The Law in Denial by Beverley McLachlin

Be warned. In this post I discuss aspects of Beverley McLachlan’s legal mysteries, Full Disclosure and Denial that are spoilers in the sense that more information is provided than some potential readers of the books may want to have before reading them.

After reading McLachlan’s first legal mystery, Full Disclosure, I wrote a review and then a post about the meaning of full disclosure in the contexts of information from clients and the duty of the Crown in Canadian criminal prosecutions to fully disclose the Crown case to the defence. In particular, I focused on a peculiar trial ruling in the book. The judge found that the Crown had disclosed a statement of the accused to the defence through a comment of the Crown prosecutor’s wife to defence counsel at a party.

I said the trial judge was wrong and was surprised that the former Chief Justice of Canada, with extensive experience dealing with the principle of disclosure in criminal law, had her judge make such a bad decision.

When I read Denial I was surprised again because the conviction of Vincent Trusssardi in Full Disclosure had been successfully appealed by defence counsel, Jilly Truitt, on the ground that the statement had been wrongfully admitted because there had not been proper disclosure.

McLachlin had lured me in Full Disclosure into thinking she had made an inexplicable error in law when she was actually setting up an appeal to be revealed in the next book.

I am not sure how many readers beyond myself were aggrieved by the wrongful admission of evidence at trial but I am grateful McLachlin knew the decision was a major error at law.

In Denial there was also a significant error. A lawyer, when questioning a witness the lawyer has called cannot put leading questions on anything significant to the witness. Leading questions are for cross-examination.

In Denial a lawyer “suggested” to a witness he had called that a certain sum of money was being bequeathed to Dying with Dignity. It was an important issue. The answer was given before opposing counsel could complete an objection. In real life the trial judge would have been very upset with the questioning counsel. There was potential for a mistrial and certainly a ground of appeal.

I accept the leading question was undoubtedly more dramatic than properly asking the witness what was said about bequests.

There was a dramatic issue of admissibility of evidence concerning a witness that is important to the resolution for which I provide further warning.

I will skirt around the details but it was a Perry Mason moment in which a witness stands up in court to state the witness is retracting their evidence and confessing. In 49 years of practice I have never seen such a moment.

I was prompted to see what I could find in Canadian law. I found a case in which McLachlin discussed when the Crown could call evidence during or after the defence has presented evidence.

In R. v. G. (S.G.) in 1997 the Supreme Court of Canada was dealing with a case in which the accused, the mother of other defendants, was alleged to have incited three adolescents to kill another adolescent boy because he “ratted” to the police about either the illegal activities of herself or the other boys. There was no corroboration for the evidence of one of the killers who said she did incite them. The accused went on the witness stand to deny any incitement. After her evidence was given, a young woman who had given a statement that she was in the basement came forward and implicated the accused. She was allowed to testify and the accused was convicted.

For good reason the Crown is not to be allowed to call evidence during or after the defence case. It is fundamental to justice that the Crown cannot split its case. As inevitable in law there is an exception. At common law there was a colourful evocative latin phrase on when the Crown could produce such evidence. The situation would have to be ex improviso - “if some matter arose which no human ingenuity could have foreseen”.

The majority at the Supreme Court ruled the evidence should not have been admitted. I agree. McLachlin disagreed. She said the trial judge was correct to have admitted the evidence.

I believe there will be at least another Truitt book. While I know the trial judge was wrong in how she admitted the late evidence in Denial I do not expect an appeal. Unlike Full Disclosure, what happened after the trial ended in Denial would preclude an appeal. Still, with all the twists McLachlin tossed into Denial, I would not be surprised if there is an unexpected consequence in the next Truitt book related to Denial.

****

McLachlin, Beverley - (2018) - Full Disclosure and Full Disclosure Within Full Disclosure; (2024) - Denial

Denial by Beverley McLachlin

(24. - 1207.) Denial by Beverley McLachlin - “The Fixer” is vexed and desperate in Vancouver. Joseph Quentin is famous for “fixing the messes the rich and powerful get themselves into”. What he cannot fix is the murder charge against his wife, Vera, for killing her mother who was suffering from incurable cancer. Vera has driven off two prominent defence counsel and refused to agree to the plea bargain Joseph had arranged where she would have served less than a year in jail. Vera will not plead guilty. The twice postponed trial is 3 weeks and 5 days away.

Quentin asks, then pleads with Jilly Truitt to take the case. Truitt wants to decline but is touched when she realizes Quentin is honouring the vows of his marriage. He committed to caring for Vera 25 years ago and will stay with her to the end. 

Truitt decides to take the case. I knew she would, even without Quentin’s commitment to his wife, for once a litigator meets a potential client protestations of busyness and not wanting to take on a losing case fade away. If a lawyer genuinely does not want a case the lawyer does not meet the proposed client.

The facts are challenging. Vera, long depressed, abuses both powerful drugs and wine. Her mother, Olivia Stanton, is on multiple medications. Vera is spending the night with her mother and administering medication to her. While ill her mother does not qualify for MAIDS (Medical Assistance In Dying). In the morning Olivia is dead.

Her death was caused by a fatal injection of morphine.

Morphine and needles were stored upstairs but when Vera takes the police the morphine kit is no longer there.

Vera swears someone else secretly entered the house and killed her mother. The “Mysterious Stranger Defence” is one of the hardest defences in the world of criminal defence.

Truitt muses on guilty clients claiming innocence:

In the end, it’s usually self-delusion, an inability to accept what they have done, the brain playing tricks - denial.

After disclosure arrives in a banker’s box the defence lawyers and their investigator read and read and read. 

There is no sign of forced entry. All keys to the house are accounted for by the police. There is no physical evidence anyone was in the house that night but Vera and her mother.

Truitt knows she needs more than her client protesting innocence.

The murder takes place in Kerrisdale, one of Vancouver’s wealthiest neighbourhoods.

Olivia’s 70 year old house and lot have been sold for $4.5 million. The house is being demolished by the buyer. Olivia had lived there for 52 years. 

There is distance between Vera and Joe and Nicholas. Joe wants to believe her but he negotiated the plea deal not wanting her to spend 10 years in prison. A practical man but not accepting of her statement of innocence. 

Nicholas, a pianist, in a jazz band is also a reluctant law school attendee. 

Finally, a legal mystery where the lawyer is struggling to prepare for a major trial while constantly dealing with other cases. In real life litigators cannot simply put on hold all their other files while getting ready for an upcoming trial. Only in fiction does a lawyer have the time to just deal with the big case.

Michael Connelly’s lawyer, Mickey Haller, used to juggle cases when he was truly the Lincoln Lawyer but he has evolved into a regular fictional lawyer with all his time for the case featured in a book.

My credibility was being stretched when Truitt has no defence planned 3 days before trial. Be the defence of denial strong or weak it is Vera’s defence.

They know they must offer at least a name of a potential alternative to Vera. Of the options only Nicholas is possible but Vera forbids Truitt raising his name.

Truitt attempts again a relationship with former lover Mike St. John. Each believes she/he is ready for a commitment to the other.

The cross-examinations by Truitt and the prosecutor, Cy Vance, are elegant, even brilliant. I could see the lawyer, the witness and the accused. As I find in an actual trial, my focus was upon the witness and the lawyer. Nothing else matters during evidence.

McLachlin is improving as a fiction author. She moves the plot briskly while retaining an eye for convincing detail.

McLachlin adds a brilliant ruthless twist I never saw coming. 

Then there are more developments. I was suddenly in a Jeffery Deaver plot. I have mixed emotions about the ending. It was compelling but incredible. 

I hope McLachlin continues to write legal mysteries. She can be the successor on the West Coast to William Deverell but not yet as Deverell has a new legal mystery being published this month.

****

McLachlin, Beverley - (2018) - Full Disclosure and Full Disclosure Within Full Disclosure

Death of an Englishman by Magdalen Nabb

(22. - 1205.) Death of an Englishman by Magdalen Nabb (1981) - Marshal Guaranaccia is summoned from his sickbed to the apartment of A. Langley- Smythe. It is just before Christmas and he is worried he will be sick with the flu in Florence instead of being with his family in Sicily. Langley-Smythe, a man about 60, is dead, shot in the back.

The Marshal continues to suffer from an eye condition. In sunshine he “weeps”. Black sunglasses help.

The Marshal, while “large and fat”, is a precise man. He “drank half a litre of red every day with his evening meal, never more not less, and a drop of vinsanto on Sundays”.

Chief Inspector Lowestoft and Inspector Jeffreys are dispatched by New Scotland Yard to Florence to aid in the investigation and prevent unpleasant publicity for the victim’s sister’s husband is a man “of some influence”.

With City hotels filled up the pair are staying with the Vicar of the English church.

With the Marshal driven to bed the investigation continues with the Captain and Carabiniere Bacci. The well-to-do residents of the Englishman’s building have neither seen nor heard anything except for a young girl, Giovanna, who insists she heard two loud bangs at 2:45 in the morning with the first being a door bang and the second a gun bang. The huge outside doors also close with a loud bang.

Miss White, an English lady in her 60’s, is devoted to a dead English poet, Walter Savage Landor. She does not speak Italian and her swiftly spoken English stream of consciousness befuddles the Captain and Carabiniere Bacci.

The English library of Florence has an unpleasant combination of mould and damp. Its patrons, which include the Englishman, are eccentric.

The police determine that the Englishman ate alone every night at his table in the modestly priced Casalinga restaurant. He would have his 1-2 courses, drink quite a bit of wine and read his newspaper. He was always alone.

The investigation turns to antiquities and the pace accelerates.

The English Chief Inspector clearly thinks the English are superior to Italians. The Captain has equal disdain for the British visitors. 

During the night the Marshal’s fever breaks and he joins the investigation after attending the funeral of the wife of the cleaner of the building where the Englishman had his apartment.

Without having seen and interviewed anyone it is the Marshal who solves the case having reflected on the person everyone has overlooked. As in the best mysteries his insights were open to all but I never deduced the killer. 

The motive is as sad as any I have read in crime fiction and all too believable.

Nabb is great at building interesting characters and giving them convincing voices. Her Florence is a place of culture whose streets buzz with Christmas shopping and anticipation. The mystery is deftly done. And it takes but 172 pages.

I regretted that the flu laid low the Marshal for over half the book. I will need to read another to fully appreciate him.