In my previous post I provided a general review of the legal mystery, The Color of Law by Mark Gimenez. In this post I will be discussing A. Scott Feeney’s representation of Shawanda Jones against murder charges. To have that discussion I may provide more information than readers who have not read the book may want and even spoilers. You are warned.
Scott is faced with a major challenge in framing a defence. Shawanda admits she was with the murder victim, Clark McCall, the night he was killed and that they had a physical confrontation and that her gun was used to kill him. At the same time she insists she did not kill him.
Scott proceeds from an assumption that Shawanda is lying about not killing McCall but that she was acting in self-defence. His client is resolute. She did not kill McCall.
Worried a jury will not believe her and she will be convicted and executed he rightly explores with her and the prosecutor a guilty plea with a lesser penalty.
Ted DiPaulo, defence counsel, in The Guilty Plea by Robert Rosenberg equally looked at a guilty plea for his client, Samantha Wyler, accused of murdering her husband, Terry Wyler. She even brings to his office the bloody knife used to kill her husband.
When a trial risks a far worse sentence than a guilty plea every defence lawyer has discussions with the client on what they could admit to reach a deal.
In the end neither Scott nor Ted can make a deal as each woman refuses to admit killing. A lawyer, even when convinced his client is guilty, is bound to proceed with a trial when his/her client will not admit guilt. They are entitled to their day in court.
While most of The Color of Law deals with the problems for Scott arising from his representation of Shawanda he gradually prepares for trial.
What is barely addressed in the plot before trial is who actually killed McCall. If there is strong evidence against the accused who is maintaining innocence who was the real killer? The presumption of innocence is useful but judges and juries want to know who is the potential real killer if it is not the accused.
The alternative would not have been needed as much if she had denied being at the murder scene or her gun was not there. With those circumstances the defence, if it does not have an alternative, can still credibly argue the prosecution has not proven the accused was the killer. Famously O.J. Simpson did not need an alternative as he denied being at the scene of the murder.
I knew from early on in the book that Scott would have to put up an alternative to Shawanda killing McCall but none is developed during preparation for trial. My credibility was stretched. What stretched it to the breaking point, but not further, was the trial in which Scott develops on the fly an alternative with the aid of evidence delivered to him during the trial.
No real life competent lawyer would be working out a theory of the defence in the midst of a trial. There are shifts in strategy in trials as unexpected evidence is heard but it was unbelievable to create a defence in The Color of Law during trial that should have been ready long before trial.
At one point Scott goes fishing for evidence from a hostile witness. A death penalty trial is the worst time for a lawyer to go on a fishing expedition. The approach may have been used to create a defence worthy of Hollywood but it strained belief.
Grisham, a great legal mystery writer, has trials in his books but there is no ad hoc advocacy. Surprises occur and must be dealt with but there is never a fishing expedition.
Scott’s hero (and Gimenez’s hero) is Atticus Finch from To Sing a Mockingbird. Both Scott and his creator would have been well advised to have remembered how Atticus carefully prepared for the defence of Tom Robinson and skillfully carried out his strategy during the trial.
Gimenez could have had as much drama with the development of the alternative killer prior to trial and unfolding the story at trial. Making the defence work in a trial is just as dramatic as coming across it during the trial.
I want to read a further book in the series to see if Gimenez becomes more realistic in Scott’s representation of clients.
****Gimenez, Mark - (2017) - The Color of Law