Storytelling for Lawyers (32 page)

Then the brief makes an interesting strategic move; it does not attempt to describe Miranda's environment. The description of what happened to Miranda is omitted altogether. Miranda simply disappears into a place repeatedly referred to in the brief as “Interrogation Room 2.” When Miranda emerges, the police have his written confession in hand. The confession is admitted into evidence over Miranda's objection and he is convicted of the charges against him. The gap in the facts—what happens to Miranda when he disappears—becomes the focus of the legal argument that follows.

Here is the opening paragraph of Miranda's argument:

When Miranda walked out of Interrogation Room Number 2 on March 13, 1963, his life for all practical purposes was over. Whatever happened later was inevitable; the die had been cast in that room at the time. There was no duress, no brutality. Yet when Miranda finished his conversation with Officers Cooley and Young, only the ceremonies of the law remained; in any realistic sense, his case was done. We have here the clearest possible example of Justice Douglas' observation, “what takes place in the secret confines of the police station may be more critical than what takes place at the trial.”
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What is going on here? The brief calls the reader's attention to what is not there rather than what is. Akin, in some ways, to Didion's attempt to suggest an ineffable quality of Los Angeles in the time of Manson, the Miranda brief is equally poetical in its language, inviting the reader to fill in what is left undescribed. The reader is compelled to speculate on what occurred in Interrogation Room 2. The legal argument is not just about precedent and
stare decisis;
it evokes more literary themes. It shows that what goes unseen may have devastating and far-reaching consequences that can never be erased, controlled, altered, or corrected. It is about the power of the forces of fate, chance, and secrecy. In the language of the petitioner's brief, once the “die had been cast,” “whatever happened later was inevitable”; when “Miranda walked out of Interrogation Room Number 2 … his life for all practical purposes was over.”

In both literary and legal storytelling, the setting itself dictates how the audience interprets the story. Whether the place is left shrouded in mystery, as in Miranda's brief, or is developed through the accretion of carefully selected physical details, as in Reck's brief, the strategic choice of place as depicted implicates or determines the outcome of the story.

In some stories, the forces of opposition aligned against the protagonist are part of an environment that shapes the behavior of the characters. The setting matches the story, suggests crucial themes, and develops as the story progresses. For example, in Gerry Spence's
Silkwood
argument the depictions of rural and innocent townspeople and the invading big city corporate outlaws are set on the mythic and bucolic western landscape. There are intimations of plutonium from the Kerr-McGee plant's fuel rods escaping into the environment and poisoning it; the greedy big city interlopers despoil the land and contaminate the rural and innocent young workers with cancer. In Donovan's argument on behalf of Louie Failla there is a different type of environment. Mobsters compete over valuable suburban Connecticut turf in the 1990s, when new laws legalizing gambling made the land invaluable to competing factions of the Patriarca crime family. But what makes the environment of the story immediately recognizable to the jury, and Donovan's narrative persuasive, is not its literal landscape. It is how Donovan locates the telling
within the context of popular and familiar mob stories. Some of these are “old school” mob stories about tenderhearted tough guys, about mob dolls and outlaws willing to sacrifice themselves to preserve their families.
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These environments are wedded to more contemporary narrative environments, filled with double-talking wise guys and popular cultural references of the day that could have been borrowed from David Mamet
¹⁷
and Quentin Tarantino.
¹⁸

In some legal stories, the setting or environment also shapes the narrative. In other stories, the setting and environment is itself the force of antagonism or villainy that initiates the plot and ultimately determines the narrative outcome. In postconviction relief practice and death penalty work, we find mitigation stories, where the defendant's claim is based on his childhood environment or some later traumatic events in his life story.

Here are several illustrations of stories told primarily about place; the theme of the story is typically about the power of the environment and how it overwhelms or directs the will of the protagonist. The first is taken from Kathryn Harrison's real-life crime story
While They Slept.
¹⁹
In this story, Billy Frank Gilley murdered his two sleeping parents. When he was surprised by his younger sister, he murdered her too. In the book, Harrison acts as a crime investigator, retelling the mitigation story, focusing on the physical and psychological abuse suffered by Billy and his surviving sister Jody at the hands of their parents. The evil of the environment depicted by Harrison is pervasive, and envelops the young Billy so that seemingly there is no way out for him, other than retreating into fantasy and then striking back at his parents violently. How does Harrison tell this story to evoke sympathy for Billy and transform environment into a villain? She moves from place to place. The first stop on Billy's dark journey is the barn of the house on Ross Lane in Medford, Oregon. In these paragraphs, the violence escalates as Billy is abused physically by his father, Bill, and psychologically by his mother, Linda:

Whether or not Bill drank surreptitiously in the barn, the structure's relative privacy and its distance from the house made it an ideal place for him to beat his son. The house on Dyer Road [where the family lived previously] was small, sometimes claustrophobic, but on Ross Lane Linda could make her decision that a punishment was required from inside the house while Bill carried it out remotely, allowing Linda to blind herself to the viciousness of what Bill could claim she demanded. This wasn't an original means of enabling cruelty, of course. Few despots bear witness to the tortures by which they maintain
control, and even though what Jody would later call “atrocities” were those of a single troubled family rather than a corrupt social order, it was a college course on literature of the Holocaust that gave Jody the language she needed to speak about what her parents had done to her and her brother, abuse that went beyond corporal punishment and that she believes was meant to break their spirits and cripple them emotionally so that they would never be able to escape.

In contrast to the incidental cuffs and slaps across the face that both Linda and Bill applied reflexively whenever their children talked back or annoyed them in some way, a real whipping was, Jody says, “threatened, then announced, and only after a period of intensifying dread, administered.” But first came “hours and hours of lecturing,” marathon harangues during which Billy rarely spoke. Only once does Jody remember her brother breaking his silence, by putting his hands over his ears and emitting a long, awful, and unnerving squeal, like a trapped animal that had abruptly arrived at consciousness to find itself facing immediate slaughter, a noise that perhaps surprised Billy as much as it did the rest of the family. As Billy knew, nothing he could say would prevent or lessen what was to come; defending himself might even provoke an extra lick or two. In the barn, whippings evolved from what they had been inside the house—fifteen to thirty lashes with a leather belt on bared skin—to a more formal procedure, for which
flogging
seems the more accurate term.

“My father whipped me at least once a month,” Billy says in his affidavit. “I would get a whipping for not cleaning my room, or for doing my chores wrong, or getting in trouble at school, running in the house, or forgetting to feed the chickens. He almost always tied my wrists to a wall pole or a tractor tire to keep me from moving around.”

It hadn't taken many beatings for Billy to figure out that a glancing blow did less damage than a direct one. Earlier punishments, back on Dyer Road, had taught him that if he flinched or writhed inadvertently, the belt didn't make solid contact when it hit his moving legs or buttocks and hurt him less. With the benefit of this experience, Billy no longer remained in place, bent over his bed with his pants off. Instead, he tells me, he'd drop to the ground and “roll around the way you're supposed to do if your clothes are on fire.” Predictably, this further enraged his father and made him that much more vindictive. When the whippings were removed to the barn, Bill welcomed this
new privacy as an opportunity to tie his son, standing, to a stationary object, so that he could be sure his target stayed put.

“How did he do that?” I ask Billy, remembering a conversation with Jody in which she wondered aloud if her brother submitted to their father meekly, if he offered his wrists to be tied. But Billy misconstrues my meaning.

“With a tree line,” he says. “You know, the nylon ropes we used for climbing.”

“No, I mean, did you …” I leave the question unfinished, feeling that to insist on an answer would be to participate in a past punishment by reawakening the humiliation of it. Besides, if Billy walked out to the barn where his father was waiting for him, why wouldn't he stand still when tied? Jody's question, I decide, isn't literal so much as a mark of her inability to imagine offering her body up for abuse. Her essence remained unbroken and defended, hidden deep within herself, one of the coping mechanisms that would allow her to navigate the night of the murders.
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The sense of place Harrison artfully constructs is a place of no escape, just as Reck's handball court is a place of no rest and Miranda's Interrogation Room 2 is a place where the forces of mystery, chance, and fate intersect dangerously.

First, there is an ominous recognition of one specific place and the focus on what occurs there. That is, this set piece does not begin with the practices of the villainous and brutal father but rather focuses on “the barn” in the Gilleys' new house on Ross Lane. The privacy and distance from the house make it “an ideal place for him [Billy's father] to beat his son.” There is the meticulous use of selected detail, rather than the layering and accretion of factual physical detail.

The themes in a mitigation story are typically the inevitability of the events, and the progression of terror that unfolds in the dark place depicted in the story. Here, the theme is about constraint on movement and the impossibility of escape (just as we find in the defendants' briefs typically submitted in battered women syndrome, spousal abuse, and self-defense cases). Harrison moves from the events themselves (and the description of the setting) to comment on the events, articulating the theme that undergirds and interconnects the pieces of her story. Just as Miranda uses Justice Douglas's comments to shed light on his predicament, Harrison employs the comments and the perspective of a third person, the surviving sister Jody, to attempt to understand what is happening to her brother.

As in the depiction of Reck's coerced confession or Uncle Ambrose's electroshock treatments, there is a sense of a journey from place to place, rather than merely depictions of a sequence of brutal beatings. The second paragraph begins with description of the “cuffs and slaps across the face” that both Linda and Bill apply “reflexively” whenever their children talk back or annoy them. But this is merely prelude; there is the unfolding terror of “a real whipping” that awaits. Here, narrative movement slows down. First, Jody observes abstractedly that, “a real whipping” is “threatened, then announced, and only after a period of intensifying dread, administered.” Harrison provides a vivid image, from Jody's testimony, of Billy with his hands over his ears squealing like a trapped animal at what is about to occur. Jody then observes the escalation of the beatings, from fifteen to thirty lashes with a leather belt inside the house to “a more formal procedure, for which
flogging
seems the more accurate term.”

And then it is time to move inside the barn and to shift perspectives, from Jody back to Billy, the victim of the beatings. Billy, although less articulate than Jody, describes the beatings and adds details that makes the descriptions vivid and reconnects to the theme of constraint on movement and the impossibility of escape. But it is Harrison who is in control of what happens in this place: she edits the testimony, and shapes the environment to suit her narrative purposes. Compelling details and images come from Billy's own words, but it is Harrison who chooses to include them where they affirm her narrative theme; they are the product of Harrison's editing and aesthetic judgment describing Billy's experiences.

This detailing serves as a segue, several pages later, to a description of violence in another place. The narrative strategy is similar to the previous set piece: this segment is constructed by Harrison with quotes from an affidavit taken by Billy's appellate attorney from a tree surgeon named Henry Linebaugh, who worked with Bill and Billy. The segment is supplemented with Billy's own commentary on Linebaugh's observations:

The affidavit describes summer days so hot, Linebaugh said, “you couldn't even breathe up on the trees,” with Billy left literally out on a limb, without water, for hours. Linebaugh's memory was that he found the teenage Billy alone and injured on a number of occasions, bleeding enough to require bandaging, with no first aid kit on the site, no other worker to administer it.

“If my dad actually saw whatever it was,” Billy says when I ask about his getting hurt, “he'd sorta sneer and ask, ‘You don't need a
Band-Aid, do you?' in this real sarcastic way.” Billy leans forward over the table between us to show me a scar on his wrist. “It's from a chain saw,” he explains, and he tells me he got it when working alongside an untrained hire who cut a branch improperly so that it broke and hit the still-running saw, which in turn hit Billy's wrist. “It was bleeding enough to, you know, spurt a little, and the guy, he says I should maybe go to the hospital for stitches, but my dad takes a look, and, you know, it's the same thing, ‘You don't
need
to go to the hospital, do you?' So I say no.” Billy shrugs. “I took a break, kept the hand up over my head for ten minutes, and tied a rag around my wrist. Then it was back to work.”