Objection! Objection! True Crime Tuesday

HANK: It's never a dull moment to watch TV with my husband. (I don't have a photo of us watching TV, so I just stuck in this one. You won't notice, right?)

Lawyer shows, cop shows, thrillers, courtroom dramas. Because both of us are sort of--participatory--when it comes to plot and action and dialogue. We want it to be correct. And so often, it isn't.

So, the other night for instance, we were watching The Good Wife. A terrific show, well-written, highly entertaining, and side note, Juliana Margulies, who wasn't my favorite on ER, IS now. And she has the best eyebrows on the planet. Worth watching, just for those. But I, as always, digress.

Anyway, we're watching TGW, and there's a scene where a district attorney is in front of a grand jury, presenting evidence in a case. And then, as the scene progresses, the DA begins to say things about the guilt of the defendant. The evidence is overwhelming that the person committed the crime, the guy says. The forensic evidence clearly shows that he was present at the scene. (This is all paraphrased, since we didn't write it down, but like that.)

So Jonathan is in his easy chair, shaking his head. Are you kidding me? he says. Pathetic.

I hit pause. What? I say.

That would never happen! he says. The prosecutor is only allowed to present evidence through witnesses to the grand jury. He's not allowed to make arguments. It's not like the closing argument of a trial.

So that scene is..? I say.

Wrong, he says.

It's especially entertaining to watch Jonathan when there's a "lawyer" character doing examination of a witness in a courtroom setting. "Objection!," he'll call out. He can't help it.

Why? I say? Leading, he'll say. Assumes facts not in evidence. Calls for a conclusion. Hearsay!

(He can't help it.)

In some episode of some show, the jury was deliberating and some new evidence came to light, and the judge reopened the trial. "Never happen!" Jonathan yelled. "They'd never do that."

So, as a mystery writer and as a reporter, you can see how it's lovely to have in-house counsel. In DRIVE TIME, someone is called in by the police for questioning. Hmm, I thought. What should he say? Does he have to go? What would his lawyer tell him to do? And why? And I'm confident, after my consultation with Jonathan, that I got it right.

In writing fictional crime, there is a real element of true crime, right? Because being accurate is a good thing. And because there's always someone in the legal world or law enforcement who;s gong to email you and say--are you kidding? And then proceed to tell you why the oh-so-perfect scenario you set up would not fly in real life.

And looking stuff up doesn't always work.

So, on this True Crime Tuesday, Jungle Red helps you get it right. With Jonathan, our very own in house counsel, here to answer your questions. (Click on his name for his info. VE-ry interesting. And surprising, I bet!)

JRW's first--anyone?

ROBERTA: Hank you paint such a hysterical story!! And OH MY GOSH, the timing on this is so great! I started to talk to Jonathan at the Crimebake but time was short and we were at the cocktail hour...Jonathan, you're such a good sport!

JONATHAN: Thanks. It's all for the cause. So--ask away!

ROBERTA: I realized that after eight books, I've never had a character hire a lawyer. But Hayley Snow needs one now. The cops have brought her in to the station in Key West for the THIRD time and she finally says she's not talking, she wants to call her father. Her father finds her a lawyer who comes right down to the KWPD. Here the lawyer tells the detective he wants a room without a camera to talk to his client. (I'm sure this must be wrong, but I was hoping you would say that since the cops are skating on thin ice with their evidence, they might agree to it.)

JONATHAN: If she's not under arrest, she's free to go. So if I were her lawyer, I'd say, we're leaving. If they arrest her, they have to advise her of her rights, and her lawyer would advise her not to talk, at all, not a word, until he's had time to talk to her as much as he needs.

She's absolutely entitled to privacy! If they record in any way the communications between her and her lawyer, they're violating attorney-client privilege.

ROBERTA: Then I need to know what kinds of questions he'd ask her? What really happened the morning of the killing? what was her relationship to the dead woman? Does she have an alibi? Anything will help thank you Jonathan!

JONATHAN: The first thing I'd say would be--tell me everything there is to know about what happened. Including whether if she did what she's charged with or suspected of. If she did it, or if she didn't do it, why does she think people suspect her? If she didn't do it, does she have an alibi?

HALLIE: I'm comin' over to watch TV!

My question: What if the defense lawyer knows that his client is guilty (of murder, just for example)? Would a good lawyer ever try to implicate someone else?

JONATHAN: Yes. Of course, the lawyer would not create evidence or testimony that he knows to be false. But if the evidence against his client could reasonably point to someone else, a good lawyer would bring out that evidence, try to elicit whatever evidence exists that might point to another person with a motive, a person other than his client.

RHYS: Since I set my stories in the past and I don't think I've ever had a courtroom scene, I've escaped most of the pitfalls that would make Jonathan leap up and yell at the screen. What's more I set one series in 1900s New York City in which the police and politics were so corrupt that I could get away with almost anything. But I do have a question: if someone was killed while working on a construction project because sub standard concrete was being used, would their attorney sue for wrongful death, negligence or what?

JONATHAN: It's called a wrongful death action, usually brought by the estate of the victim, and would be based on a theory of product liability. A manufacturer of a substandard product could be liable for injury or death caused by the product. Product liability is based on negligence, design, manufacture or production of the product that caused the injury.

HANK: Would the manufacturer have to know the stuff was bad?

JONATHAN: It depends. If the design was substandard at the time the product was created, that's usually sufficient. The manufacturer is charged with manufacturing a product which conforms to the state of the art.

JAN: I watch the Good Wife, too (LOVE JULIANA), with my husband who isn't a renowned defense attorney, but even with his rusty and now very distant experience as a public defender, shouts out all quite a bit of "That would never fly" in a court-room. So I can just imagine Jonathan's reaction.

But what I want know very specific to Massachusetts and the true crime book I'm working on. If, in jury selection, the prosecutor is allowed 18 peremptory challenges - to get rid of potentially unsympathetic jurors. And there are multiple defendants being tried together -- does each defendant get 18 peremptory challenges or do they share and divide up 18 challenges?


JONATHAN: In Massachusetts, multiple defendants share the challenges, and have to agree on the exercise of each challenge. However, the defendants could ask the judge for more individual challenges, and permit them to exercise them individually. But that would be within the discretion of the judge.

Pretty interesting, huh? So--bring it on! Jonathan's here today to answer more...only fictional questions, though, okay?

***********************

Tomorrow--Mary Jane Clark! And then--info about book publicity--from an amazing expert. Plus: prizes.