THE LONG GOODBYE
The Challenge of Writing a Mystery about Death Row
Writing mysteries about the death penalty as it exists in much of the United States presents some unusual problems. To start with, after defendants are convicted and sentenced, their cases move like glaciers through the legal system. Because we want to believe that executing someone on death row is a grave decision not to be made without a lot of thought, we’ve created a legal process with a lot of steps between conviction and execution (or, for the lucky ones, exoneration or a reduced sentence). Defendants have a direct appeal and habeas corpus (a proceeding by which new evidence can be presented) in the courts of the state that convicted them, followed by further litigation in the federal court system. Cases lurch through the system, moving from one court to the next, and sometimes back to the courts that had pushed them on earlier. The entire process takes decades. This can be a good thing because the legal system doesn’t always work as well as it should, and it can take that long for a defendant’s lawyers to get hold of information that’s been hidden for years in the files of prosecutors or police detectives, or to find evidence and get a court to permit DNA testing. For a lawyer involved in one of these cases, it can mean that a case you began working on soon after your first child was born may still be ongoing when your children have children of their own.
Twenty years of legal trench warfare doesn’t make for exciting fiction about death row. Usually there is little courtroom action after the trial is over. The defendant’s legal team will do a lot of investigation—interviewing witnesses, gathering documents, seeking lost evidence—as if preparing for a trial, but the results are presented in written briefs and affidavits, generally followed by decisions in writing. Court hearings in which testimony is taken are the exception. After legal pleadings are filed, cases can sit for years in the courts without being ruled on. The pleadings are long and often involve complex legal issues. And “the machinery of death,” as a Supreme Court justice famously called it, is an apparatus most judges seem reluctant to operate.
Capital defense has been called the brain surgery of legal work, and mastering it takes time and dedication. Real death penalty defense attorneys tend not to be young. Nor are they glamorous; working defense lawyers seldom are because they’re too busy and don’t make enough money to cultivate a look. Clients, too, get old after half a lifetime in prison. They watch from inside as their children grow up, their parents die, their exes remarry; and they acquire the illnesses of old age: high blood pressure, diabetes, heart disease. A book following the entire progress of a capital case would probably end up being a sort of Bleak House or Buddenbrooks, a multigenerational saga of the interlocking lives of the defendant, the members of the legal team, and the people around them. It isn’t the stuff of thrillers.
To turn a capital case into a mystery requires some tweaking of the narrative. That often means starting at a pivotal point well into a case and following a path to a resolution that might be permanent (death or exoneration) or temporary (something good happens, but the case moves on). For a writer who wants to paint a realistic portrait of the legal system, this truncated view—we parachute in, find the crucial evidence, and win the case—begs the question. For readers who want resolution and closure, ending a book with the defendant still in jeopardy is unsatisfying.
Building suspense while staying faithful to the truth is another challenge for the writer. Once the trial is over, a lot of the lawyer’s work consists of researching, writing, and filing briefs and pleadings. The investigation of the case can be fertile ground for building suspense because the lawyer may get to meet the defendant’s family and other people from his past who could produce the crucial facts that will, in the hands of the right defense team, the right judge, get the defendant off death row. The cases are always, at that point, cold, which gives the lawyer-protagonist the task of reconstructing a history obscured by fading memories and the loss of witnesses who die or disappear. On the other hand, it’s hard to put the lawyer-hero in physical danger without stretching truth past the breaking point. In real life there are no chase scenes, no standoffs at gunpoint, and no skin-of-the-teeth escapes from dark cellars (unless you count the archives of courthouses.)
As a practicing capital defense attorney I used to hate television plots where a cadre of intense and beautiful millennials, with clothes and hair no real lawyer would have even if she could afford it, swoop in like legal superheroes and over a long weekend rescue a young and innocent defendant from the brink of execution by finding the one piece of evidence everyone else has missed. Now, having tried my hand at writing mysteries about defending clients sentenced to death, I still cringe at those shows, but at least I understand what the writers are up against, laboring to create an exciting story out of an intractable reality. The truth is important—how could it not be when the stakes are literally life and death?—but not as compelling as we might like for the reader. There are times when, rather than fighting too hard against the resistance of the medium, it may not be so bad to let it go for awhile and just fill our need for a good fantasy.
(L.F. Robertson is a practicing attorney living in California. She has written two mystery novels, Two Lost Boys and Madman Walking (publishes May 2018) from Titan Books.