Retelling the Darkest Story: Mystery, Suspense, and Detectives in a Brief Written on Behalf of a Condemned Inmate - Philip N. Meyer

• Publication year: 2007

Retelling the Darkest Story: Mystery, Suspense, and Detectives in a Brief Written on Behalf of a Condemned Inmateby Philip N. Meyer^*

I've never used the whodunit technique, since it is concerned altogether with mystification, which diffuses and unfocuses suspense. It is possible to build up almost unbearable tension in a play or film in which the audience knows who the murderer is all the time, and from the very start they want to scream out to all the other characters in the plot, "Watch out for So-and-So! He's a killer!" There you have the real tenseness and an irresistible desire to know what happens, instead of a group of characters deployed in a human chess problem. For that reason I believe in giving the audience all the facts as early as possible.

—Alfred Hitchcock¹

A solved mystery is ultimately reassuring to readers, asserting the triumph of reason over instinct, of order over anarchy, whether in the tales of Sherlock Holmes or in the case histories of Sigmund Freud which bear such a striking and suspicious resemblance to them. That is why mystery is an invariable ingredient of popular narrative, whatever its form . . . .

—David Lodge²

[D]own these mean streets a man must go who is not himself mean, who is neither tarnished nor afraid. The detective in this kind of story must be such a man.

—Raymond Chandler³

I. Why Mysteries and Detective Stories?

In training sessions for federal habeas corpus attorneys exploring the use of storytelling in post-conviction litigation,⁴ Anthony Amsterdam observed:

The central task of postconviction counsel for a condemned inmate is to change a story that has been certified as The Truth. S/he has to deconstruct the story of people and events that was told in the appellate opinion affirming the inmate's conviction and sentence, break that story down into pieces, and recombine those pieces into a new story capable of capturing the imagination and opening the minds of judges and clemency officials and media people and even state's attorneys who think they already know the whole story. Every postconviction case starts with a story that these people believe has been officially written and officially stamped true and officially stamped closed, so that they don't have to think about it any more. Postconviction counsel's job is to CHANGE that story, to reconstruct the world in which that story happened, to force people who think they understand the story to THINK ABOUT IT IN A NEW WAY and to see enough new facts—facts that were not exposed before, or were not put into focus before—so that the old facts make a new kind of sense and turn into a quite DIFFERENT STORY.⁵

Implicit in this conceptualization is that post-conviction relief practice is primarily a narrative practice and a writing practice. Simply put, outcomes are often determined by the power of the truthful story told by the attorney representing a condemned inmate. That story must compel the attention of the reader and ultimately persuade the skeptical reader to act, rather than simply accept the ending that has already been determined about the already closed case. To do so, the advocate must enable or compel the reader to think about the facts in a new way and to see a different story that demands a different outcome. Facts are transformed into narrative (or story) with all its elements in play: (1) plot (a structure connecting and ordering events purposefully); (2) character (casting the players onto the stage at the appropriate times, assigning them the correct roles, and assuming characteristics that confirm to their functions as actors within the story); (3) setting (the sense of the place that may provide a compelling force determining the outcome of the plot); and (4) temporality—selecting the time-frame and pace that fits the telling of the story (where to begin and end the story by adjusting the speed of the story and allowing it to unfold purposefully, among other things). Post-conviction relief practice is primarily conducted based upon the submitted, written briefs, and the goal is often to obtain an evidentiary hearing. As a result, and because so much is at stake in this writing, post-conviction relief practice is a remarkable laboratory for understanding, critiquing, and teaching effective brief writing and narrative persuasion. one form (genre) of narrative may serve as a template for better understanding legal storytelling in post-conviction relief practice. The mystery—especially, the detective mystery—both enduring and popular in literature and, more recently, in film,⁶ is curiously relevant to the work of post-conviction relief practitioners. Analyses of these stories (about crimes and their explanation)—and, perhaps of greater importance, a better understanding of the form and internal narrative structure of their tellings—may suggest how to more effectively organize and present facts and law as a form of narrative persuasion and argumentation.⁷ As observed at the National Federal Habeas Corpus Seminar:

[Mysteries and] [d]etective stories are useful models for a kind of storytelling that can do this work [of persuasion] because the detective-story form [particularly] is specialized for creating a puzzle that cries out for solution and then leading the reader to believe that a belatedly emerging theory of events satisfactorily solves the puzzle—or for weaning the reader from a plausible but mistaken impression of events by leading him or her first to question that version and then to perceive and eventually accept another version as having a more satisfying ring of truth.⁸

Portions of this Article are adapted from an initial draft of a narrative primer suggested by Amsterdam's work and materials to assist attorneys representing condemned inmates. As a director of a legal writing program, I believe these tools will provide an invaluable supplement to the analytical skills and organizational principles traditionally taught in law school legal writing and reasoning courses. This Article is limited in its scope, however, as it provides a reading of the narratives in one brief. This brief was not chosen because it provides a model of how best to do this work or because of some uniqueness in its narrative dimensions such as time, plot, and character. Just the opposite; indeed, although it is carefully written and well-constructed, in many ways, it is not atypical in the story told or the form of the telling. It is a representative brief that tells a powerful yet recurring story. The theme of the story is, in a sense, about betrayal; it is a story that attempts to affirm the importance of the value of procedural justice.

It is extremely difficult to tell such a dark story effectively and persuasively: the petitioner is not a sympathetic character, and his acts are horrific. Yet somehow this brief must convince the reader that what matters is the manner in which the fate of the two men who perpetrated these crimes was determined. otherwise, it might be easy for the reader to turn away from the factual complexity of the story, the theme of the story, and the legal argument that the story ultimately implicates. A conceptual vocabulary drawn from narrative theory provides a better understanding of how the story works on the reader, and why, perhaps, the argument ultimately accomplished some, if not all, of its legal purposes.

This Article develops in three movements: first, the Article presents an annotated reading of the Statement of the Case in the petitioner's brief in Williams v. Taylor.⁹ This initial annotation identifies and foregrounds terms from a conceptual vocabulary that may be helpful for the construction of narratives in other cases (and other types of cases). Second, the Article identifies several relevant narrative concepts that may be helpful in analyzing narrative construction, particularly in post-conviction relief practice. Third, this terminology and conceptual vocabulary is then applied to the petitioner's brief in Williams. The Article briefly observes how the initial story presented in the statement of the case is transformed in a second telling presented within the argument and presents several illustrative excerpts from this section of the brief. The Article concludes with a note suggesting the importance of expanding the scope of traditional legal writing and skills programs to incorporate teaching narrative persuasion.

II. Analysis of the Statement of the Case in a Petitioner's Brief: Williams v. Taylor

There is only one question presented in the petitioner's brief—whether the petitioner was improperly denied an evidentiary hearing in a federal habeas court because the petitioner had failed to develop the factual basis of his claim in state court proceedings:

Whether 28 U.S.C. Sec. 2254(e)(2), which prohibits a federal habeas court from holding an evidentiary hearing only "if the applicant has failed to develop the factual basis of a claim in State Court proceedings," governs petitioner's claims where throughout the state proceedings, the state suppressed the relevant facts, denied petitioner's discovery requests, denied all investigative and expert resources to investigate, develop, and discover claims, and denied an evidentiary hearing?¹⁰

The single issue is clear and straightforward; seemingly, there is no subterfuge or strategy, only candor. Stylistically, the issue does not seem legally over-cooked, over-composed, or overtly manipulative. It links the petitioner's failure to develop the factual basis of his claim in state court with systematic state action: the issue enables the story and argument to cohere around the single theme of governmental betrayal. Thus, the issue foreshadows the subject of the story. Stylistically, when it comes to the factual component, there is a tone or whiff of what is perhaps irony, or perhaps an understated and barely detectable moral outrage that seems to characterize the voice of the writer, especially when characterizing the...