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A new defense approach to storytelling changes capital cases in Texas

Photo of Jill Patterson by Justin Clemons

A STUDY AND A THEORY

A COUNTERWEIGHT FOR THE DA

FLIP THE NARRATIVE

TELLER OF TALES





Photo of Jill Patterson by Justin Clemons



VALUED EFFORTS

Sidebar Who's Got the Narrative?



Hiring a nonfiction writer to craft a narrative is a new idea. In most courtrooms it's the lawyer who has the job of creating a favorable tale from the jumble and mass of facts, and persuading a decision-maker that this or that fact or piece of evidence is what the judge or jury wants to focus on.



Philip Meyer—a Vermont Law School professor, author of Storytelling for Lawyers and ABA Journal contributor—says the good news is that a lawyer doesn't have to be a professional writer to create compelling narratives. "It's something that can be taught," Meyer says. "Attorneys have told me it's extremely useful for them to think in terms of plot, character, style and setting."



"When we're talking about narratives and mitigation, we're not talking about invented stories but factually meticulous stories—and ones grounded in evidence striving for truth. Something that creates empathy for the character and an understanding of something in the environment that pushed him or caused him to act in the way he did."



In a wider context, compelling story-telling, Meyer says, is about "how to depict compelling characters you can have empathy with and make them understandable."



Meyer doesn't think someone who writes a brief can't be a good storyteller, though many briefs—like judicial opinions—do not make for riveting reading.



"Some briefs are boring, but some briefs are good," he argues. "Effective lawyers intuitively are good storytellers. Not everybody can be a great novelist, but if you learn something about persuasion and effective storytelling, good lawyers have that ability. As Bob Seger said: 'What to leave in, what to leave out.' That's something that can be taught and learned."



Sean O'Brien, an associate law professor at the University of Missouri at Kansas City, says law schools are becoming more aware of the importance of what messages reach the judge and jury.



"In the death penalty arena, the power of narrative is in dealing with life-and-death issues," O'Brien says. "The fact is, there's already a narrative—there's a homicide and an innocent victim and a perpetrator who needs to be brought to justice. Prosecutors are trained to motivate juries to impose a sentence of death."



"Most of us have a natural reluctance to cause the death of a person," O'Brien says, "and prosecutors need to overcome this obstacle so they appeal to the jury's ability to identify with the family of the victim—using narrative techniques to do that, often rebuilding the last day of the victim's life, and that's a powerful narrative.



"The defense lawyer has to convince the jury that death is too harsh for this person, and you can't do that by showing the client's IQ chart or taking a brain scan of the client. That's not persuasive because it doesn't appeal to the jury's sense of humanity or justice."



O'Brien says that when training lawyers, he compares the lawyer to a stand-up comic: "Something is funny or it isn't. And it's not in the explanation of it, but in the telling of it. Mitigation is the same way."

"The first time he murdered was to get a car," Jill Patterson says, "and the second time he murdered was also to get a car."At age 6 his mother didn't have a car, and they were doing illegal things in the house. So when he was 6 she said she was taking the defendant to a birthday party, and instead she drove him to an orphanage."Days before the second murder, the defendant wrote multiple entries in his diary about longing for a car: If only he had an automobile, he could travel to Montana and be a rancher, to Florida and grow oranges, to California and catch a boat somewhere."You need a car to possess a life."Patterson, a professor in the creative writing program at Texas Tech University, is describing a criminal defendant in a capital case and the nexus—the link between past experience and recent, tragic events—that underlies the narrative she wrote about him.Patterson wrote this for Texas' Regional Public Defender for Capital Cases Office, known as the RPDO, as part of a radical approach to death penalty cases that has helped reduce the number of executions in a state that still leads the nation in that category. Even as Patterson works on other cases, she is helping to expand that program, seeking other volunteer writers to research, interview and assemble life stories that can mean life or death for the accused.Patterson recalls the event that got her involved in writing narratives and connected her with the RPDO."I found out a business professor was establishing this office of 'narrative management' at Texas Tech, and he translated it to a team of criminal defense attorneys. I was invited to a meeting and maybe it was just curiosity at first, but I felt like I had to go," Patterson says. "So I met Hans Hansen, who was involved in the nexus between narrative management and criminal justice. The idea drew me in."Hans Hansen isn't a lawyer and had no interest in death penalty cases back in 2007. Hansen is a management professor at Texas Tech University in Lubbock who was invited to help with the organizational design for the new public defender's office."For me, it was a research setting, so while they were getting help, I was conducting a study," Hansen says. He believes in narrative theory, which might be explained as "life (and organization) is a story."In a 2011 article, "Managing to Beat Death: the Narrative Construction Process," published in the Journal of Organizational Change Management, Hansen explained narrative theory."We all story our lives," Hansen wrote. "We make sense of events by constructing narratives in an attempt to reconcile explanation and experience—to help us pin down and organize our experience."Any coherence humans gain from the constant stream of experience, Hansen argues, is something our minds create in the wake of those experiences. "It is our doing. We abstract from experience to build narratives that help us to rein in that experience, put an order to it, and assign meaning—capturing what we can as it rushes by us.""The postmodern view of narrative," he writes, "is that individuals and organizations are nothing more than the stories that constitute them."An accumulation of an organization's stories becomes its culture. "It's the little old lady at the guard desk who wouldn't let the CEO in because he didn't have a badge," Hansen says. "That tells you that at that company, what is rewarded is following the rules."When Hansen was approached by the Regional Public Defender for Capital Cases Office, he was charged with turning "lone wolf" defense attorneys into a team."The RPDO is the first of its kind in the country," Hansen says. "You have to be particularly qualified to do capital cases in Texas; and generally speaking, nobody is interested in capital defense work, so it attracts the very worst and the very best. If times are good, lawyers won't take the case, as it figures to be 'three years of my life for $25,000.' "The RPDO was contemplated as an "anti-DA's office," Hansen says."The office was opened in 2007 and took its first case in early 2008," he recalls. "What I would do for the team was write a collective narrative about how they're going to defend versus the death penalty. So I met with a who's who of death penalty law in Texas. Our goal was to rewrite the way the death penalty is defended. We leveraged a hundred years of experiences, and then we set out to write a new story."The death penalty story has been changing, and it appears close to expiration in some parts of the country. In 2000, there were 85 executions in the U.S., according to the Death Penalty Information Center. By 2007, executions had dropped to 42, to 39 in 2013 and to 35 last year.In Texas, however, a conviction of first-degree murder is still likely to bring a death sentence. The state has accounted for 520 of the nation's 1,400 executions since 1976, according to the Death Penalty Information Center. But even in Texas, executions have declined, from a high of 40 in 2000 to 10 in 2014, the center reports. A driver in the reduction of the number of Texas executions is the RPDO. Established by the state in 2007, the office is administered in Lubbock and staffed by attorneys, mitigators and investigators specializing in capital defense. The RPDO handles cases in all but the state's eight largest counties.While looking to write new scripts for death penalty defendants, Hansen and those working with him had to account for narratives already in play, like "Don't rub the judge the wrong way—you've got other cases to think about" and other aspects of courtroom culture."Usually," Hansen says, "defense attorneys wait for the DA to give them the facts, so we changed the narrative to 'Let's conduct our own investigation.' The typical practice was to let the prosecutor drive things—it's a subtle change that makes a huge difference because cops get it wrong all the time."It was a thousand little things we did differently," Hansen says, including their behavior with judges. "We demanded money to pay for experts," he says. "We ask for the money and tell him 'If you don't supply it, we'll get you overturned.' So we get the expert funding more often. It was little cultural changes, not 'go along' so much."Hansen says that in the past, "DAs got the death penalty 98 percent of the time, but in my time in the program only one person has gotten the death penalty out of more than 80 cases.""We're the Bad News Bears of the death penalty," he says.Part of the RPDO's cultural narrative is never go to trial. Its audience is ultimately not the judge or the jury or the defendant. ("Sometimes the defendant thinks something will happen in court and they'll be acquitted," Hansen notes.)The staff's effort is focused on the district attorney. "If we can find enough mitigating evidence of, say, abuse that the defendant was sexually molested, we tell the DA what we're going to tell the jury. If we can give them even a 1 percent chance that they'll lose," Hansen says, "they'll take a deal."The prosecutors "save time and money—'I can get life without parole right now for nothing, so why go for the death penalty?' "In using narrative theory to construct a strategy, Hansen also looks at the narratives guiding the opposition."We're conscious of the narrative guiding the DA, which is 'seek justice,' which equals the death penalty," Hansen says. "The narrative of 'reduce taxpayer spending,' that's the one we want to go by. So if we drive up the cost of the case—in one instance we hired an expert to say that our client's exposure to asbestos in public housing affected his frontal lobe and therefore his impulse control—the judge calls the county commissioner for $500,000 to pay our experts and the DA has a similar cost, so it's $1 million."So the county commissioner calls the DA and says, 'Are you going to spend a million dollars on this case?' and it becomes: Are we going to have a new fire station or are we gonna spend a million to kill the defendant? We saved our client's life because we made the narrative of 'save money' more important than 'seek justice.' "James Farren, district attorney of Randall County, Texas, knows all too well the financial cost of capital cases, though he says he's never been pressured to accept a life sentence for financial reasons."I've never had anybody that overt about it," Farren says, "but they don't have to be overt. ... I know [death penalty cases are] going to be very expensive and resource-draining. My county doesn't have the resources of the federal government, so we have to be careful that [the] cases where I seek the death penalty are the most egregious of all."And Farren has received RPDO narratives for cases he's prosecuted. "Absolutely," he says. "I understand that they're trying to get me to see that when we get to the punishment phase of the case, they might have some mitigating evidence that might sway the jury, and the jury might not go for the death penalty."But he also looks into a defendant's past himself: "I spend a lot of time considering the defendant's life story because usually it demonstrates a pattern of violence and disregard for other people's rights and demonstrates individuals who are narcissistic in what they want or need."Hansen says the RPDO's new way of thinking about cases allows attorneys to think about strategies for the case as a narrative and the players as characters."The relationship between the defense counsel and the DA used to be really adversarial," he says. "Now we think about what string we're going to pull to get a plea."An example: "If a cop gets killed and the DA doesn't go for death," Hansen says, "that DA is done because cops won't go to work for him. So we don't think of him as a bastard, but as a poor bastard.""We look at the DA as someone who faces a bunch of pressures and who we want to persuade with our narrative."Jill Patterson is more than a Texas Tech professor. She also edits Iron Horse Literary Review. Her work has appeared in Texas Monthly, Gulf Coast, Grist and other journals. This year, she began work as a Soros justice fellow, writing case narratives for the next 18 months while establishing a bank of other creative writers who will take on one pro bono case per year."I teach narrative nonfiction, and I'm always telling my students, 'You signed up for this class because someone treated you badly, and there's no such thing as a villain.' So this was an opportunity to practice what you preach and apply it to real-life circumstance."Patterson says she hasn't investigated a case where she couldn't find a nexus, "the reasons why he did it instead of 'He's a monster,' that their lives had led them to that point—the why they did it."The work can be both disheartening and encouraging. "I sometimes feel like I'm cleaning up a mess on the back end," she explains. "If someone had paid attention when the defendants were children, we wouldn't be here.""I see a lot of dark stuff," she says. "Experiences in childhood manifest themselves in crimes later on."Patterson is encouraged by the RPDO attorneys. "I often pictured lawyers as slick, but these are solid gold. They have the education to be more wealthy, but instead they're helping people who are committing horrible crimes."She's in the early stages of finding other writers who want to take on the work. "Discovering who did it is the climactic moment," Patterson writes in the article "Writing for Life" in the journal Creative Nonfiction. "They're building a story that can be told by the DA and reporters, one that will make sense to a judge and jury. But pointing a finger and saying, 'He did it!'—that's what writers call the surface tale. It's just facts and dates and times. A mere outline, really.""Writers like me know that the end of any tragedy is a direct result of all the events that came before."In "Writing for Life," Patterson explains her process: "I use headings like Key Characters, Timeline, Flashbacks, Cause and Effect [and] Climax as scaffolding. By the time I look at the crime scene photographs ... I know as much as it's possible to know about the defendant and his mindset. Then I start the long process of organizing the particulars into a dramatic story." A narrative usually involves six to eight months of work, she says.Patterson has written seven narratives for the RPDO (nine total, including work for other entities). Four received sentences of life without parole and two cases were pending at press time. But her work on the case of Eric Williams, a lawyer and former justice of the peace convicted of killing a prosecutor's wife, could not prevent a death sentence. "That was my first [loss]" she says, "and a very hard blow for many reasons."Texas' approach of using creative nonfiction writers is unique. Ken Rose, a senior staff attorney at the Center for Death Penalty Litigation, says he doesn't know how other states handle mitigation narratives, but in North Carolina "in capital cases narratives are composed by litigation investigators appointed by defense services who are often social workers who have specialized training, and they investigate history and background and circumstances of the crime."Patterson's lawyer colleagues on the RPDO appreciate her work."Using Jill as a storyteller is really effective in a variety of ways," says Maxwell Peck, whose capital case beat covers 26 counties in the Texas Panhandle. "Lawyers are trained in the law, but all we do is craft a narrative to fit a certain set of facts. A lawyer would not consider being his own ballistics expert, for example. We have a rudimentary knowledge in a lot of fields, and the same is true with storytelling. So there's no reason not to call in someone who has experience in creative nonfiction narrative craft.""We've used her narratives to convince prosecutors; she also helps craft opening statement and closing arguments," Peck says. "We've also put some narratives into a video format. Even if it doesn't persuade the DA, we might show the video to our client to achieve a higher level of trust, and that can persuade the client to take an offer that they might not otherwise."Supreme Court Justice Scalia has said a capital jury can impose life without parole based on nothing more than mercy alone. The Supreme Court has said mitigating factors can be anything—any possible compelling narrative that might reach any given juror. That's why a narrative specialist is an interesting person, because they have the interest and the expertise to identify the most compelling narrative."So there are cases where the defendant has to be convinced to take the plea?"In 85 percent-plus of cases that go to trial in Texas, death is the verdict," Peck explains. "So yes, sometimes we have to convince the client to take a plea, and in the ABA guidelines of death penalty counsel, part of the duty is to seek a plea deal. Someone may be convinced of their innocence, or [they] don't want to face possibility of life without parole or have mental intelligence impairment that doesn't rise to incompetence. Just because we get an offer doesn't mean we get a deal done."Rob Cowie, an RPDO attorney in Lubbock, appreciates how Patterson weaves the defendant's life story into the case, helping to understand the context of the crime to the client's life story."Texas has a bifurcated murder death penalty, so most of our investigation regarding punishment happens before guilt or innocence," Cowie says. "You use your mitigation story to get the state to waive the death penalty—especially in Texas, the goal is to never go to trial and reach pretrial resolution because the likelihood of death is so high.""Jill helps relate the defendant to the crime to help you take the facts and the story that we all sense is there and put it into compelling fashion," Cowie says. "Because her focus is compelling nonfiction, she puts facts together and develops stories into compelling narrative. You're looking for a narrative where you can say about the defendant, 'Wow, that's a guy that people can give mercy to.' "This article originally appeared in the March 2015 issue of the ABA Journal with this headline: “Telling Tales, Eluding Death: A new approach changes capital cases in Texas.”