Author Archives: Kim

Noir and the future

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I have a particular love for film noir. So moody. So blunt. So smoky. I love the ambiguous morals of the heroes, the gritty settings, the hard and dangerous femmes fatales. I also like how well film noir can be adapted into speculative fiction; Blade Runner is on of my all-time favorite movies. I’m in edits now for a novel that’s a noir private detective story in a medieval fantasy setting–with a bit of gay romance added in.

Last night, I watched the film M, which is considered to be a bridge between German Expressionism and film noir. It was made in 1931 and was Peter Lorre’s first major role. It’s interesting from a film history point of view, in that it demonstrates early use of techniques we now take for granted. But what I especially enjoyed was the cinematic journey to pre-WW II German criminal justice procedures and issues. Since I’m no expert at all on that particular topic, I have no idea how accurate the depiction is. But it’s a good reminder that if we’re successful as authors, our versions of reality will remain long after living memories are gone. In a way, this gives us enormous power. Imagine some historian from the future using your work to help discern what life was like in the early 21st century. What kind of picture would they get?

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I’ll be on hiatus here for a few weeks as I travel in Zagreb and Paris. In the meantime, feel free to submit questions!

How long, how long?

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If you watch crime shows on TV, you’re used to seeing miraculous scientific analysis occurring within less than an hour. And you probably know that the reality is quite different. In fact, crime lab backlogs mean that law enforcement (and others) may wait for well over a year before the results are in.

But what about the trial itself? What kind of timeline is reasonable?

The 6th Amendment guarantees the right to a speedy trial, but it doesn’t give an guidelines for what’s considered acceptable. In practice, a criminal trial might not occur until several years after the events, especially if the case is complicated or if it requires a lot of preparation by either side. For example, I was recently consulted as an expert in a fairly straightforward homicide case. The person was killed in 2015, but trial is only now set to happen.

While long delays by the prosecutor may result in charges being dropped (because of the 6th Amendment), such an outcome is extremely rare. In most cases where the prosecutor wants a long time to prep, so does the defense, and the defense will agree to continuances.

Long delays in criminal cases are problematic, however. If the defendant can’t make bail, he’ll be stuck waiting in jail. Furthermore, witnesses disappear or die, evidence gets lost, and memories fade.

If you’re writing a story involving a criminal trial, make sure your timeline is realistic. And don’t forget that 95% of cases get settled (usually by plea bargain) without ever making it to trial.

Not much new under the sun

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Today’s post might be of particular interest to you if you write historical or spec fiction.

One of the interesting things about the US criminal justice system is how old many of its components are. Although we’ve modernized certain aspects over the centuries, most of the basic building blocks can be traced back to England in the years shortly after the Norman Conquest. Circuit judges, juries, sheriffs, coroners, writs of habeas corpus… all of these concepts would have been familiar to a 12th century English person. Many of the modern definitions of crimes and defenses also are evolved versions of common law definitions created many hundreds of years ago. This is a handy thing to know if you’re writing something set in medieval or Renaissance times.

However, you still want to be careful. Last night my husband watched a King Arthur movie. I only saw bits of it–enough to know that the writers got stuff wrong. King Arthur was around several centuries before the Norman Conquest, and the CJ system then–such as it was–would have likely followed Roman and/or Celtic traditions rather than the rules laid down by Norman King Henry II and his successors. So if your story takes place before 1066, don’t expect anything much resembling our modern CJ system.

Furthermore, some pieces of our CJ system were developed well after the Henry II was dust in his grave. For example, although England had poorhouses and workhouses as early as the 16th century, prisons weren’t really used as a method of punishment until the 18th century. (Jails have been around much longer, but then–as now–they were used mostly to hold prisoners who awaited trial.) Professional police forces originated with Robert Peel’s London Metropolitan Police (the Bobbies, of course) in 1829. The first juvenile court was created in Chicago in 1899.

A good working knowledge of history can give your story a solid grounding, whether you’re writing a historical piece or one set in an alternate universe.

Bang

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When I’ve traveled, I’ve learned that there are many things about the United States that mystify Europeans. I often have no logical explanation for them either. One topic that often comes up is guns. I’m not going to get into the heated debate about gun control today. And although I have some theories on the topic, I’m also not going to try to explain why gun ownership is such a fraught topic in this country. What I will do, however, is give a very quick introduction to the laws on gun ownership. If our characters are going to carry, you should know about this.

The mot famous law regarding weapons is the 2nd Amendment to the Constitution, which states: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. Like most of the other rights enumerated in the Constitution, this one is succinct. It doesn’t define it own terms, and it’s been up to the courts to interpret it and, on occasion, limit its scope.

Federal law places very few limits on gun carrying and ownership; those restrictions have been left to the states. This means laws can vary a great deal across jurisdictions. Also, most jurisdictions make distinctions between handguns and long guns (rifles and shotguns). Some states have different rules depending whether the gun is loaded. Some require permits and some do not, whereas in a few states openly carrying a gun in public is prohibited even with a permit.

So can your character legally walk down Main Street with a visible gun? Depends where he is.

There are many other variables to consider as well. What is the age, criminal history, and mental status of your character? What kind of gun does he want? When, where, and how does he want to acquire the gun? What kind of registration or licensing process is required? All things you’ll want to consider before handing him a weapon.

Also, you might want to think about the distinction between gun access and gun ownership. I live in California, which has some of the country’s most restrictive gun laws. But when I went to a shooting range, all I had to do was show my drivers license and they happily handed me a Berretta and a box full of bullets.

So you’ve heard this story from me many times before: before you write, research the relevant laws in your jurisdiction. You can begin with the Giffords Law Center or the NRA, both of which are partisan, but they do offer correct information.

Juries

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Last night I heard Rachel Maddow discussing the difference between grand and petit juries. (Psst, Rachel! )It’s pronounced petty.) I’ve posted on this before, but now is a good time for a refresher.

Grand juries, also called presenting juries, date back to 1166, when King Henry II made a variety of changes to England’s judicial system. Among other things, he appointed judges who would ride around–ride circuit–from town to town, hearing cases. When a judge arrived in a particular town, a panel of local bigwigs would present to him all the cases that had accumulated sine the last trials.

Nowadays, grand juries may be chosen in a variety of ways, depending on jurisdiction. Their size differs too, although it’s often more than 12 jurors. Their job in criminal cases is to determine whether enough evidence exists to proceed with the prosecution. In this way, they are said to act as shields against unjust charges. But they also act as swords because they can investigate, call witnesses, and subpoena evidence.

Grand juries are required in federal cases and in some–but not most–states. They don’t decide guilt, but rather whether there’s enough evidence to go to trial.

Petit juries are called that because they’re smaller–usually (although not always) 12 members. Again, their roots lie in the 12th and 13th centuries. In 1215, the Catholic church decided that it would no longer try English defendants by ordeal (e.g., making them carry hot irons or put their hands in boiling water). This means England needed a new way to determine guilt. Since everyone in England was already used to presenting juries, it was relatively easy to give juries the new task of deciding whether defendants were guilty. The judge acted as a sort of referee, but in the end, the jury determined the facts of the case.

In the US, any defendant who’s facing at least 6 month incarceration has the right to ask for a jury trial.

Attorney-client privilege

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Okay. Once again, not to get political… but a certain son of a certain sort-of elected leader (sigh) claimed that the attorney-client privilege applied to certain phone conversations between him and his father. Neither of whom are attorneys. But, said Junior, it totally counts because Dad’s lawyers were listening in on the conversation.

Does Junior’s argument have any legal validity? Of course not. But let’s look at the privilege itself.

To take a step back, it’s important to know that, in general, a person’s conversations with another person may be used as evidence. This is true whatever the mode of those conversations: live in person, voice via telephone, electronic via text or email, etc. But there are a few exceptions to this rule, situations where those conversations are protected and where the opposing side cannot “discover” them (i.e., force the other side to hand them over). These exceptions—or privileges—include conversations between physicians and patients, between clergy and penitents, between accountants and clients, between spouses, and between lawyers and clients. Each of these has special rules; today I’m just addressing the final one.

The primary purpose of the rule is to allow clients to be frank with their lawyers, which in turn allows lawyers to be more effective at defending them. In order for the privilege to apply, at least one of the people must be a lawyer, the other person must be that lawyer’s client (or seeking to become one), and the conversation must be about legal matters. Therefore, although I’m a lawyer, a friend who casually chatted with me about his plans for the next day would not be able to invoke the privilege to protect that conversation. And just because Dad’s lawyers were listening to a conversation doesn’t mean the privilege can be invoked.

Even when the privilege applies, there are exceptions. One interesting exception is that it generally can’t be used if one or more parties uses the information to commit a crime. For instance, if Bruce asks his lawyer, Tina, how best to cover up the fraud he plans to commit, that discussion isn’t privileged.

Another twist has to do with perjury. If, because of conversations with the client, the lawyer is aware of the truth of the situation, but then the client lies about those facts on the stand, the lawyer may have the ethical duty to rat him out to the judge. Thus, a lawyer may get caught between her duties to the defendant and her duties to the court. Plot bunny! (Many lawyers handle this situation by refusing to let a client take the stand if they believe the client will perjure himself.)

Furthermore, a client can waive the privilege and voluntarily choose to share privileged communications. Simply discussing the conversation in public constitutes a waiver.

Another exception to the privilege is especially pertinent to Junior’s situation. The privilege is nullified if anyone aside from the attorney and client was present during the conversation. Such as, say, a Russian lawyer who had neither father nor son as a client.

Of course, if certain sons of certain leaders can be this clueless about how the privilege works (or at least pretend to be), so could your characters. So feel free to make this a plot point, if you wish.

 

 

Lesser included offenses

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This is the third in a series of posts related to James Fields, Jr., who drove his car into a crowd of counterprotestors in Charlottesville, Virginia. His charge was recently upgraded from second to first degree murder. Last week I wrote about the difference between these two charges.

As I said last week, in order to get a first degree conviction, the prosecutor will have to prove that Fields premeditated the killing. That’s going to be somewhat tricky, because there’s no evidence that Fields planned the act more than a few moments in advance. A few moments is legally enough to constitute premeditation, but it makes for a difficult case. What happens if the jury finds insufficient evidence of premeditation?

Well, Fields almost certainly won’t go free. For one thing, he’s also facing about ten other charges related to the incident, including malicious wounding. More importantly, however, the jury could still find Fields guilty of the lesser included offense of second degree murder.

What does that mean? Every crime is made up of individual ingredients, called elements. Prosecutors must prove all these elements in order to gain a conviction. Sometimes two offenses consist of very similar elements. For example, larceny is taking someone else’s property, while robbery is taking someone else’s property through threat or force. Breaking and entering is unauthorized entry into a structure or vehicle; burglary is unauthorized entry into a structure or vehicle with intent to commit a felony or steal something inside. In these examples, larceny is a lesser included offense of robbery, and b & e is a lesser included offense of burglary. Each lesser offense includes some but not all of the elements of the greater offense.

Okay. So second degree murder is intentionally taking human life. First degree is intentionally and with premeditation taking a human life. Second degree is a lesser included offense of first degree. And the law says that when a jury fails to find a defendant guilty of first degree murder, they can still convict for the lesser offense if the prosecutor has proven all the lesser offense’s elements. In Fields’s case, even if the prosecutor fails to prove premeditation, he might prove that Fields intentionally killed the victim.

First versus second degree

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I’m in the middle of a series of posts related to the case of James Fields, Jr., who drove his car into a crowd of counterprotestors in Charlottesville, Virginia, killing one person and injuring others. He was originally charged with second degree murder, but the charges have been upgraded to first degree.

So what’s the difference between first and second degree murder?

Both crimes involve the same act: taking a human life. What differentiates them (and all other forms of homicide) is the defendant’s mental state. For second degree, the defendant must intentionally kill. For first degree, he must kill intentionally and with premeditation. In other words, second degree might be a split second decision, but first degree requires some amount of forethought. Because we believe that a planned murder is more blameworthy, first degree carries a more serious penalty than second.

Now, when I say “premeditation,” you may be picturing a villain spending months scheming away, developing the perfect plan to do away with her nemesis. That would certainly count. But the law doesn’t actually require that much. In fact, the defendant might ponder for only seconds before she acts. Or if the killing takes some time—such as when the victim is strangled, for example—the pondering might even take place during the act itself. All that’s required is proof that the defendant had time and opportunity to think about what she was doing to the victim.

It’s also worth noting that the defendant doesn’t have to develop intent to kill any particular person. It’s enough if he decides to create substantial risk to human life in general—such as shooting into a passenger train, setting up a bomb in a public place, placing poison in something people are likely to consume, or dropping a heavy object off an overpass onto a highway.

In Fields’s case, videos show the defendant driving slowly toward the crowd, backing up and then accelerating directly into numerous people. He then quickly reversed again, striking more people before getting away. The prosecutor will have to prove that in those short moments before his foot hit the gas, Fields deliberately decided to strike people with with his vehicle at a substantial speed. If the prosecutor can prove that, Fields may end up convicted of first degree murder.

Next week: What if the prosecutor can’t prove premeditation?

 

Evolving charges

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On August 12, 2017, a group of people were in the streets of Charlottesville, Virginia, counterprotesting white nationalists. James Fields, Jr., a man with a reported fascination for Nazis, apparently deliberately drove his car into a crowd. He killed one person, Heather Heyer, and injured dozens more. Just last week, prosecutors announced they’d be seeking a first degree murder conviction against him. For the next few weeks, I’ll be posting on some issues related to this case.

Today I’m going to talk about how criminal charges might evolve in a case.

In a typical criminal case, a person is arrested by police. The police report will list at least one potential criminal violation; police are supposed to have probable cause to believe that the suspect has committed this crime.

The prosecutor will review the report and decide whether to pursue the case (incidentally, this is one reason why police must have decent writing skills). If the prosecutor opts to go forward, she’ll issue something called a criminal complaint. This will specify the parts of the criminal code which the defendant is alleged to have violated. These charges may or may not be the same crimes named in the arrest report because the prosecutor may find that fewer, additional, or different offenses are better substantiated.

Within a short period of time—usually two business days—the defendant will be arraigned. As part of this process, he’ll be informed of the charges in the complaint.

In Fields’s case, the complaint charged him with second degree murder along with a slew of lesser offenses such as malicious wounding.

After the arraignment, the prosecutor will conduct additional investigations (as will the defense attorney). Eventually there will be a probable cause hearing, the purpose of which is to determine whether there’s sufficient evidence to proceed with the case. That hearing may be a preliminary hearing, in front of a judge, or it may be a grand jury proceeding, in front of a group of citizens. In either case, the prosecutor has to produce enough evidence for the charges to stick. And sometimes, perhaps pursuant to additional evidence that’s been collected, those charges may be different from those in the complaint.

That’s what’s happened in Fields’s case. The preliminary hearing was last week, and the prosecutor opted to upgrade the most serious charge from second to first degree murder. The judge found enough evidence to support first degree, so that’s the charge Fields now faces.

In some cases, charges may continue to evolve after the probable cause hearing. Prosecutors may drop some charges or, pursuant to a plea bargain, defendants might plead guilty to a lesser offense.

Next week: the difference between first and second degree murder.