Maggie "McFierce" McPherson as one of his lawyers and Grisham has the occasional female lawyer such as Reggie Love in The Client.

If any of them was to make a female lawyer the primary character in a series it is likely that fictional female lawyer would instantly gain public fame.

It seems unlikely to happen because authors have been creating fictional lawyers of their own sex. Grisham is an exception with Reggie Love. Canadian author, Robert Rotenberg, has also created a female lawyer in defence counsel, Nancy Parrish.

The seven authors listed in the William & Mary article - Gini Hartzmark, Lia Matera, Barbara Parker, Carolyn Wheat, Lisa Scottoline, Linda Fairstein and Christina McGuire - are all women who created female lawyers.

In the law.arts.culture blog at Osgoode Law School are mentioned Alafair Burke, Yrsa Sigurðardóttir, Margaret Atwood, Michele Martinez, Ruthann Robson, Cynthia Ozick and Sarah Caudwell. Once again all are women whose characters are female.

In my personal posts under Legal Mysteries I have books by 20 different authors. Beyond Grisham and Rotenberg there are four authors who have made lawyers of the opposite sex their primary characters. They are Rosemary Aubert, Robert Dugoni, Harper Lee and Paul Levine.

I do not think there is a special reason for the infrequency of opposite sex lawyers. The most successful legal crime fiction writer of all time, Harper Lee, made Atticus Finch the best known of all fictional lawyers.

As contemporary crime fiction is often a reflection of the society of the time I expect there to be a majority of female fictional lawyers in the future. In Canadian law schools female students now make up over 50% of the classes. When I started in 1972 my class was the first class in which 1/3 of the students were female.

“F” is for Female Fictional Lawyers

For "F" in the Alphabet in Crime Fiction meme being hosted by Kerrie Smith at her blog, Mysteries in Paradise, I have chosen the topic of Female Fictional Lawyers.

After deciding on the topic I found a couple of academic articles.

The first was Legal Fictions and the Moral Imagination: Female Fictional Lawyers Encounter Professional Responsibility by Kathryn A. Lee and Elizabeth Morgan, , 10 Wm. & Mary J. Women & L. 569 (2004). It can be found online at  http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1153&context=wmjowl

The authors explain the article:

     This article examines eleven books by seven authors, depicting
     seven fictional lawyers. Authors Gini Hartzmark, Lia Matera,

     Barbara Parker and Carolyn Wheat have created female attorneys

     who appear in several books, allowing for more character

     development than occurs in most mystery novels.'

     All three authors are law school graduates, and two have        
     practiced, Parker as a prosecutor with a state attorney's 
     office and Wheat as a Legal Aid attorney in Brooklyn. Lisa
     Scottoline, a University of Pennsylvania law school graduate and
     former Philadelphia lawyer, has also written several legal thrillers.
     Two current prosecutors of sex crimes are also authors: Linda
     Fairstein and Christina McGuire.

While some parts of the article are dense academic language most of it is very accessible and interesting in its examination of how fictional women deal with legal ethical issues.

The second article was in law.arts.culture, a blog at the Osgoode Hall Law School in Toronto, where there was a post on Women Lawyers in Literature. It can be found at http://lawartscult.osgoode.yorku.ca/2012/09/women-lawyers-in-literature-in-anticipation-of-the-first-meeting-of-the-law-feminism-and-short-fiction-reading-group/#comments.  
In the post the author, Kate Sutherland, speaks about a dearth of women lawyers in literature. Discussing crime fiction she mentions:
 
    The first examples that occurred to me also come from this genre:
    Alafair Burke’s series featuring Portland Deputy DA Samantha
    Kincaid, Linda Fairstein’s series featuring Manhattan sex crimes
    prosecutor Alexandra Cooper, and Yrsa Sigurðardóttir’s series
    featuring Reykjavik lawyer Thóra Gudmundsdóttir.

The post goes on to discuss a trio of stories written by women involving female lawyers - Weight by Margaret Atwood, The Mother by Michele Martinez; and, His Sister by Ruthann Robson. (I have not read any of them.)

At the end of the article she mentions the additional female lawyers she has identfied:

     In addition to those mentioned above there is Ruth Puttermesser
     from Cynthia Ozick’s The Puttermesser Papers; Judge Josie Jo
     Ford from children’s classic The Westing Game; an array of
     compelling women law students, lawyers, and judges in Lowell
     B. Komie’s short stories; criminal lawyer Cass Jameson from
     Carolyn Wheat’s mystery series; the lawyers of all-female firm
     Rosato & Associates featured in Lisa Scottoline’s series of legal
     thrillers; and, barristers Selena Jardine and Julia Larwood from
     Sarah Caudwell’s series of legal whodunnits. Who else?

I was alittle surprised she had not identified more female lawyers in crime fiction. I have added a comment to the blog linking this post and advising there are a significant number of female lawyers in crime fiction which can be added to her list.

I have read the books involving the following female fictional lawyers who are not listed above:

1.) Defence counsel, Nancy Parrish, in Old City Hall and The Guilty Plea and Stray Bullets by Robert Rotenberg;
2.) Mickey Haller's ex-wife, Maggie "McFierce" McPherson is a prosecutor in The Lincoln Lawyer and The Brass Verdict and The Reversal  and The Fifth Witness (California) by Michael Connelly;

3.) Barclay Reid is the managing partner of a large Seattle law firm and the accused in Murder One (Seattle) by Robert Dugoni

 4.) Victoria Lord is a skilled trial attorney in Solomon v. Lord and The Deep Blue Goodbye and Kill All the Lawyers by Paul Levine

5.) Lily Belle Cleary is a quick thinking witty Florida lawyer in Bone Valley; and,

6.) Rebecka Martinsson is a Stockholm tax attorney in Sunstorm by Asa Larsson

On Tuesday I will add some reflections and observations on female fictional lawyers.

Cruising with a Library

My wife, Sharon, our younger son, Michael and myself are crusing from Lima to New York City on the Oceania Cruise Line ship, Marina. One of the reasons I like this ship is the library.

On the 14th deck is a traditional library with a couple of thousand hardcover books. Most are fiction with a healthy selection of crime fiction.

The library has open access to windows looking out over the ocean. Inside the library are big comfortable leather chairs. Around the corner is a free coffee bar which will make up a reader's favourite speciality coffees. (They are included in your ticket.) Cookies are always available to supplement the coffee.

It is hard for me to think of a more inviting place for a book lover. It is a rare time of the day or evening when several people are not in the library.

All of the books are available to be borrowed. The ship requests that each passenger borrow a couple of books at a time.

I went through the crime fiction books. Not surprisingly most are from ongoing series with well known authors. I took back to the state room a pair of books.

I have read some of the books in Stella Rimington's series featuring English spy, Liz Carlyle. The author, the former head of MI-5 is a good writer. I picked up Present Danger from the shelves.

The other book is The Mapping of Love and Death by Jacqueline Winspear in her ongoing Maisie Dobbs series set in England in the 1930's.

Michael is currently reading World Without End by Ken Follett. His second saga from medieval England focused around a cathedral.

When he is finished the book he has In the Garden of Beasts by Erik Larson waiting for him. It is the story of an American family in Hitler's Berlin during the 1930's.

We are happy cruisers. 

"E" is for Pierced by Thomas Enger

Pierced by Thomas Enger translated by Charlotte Barslund – Henning Juul is back at work with 123news.no having been badly burned in the fire that killed his son, Jonas. Every day is a struggle with memory.

Tore Pulli is a successful real estate speculator in Oslo but is best known for his earlier career as an enforcer, a debt collector, who used the Pulli Punch, a fast elbow move to convince debtors to pay up. He has boasted he collected over 75 million kroner (about $13 million).

Another enforcer is disabled by a Pulli Punch and then murdered. Pulli asserts he has been set up but the courts convict him. It was interesting to see how a signature move could be used as evidence.

Pulli uses one of his precious weekly phone calls to reach out to Juul. Pulli tantalizes the reporter with the proposition that if the reporter works to clear his name he will provide information to Juul on the fire.

There are shadowy figures who do not want Pulli revealing the past. With prisoners allowed to meet the press prior to an appeal Juul visits Pulli in prison. While Pulli will not release any information about the fire Juul decides he will seek to clear the enforcer.

Pulli has come from a body building segment of the Norwegian gang world. They train incessantly at the Fighting Fit gym. Pulli’s old friends are fractious, sometimes subject to sudden anger – probably steroid rages – and casual violence. They do not like Juul.

Unfortunately, the book did not work well for me.

I found the amount of back story from the first book, Burned, inadequate to completely understand this book.

The characters are diverse and the means used to induce an innocent man to commit murder – how far would you go to protect your family – intriguing but that character’s actions under the pressure of the threat were not credible.

The pace of the story was slow for me. It picked up in the last half of the book but I found it hard to keep focused early in the book.

I am in a distinct minority with regard to my opinion of the book. I am sure it would have been better to have read Burned before I read Pierced but I doubt I will read the next in the series.

I fear it was a book I approached with too high expectations. Bloggers I respect such as the late Maxine Clark at Petrona, Jose Ignacio at The Game’s Afoot, Sarah at Crime Pieces, Bernadette at Reactions to Reading, enjoyed the book far more than myself. I avoid reading reviews but like to know if a reader enjoyed a book. All had high praise for Pierced.  Such is reading. Different opinions are reached by readers.

This review will by my post for the letter "E" in the Crime Fiction in the Alphabet meme at Kerrie Smith's fine blog, Mysteries in Paradise.

I do appreciate Simon & Schuster providing me with a copy of the book. (Apr. 11/13)

****

My connection to Enger and his book comes from my Norwegian heritage. My paternal grandfather grew up in the Lofoten Islands off the northern Norway coast. The book is set in Oslo. Last fall Sharon and I spent time in Norway and visited Oslo for several days.

Crime Fiction Pick of the Month for April of 2013

For the month of April my reading was a touch below average in quantity. 

With regard to crime fiction I read 4 books.

I started with Pierced by Thomas Enger. It is not hard to guess what my entry for "E" in the Alphabet in Crime Fiction meme will be next week.

The second book was High Chicago by Howard Shrier featuring his Toronto based sleuth, Jonah Geller.

The third was Showdown at Border Town by Caroline Woodward. It was my entry for "C" and is an adventure in the Leaders & Legacies series featuring young future Canadian Prime Ministers. Showdown featured a 12 year old Paul Martin in and near Windsor.

The fourth was a legal mystery, Murder One, by Robert Dugoni. What I found most interesting was the email exchange I had with the author on a legal ethical issue after reading the book.

During April I also finished the third volume in William Manchester's wonderful biography of Winston Churchill. Defender of the Realm commences with Churchill becoming Prime Minister in the dark days of 1940. While it does cover the rest of his life over 75% of the 1,054 pages cover his actions during World War II. This volume was finished by Paul Reid as Manchester died before finishing this volume. I will be putting up posts about the book especially about Winston and "words". For a reader interested in Churchill's amazing life the series is long but worth the effort.

In crime fiction my pick of the month is Showdown at Border Town. It is both a good mystery and an impressive debut by a teenage Canadian author.

Email Exchange with Robert Dugoni on Legal Ethics

In my last post I put up a review of Murder One by Robert Dugoni. There was a legal ethical issue that troubled me. The following exchange of emails with the author delves into the issue. Potential readers of the book are warned that the remainder of this post does contain spoilers. Dugoni graciously advised that I could post the following portion of his email with spoilers.

Robert

In a week I am going to be posting a review of Murder One on my blog, Mysteries and More from Saskatchewan, which is located at mysteriesandmore@blogspot.com.

I found it a very good legal thriller.

I am a lawyer whose practice includes civil and criminal litigation.

There was an ethical issue that troubled me in the book.

In Saskatchewan David Sloane would have been in deep trouble with the Law Society had he taken on the representation of a client with whom he was having a sexual relationship.

To represent her on a criminal charge while publicly having an affair just could not happen here.

Can it be in Washington that lawyers can sleep with their clients?

If not, I would be interested in knowing why you set up the plot for them to be sexually involved while he represented her.

I may write a post about the issue but it would be subsequent to the review and state that it may contain spoilers for readers.

….. (I am omitting a portion of my email as it contains a spoiler directly about the ending) …..

If you would like to respond to this email and have your response in the post please let me know. If you would prefer to respond but not have the response posted I would not put up the reply.

I am glad to have found a “new” legal writer to read from America.

Best wishes.

Bill Selnes

****

Bill

Thanks for the email.  Yes, this was a potential conundrum. Here in Washington Professional Rule 1.8 (j) provides that the attorney cannot represent a client unless the sexual relationship pre-dated the date he is asked to represent the client. That is one of the reasons why, in Murder One, I had to establish the relationship before the request for representation.  While I don’t advocate an attorney representing a client he is sleeping with, for the purposes of the story I needed that bond. You will note that after the point in the book where Sloane figures out Barclay is guilty (not announced to the reader until the end) he manages not to sleep with her. For a while I considered not granting Barclay bail for this reason also. It is important to my readers that Sloane’s moral compass point north.

A second conundrum was whether a court would let Sloane represent her at all given his lack of criminal defense background.  I debated having John Kannon stay involved and represent her but that would have been a different book. I needed Sloane to be the main focal point. Again my criminal defense and prosecutor friends told me it was more probable he could represent her so long as the State was not seeking the Death Penalty.

….. (I omit a portion of the email related to the ending that I consider too much a spoiler.) …

My current novel involves an interest legal issue as well. A Post Conviction Relief Hearing for a convicted murderer. I’m having a lot of fun with it and with Blackstone’s Maxim about the guilty going free being better than one innocent being convicted. 

Thank you for taking the time to write and the mentions. I always enjoy hearing from readers, especially lawyer. I don’t always get things right, but I still work at it.

My best to you. I visit your country every year for the Surrey Writer’s Conference

Bob Dugoni

"D" is for Murder One by Robert Dugoni

“D” is for Dugoni, American author and lawyer. I am posting a review of his book Murder One. 

****

Murder One by Robert Dugoni – Seattle civil litigator, David Sloane, is recovering from the murder of his wife, Tina, when he has a chance encounter with Barclay Reid, the lovely managing partner of a large law firm. Sparks fly and they immediately enter an intense relationship.

Reid is also dealing with the consequences of a devastating personal loss. Her daughter, Leenie, has died from a heroin overdose. Reid is intensely frustrated when Filyp Vasiliev, the supplier to the dealer who sold the heroin to Leenie, is not convicted of trafficking because the Federal Court trial judge finds his rights have been violated because there has been an unlawful search of his car dealership.

Dugoni has some deft touches. On revenge Sloane speaks to a Catholic priest, Father Allen who says to him:

Thoughts of revenge are natural, David. You suffered a great loss, a great injustice. You wanted someone to pay for it. But always remember, it’s our actions that define us, not our thoughts, and even then God will forgive those who seek His forgiveness.   

After mutual consolation in the bedroom Reid broaches with Sloane having him represent her in a wrongful death lawsuit against Vasiliev. She will seek to break Vasiliev financially. It is the same type of suit that the families of Ronald Goldman and Nicole Brown pursued against O.J. Simpson. It is not an easy action for Reid. Whereas the Goldman and Brown families needed only proof on a balance of probabilities O.J. was the killer, in an action against Vasiliev the connection for finding him liable for Leenie’s death is far more tenuous. He did not sell any drugs directly to her. As she prepares to sue Reid continues to pursue the passing in Washington of drug dealer liability laws that would make it easier for civil actions to be taken against traffickers such as Vasiliev.

Reid has a good reason to want to retain Sloane. He is famed as the lawyer who does not lose.

While Sloane is leaning to representing Reid the question is rendered moot when Vasiliev is murdered with a single shot to the back of the head in his home.

Seattle detectives, Kinsington Rowe and Tracy Crosswhite-Jones, investigate the murder. Their office has a macabre symbol to identify the next team to handle a homicide. The “skull of death” is hooked to the top of the appropriate cubicle.

With Reid’s prominent public statements about Vasiliev she becomes a suspect. As the police investigates the evidence becomes stronger against Reid and she is charged with Murder One.

To Sloane’s surprise Reid wants him to be her defence counsel. Not practising criminal law he is reluctant to take on the case. She insists that he represent her. While some readers and lawyers may not find it credible to have a civil lawyer take on a major criminal trial it is realistic to me as I try both civil and criminal cases.

The trial is the best part of the book. Sloane faces a very competent prosecutor in Rick Cerrabone. While not as flashy as Sloane he skilfully presents the evidence.

It is not a predictable trial. The result is hard to forecast.

Dugoni does well in presenting forensic evidence in an interesting way. He demonstrates the challenges inherent in cross-examining expert witnesses while showing a well prepared lawyer can weaken an expert’s evidence. It was nice to see the hard work of document review rewarded in the trial.

I found abit too much of the “beautiful” and “handsome” protagonists in the book. As the trial took place the roles of their physical appearances diminished.

I had heard of the book because it was short listed for the 2012 Harper Lee Prize for Legal Fiction but did not make the effort to look up the book until reading a review by Norman Price in his fine blog, Crime Scraps Review, who said he had been led to read the book by my reference to it in this blog from a post on the Harper Lee Prize. The world does go round and round.

There was a legal ethical issue in the book that troubled me. I will discuss it in my next post as the discussion contains spoilers. Dugoni graciously provided information I was able to use in the post.

It is a very good legal thriller. I am going to keep an eye out for other legal fiction by Dugoni. (Apr. 19/13)

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My connection to "D" is for Dugoni is that both of us are lawyers and a significant part of my practice involves litigation.