In real life and the best legal fiction judges and jurors want to know “why” as they make decisions in trials. How witnesses give evidence is important but at the heart of cases is “why”.
In John Grisham’s most recent book, Sycamore Row, Seth Hubbard, a white businessman in Ford County Mississippi, leaves 90% of his estate to his black housekeeper, Lettie Lang, and excludes his children from the will. Jake Brigance, instructed by a letter from Hubbard, to defend the will can understand from the poor relationships between Hubbard and his children “why” he would limit their inheritance or not give them money but “why” would he leave millions to Lettie. No matter what evidence exists to support Hubbard had the mental capacity to make the will unless Brigance can explain “why” the bequest was made to Lang it is unlikely a jury will find the will valid.
In William Deverell’s book, A Trial of Passion, a university student, Kimberly Martin, wearing nothing but a tie and adorned with lipstick designs on her body, including red circled nipples, arrives at the home of a retired Anglican bishop claiming she has been raped by the bishop's next door neighbour, law professor Jonathan O’Donnell. Defence counsel, Arthur Beauchamp, can challenge the reliability of Martin’s memory but ultimately must face “why” she would not tell the truth about her relationship with O’Donnell and is falsely claiming rape. While the Crown must always prove guilt beyond reasonable doubt it is hard to raise enough doubt without being able to argue “why” a complainant in an alleged sexual assault is not credible.
Sometimes a defence counsel must deal with the “why” of a client’s actions. In Robert Rotenberg’s book, The Guilty Plea, Samantha Wyler brings to the office of defence lawyer, Ted DiPaulo, the bloody knife used to kill her husband. While DiPaulo finds a way to deliver the knife to the police without identifying the source as his client he must deal with the issue of “why” she had the knife if she is not the killer to have a credible defence to the murder charge.
Another example takes place in Innocence by Scott Turow. Rusty Sabich wakes up one morning to find his wife, Barbara, dead beside him. She has died in her sleep during the night. When he sits with her for 23 hours before calling his son he creates a “why” with the length of time that must be addressed in the trial. While being beside his dead wife for so long is not evidence that he killed her it is a “why” that cannot be ignored by defence lawyer, Sandy Stern.
Whenever a confession is presented in evidence defence counsel must address “why” it is not the truth. In The Confession, another book by Grisham, Donte Drumm, a young black man has confessed to murder in Texas. The jury is not convinced the confession was wrongfully obtained. Drumm is convicted and sentenced to die.
Though I do not think the demonstration should have had the impact it did, an important moment for the jury in O.J. Simpson’s murder trial came when the gloves the prosecution alleged he wore to commit the murders did not fit him. The prosecution was unable to explain adequately to the jury “why” the gloves did not fit O.J.
In providing an answer to “why” lawyers cannot merely provide an explanation. A real life example comes from Diefenbaker for the Defence by Garrett Wilson and Kevin Wilson. On Christmas Day of 1929 Antena Kropa was shot in her home in Humboldt, Saskatchewan. Her husband claimed that a drunk Alex Wysochan, a lover of Antena, was threatening them. As the husband fled the house through a window to get help he said he heard 3 shots fired. When the authorities arrived Antena was dead and a wounded Alex was lying beside her. Alex was convicted of murder when John Diefenbaker, for all his legal skills, was unable to logically explain “why” to the jury, in the circumstances outlined, they should believe Antena’s husband had shot her instead of Alex.
The problem for Diefenbaker was one of Solomon’s laws. While the Solomon and Lord books of Paul Levine are best known for their humour the laws of Steve Solomon about the practice of law are real as much as funny. From The Deep Blue Alibi:
4. You can sell one improbable event to a jury. A second “improb” is strictly no sale, and a third sends your client straight to prison.
Yet in real life and in fiction people do not always act and reason logically. The greatest challenges in court with “why” come when you believe your client but the truth to the question of “why” is not rational.