FIVE THINGS BEING CRIMINAL LAWYER TAUGHT ME ABOUT WRITING
- Complexity of Characters
The need for complexity in fictional characters extends to criminal characters. Crimes are not the exclusive realm of one-dimensional individuals. I learned as a criminal defense lawyer that being charged with a crime shakes people to their core. The prospect of spending a good portion of their life in a steel and cement box tends to peel away the layers we wrap ourselves in to protect us from life’s realities. People are stripped raw. As a result, what I learned, to my surprise, was that no matter how abhorrent the acts my clients committed, I was always able to find a vein of humanity in them with which I could identify. Like all of us, they were a bundle of complex and contradictory impulses, both good and bad. Most had histories that made their life choices, while not acceptable, at least understandable. As the old adage says, there but for the grace of God go I.
- The effect of the media on criminal cases
It is very difficult to write with authenticity about a criminal investigation or a legal thriller involving a sensational case without addressing the impact of the media coverage that such events naturally attract. News coverage puts pressure on police detectives and their superiors to go flat-out and quickly solve the crime, which may result in a rush to judgment. When charges are filed against a suspect, the media spotlight shifts onto the judge and the prosecutor. Both must stand for election and may fear a backlash at the ballot box if their decisions meet with the media’s disapproval. Consequently, the prosecutor feels he or she must win at all costs and seek the harshest punishment in order to appear “tough on crime.” A judge may tilt his or her rulings toward the prosecution on close legal questions to avoid appearing “soft on crime.” This relationship undermines what we cherish most in our judicial system: the impartial application of the rule of law.
- Prosecutors are not accountable for misdeeds.
It is not unrealistic to write about prosecutor’s stepping over an ethical line. Prosecutors, no doubt, have a difficult job. Not because, as is portrayed on TV, they have the “deck stacked against them,” but rather that they must often act against their own competitive instincts. A prosecutor is expected to advocate firmly but fairly while observing the rules that guard against the conviction of innocent people. The pressure on prosecutors to win in order to advance their own careers and reputations may sometimes cause them to ignore these “legal technicalities.” They may be tempted to hide exculpatory evidence, coach a witness, use discredited informants, or tolerate police fabrications, all in the name of “we know he’s guilty anyway.” When such misdeeds are discovered, the courts are reluctant to actually punish an offending prosecutor, choosing instead to consider such violations as “harmless legal errors” or, at most, order a new trial. This lack of accountability creates a sense of immunity among prosecutors, who are more and more tempted to step over the line on close cases. And close cases, by their very nature, are exactly the type of case that might wrongly ensnare the innocent.
- We are a very punitive country.
Contrary to some political rhetoric, it is unrealistic to write about crime from a viewpoint that our courts are “soft on crime.” As a country, we incarcerate people at a higher per capita rate than any other nation in the world: more than Russia, China, or Cuba. Our incarceration rate is five times as high as any other democratic, industrialized country, yet our crime level is comparable with these nations. With 5 percent of the world’s population, we have 25 percent of the world’s prison population.
Much of this mass incarceration is attributable to the length of our punishments, which are much harsher than other countries for similar crimes. My own state of California started this trend with the 3 Strikes Law, which imposed a life sentence for a third felony conviction. Politicians followed by competing with one another to impose longer and longer sentences on any available crime. This has led to such massive overcrowding in California’s thirty-three prisons that the U.S. Supreme Court has ordered the state to reduce its inmate population.
- Informants are a good plot hook.
In writing about a police investigation or a legal thriller, a realistic hook to advance the plot is the emergence of an informant. A sensational case always attracts people looking to better their lot by offering to testify to allegedly truthful incriminating evidence. The police and prosecutors have developed a symbiotic relationship with this type of “witness.” Prosecutors and detectives need informants to fill a gap in the state’s case and informants are angling for some benefit, such as a lenient plea agreement on their own case, a cash payment, or resettlement and a fresh start. The corrupting influence on the justice system results when an informant with an obvious incentive to lie joins with a prosecutor or detective who is willing to overlook his or her questionable credibility in order to make a case.
Bio: Ed Rucker is a criminal defense lawyer in California who has tried over 200 jury trials, including 13 death penalty cases. He has received numerous awards, including the L.A. Criminal Bar Association’s “Trial Lawyer of the Year,” the L.A. County Bar Association’s “Distinguished Career Award,” and he is listed in “Best Lawyers in America.” Under the auspices of the Ukrainian government, he spent two years establishing a legal assistance program for criminal cases. His forthcoming legal thriller, The Inevitable Witness, will be published in May.