Writing a Credible Trial

Writers of legal mysteries featuring trials, especially if the defence is to win, always face the challenge of credible evidence. The evidence must be strong enough to threaten conviction but not so overwhelming as to make a defence unbelievable. At the same time there cannot be too much evidence favouring the defence for the Crown (Canada) or the State (United States) would not proceed with weak charges. In Canada prosecutors should only proceed to trial if there is a reasonable likelihood of conviction.

The challenge was taken up by two masters of legal mysteries - John Grisham and Michael Connelly - in the last two books I have read. In this post I will look at the approaches taken by them in A Time for Mercy and The Law of Innocence respectively. There will be spoilers in the post but not of the endings of the books.

Grisham starts A Time for Mercy by eliminating the most basic defence. Drew Gamble shoots Stewart Kofer in the head while he was passed out drunk. Eliminating any chance for the defence to argue Drew did not kille Kofer puts the defence at a major disadvantage.

By contrast Mickey Haller, in The Law of Innocence, from the opening pages vehemently denies he has killed Sam Scales, who has spent his adult life running charitable scams, and then driven around Los Angeles with Scales in the trunk of his Lincoln Town car.

Grisham swiftly starts building a defence by establishing that Drew was justly terrified that Kofer, who has chronically abused Drew, his sister and his mother, is about to kill him and his sister. He wrongly believes his unconscious mother, beaten by Kofer, is already dead.

For Connelly there is the challenge of giving Haller a realistic motive  for murder. It was the major weakness in the plot. Haller had given up defending Scales, weary of defending a man who preyed on human vulnerability in times of disaster. Facing a situation with which I am well familiar Haller sues Scales for unpaid legal fees. He gains judgment but it is uncollectable from the slippery con man. It is barely credible that Haller would kill Scales because of an unpaid bill. There may be lawyers in private practice who have no unpaid accounts but I know none. Getting stiffed is frustrating but no more than an irritation. 

Connelly’s motive became far fetched when a letter from Haller to Scales threatening action if the account was not paid was used to justify a claim of special circumstances that would send Haller to jail for the rest of his life if convicted. The letter was slender evidence for lawyers routinely and constantly use the word “action” as a contraction for “court action”.

It appeared the State, realizing there was no personal animus from Haller against Scales, decided to argue there was a financial advantage to Haller killing Scales. If Scales were dead Haller could pursue his estate for the unpaid fees. The fundamental flaw is that there was no prospect of collection from the estate of Scales. The elusive Scales had a long history of aliases and fake identities. It was impossible to know how many false names were unknown. It would not be worth trying to track down any money hidden by the scammer. Even if some money was found the claims of the many victims of Scales’ scams would far exceed Haller’s judgment for legal fees.

The plot would have been more credible on motive if Haller had engaged in major arguments with Scales. The State could argue the hot headed Haller might have acted impulsively and violently if he had encountered Scales and been blown off by Scales about the money owed to Haller.

Another option would have Scales complaining to the Bar Association about Haller. All sorts of anger would erupt in Haller over an unjustified or false accusation that could threaten his licence to practise law.

Each author picked a very difficult defence.

Jake Brigance, defending Drew, argued the killing was justified. It is not actually a legal defence to argue Kofer was a man who deserved killing. To his credit Grisham does not make the defence easier by having Drew’s sister tell him that she was sexually abused by Kofer. The justification is based on the extensive and escalating physical and emotional abuse by Kofer. The disgusting details are such that a jury might refuse to convict.

As outlined in my review of the book Connelly chose the most difficult of defences - finding the actual killer to establish Haller was not guilty. It means conducting the investigation the police failed to do after the murder. 

The strength of the plot is in that investigation handled by Haller’s veteran personal investigator, Cisco, and Haller’s half-brother, the legendary Harry Bosch. They go after the unexplored threads left by the police.

Both authors have a surprise development at trial. The unexpected in each case involves the question of disclosure of the case. Where California requires extensive disclosure Mississippi prefers a minimalist approach. The defence is at a continual disadvantage in Mississippi.

Grisham credibly turns the lack of disclosure requirement into bringing forward a witness whose physical condition is as important as the evidence. The condition is not revealed until the witness appears to give evidence.

Clever as always, Connelly describes these trial ambushes as October Surprises. While the State brings forward a damaging surprise Haller has a better surprise with a document not disclosed until cross-examination. He is unconcerned that the prosecutor is furious and the judge angry.

Grisham and Connelly create compelling trials. Grisham’s trial is better as Drew has the more believable reason to kill.