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Wednesday, November 9, 2011

Law & Crit, Take 3: John Grisham's "The Confession" And Its Role In A Death Row FOIA Request

Today, Alyssa Rosenberg at ThinkProgress posted her third entry in The Pop Culture and the Death Penalty Project. Her post deals with John Grisham's "The Confession." I haven't had the chance to read "The Confession" yet, but it deals with a topic of significant interest to me: What happens when a man sits on death row and another man confesses that he committed the subject crime by himself? This topic, and specifically the Alton Logan case, led to me writing Ordeal by Innocence: Why There Should Be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality, 102 NW. U. L. REV. COLLOQUY 391 (2008).

"The Confession" won the Harper Lee Prize for Legal Fiction, and I bet it's a good novel. In my opinion, though, Grisham's best piece of writing is actually a nonfiction book covering similar territory: "The Innocent Man: Murder and Injustice in a Small Town." The book tells the story of Ron Williamson, a former minor leaguer wrongfully convicted of the rape and murder of Debra Sue "Debbie" Carter. You can read Williamson's Innocence Project "baseball card" by clicking here. Also, I'm not sure about its current status, but I know that Grisham at one point was attached to write a screenplay about the "Norfolk Four," four men also wrongfully convicted of a rape/murder. The "Norfolk Four" might not have gotten as much attention as the "West Memphis Three," but the injustice was no less extreme, and I was disheartened to her that the Supreme Court of Virginia recently rejected appeals from three of the four men to have their convictions overturned (I was living in Norfolk's neighbor, Virginia Beach, during the summer of 1997 when the rape/murder occurred and remember the case seeming fishy from the start).

That said, fictional books are Grisham's bread and butter, and "The Confession" might have accomplished something that none of his other fictional books has achieved: It might have saved a life. 

If you're a criminal defendant or a civil plaintiff and the judge cites to John Grisham, it's usually a bad thing. A very bad thing. Consider the following citations to John Grisham in various court opinions:

•Regarding the latter conclusion, the court noted that Bowden's and Gagen's claims were "on their face, improbable....the stuff of a John Grisham novel," and explained that they failed to produce "any evidence to support their sweeping allegations beyond a few anomalous but inconclusive records." Bowden v. Kirkland and Ellis, LLP, 2011 WL 1211555 at **2 (7th Cir. 2011); 

•"If recited here in full flower, the averments in the complaint would seem to have been lifted from the pages of a John Grisham thriller. Our tale, however, is decidedly less gripping, as many of the more sensational allegations are irrelevant to the issues on appeal." Figueroa v. Rivera, 147 F.3d 77, 79 (1st Cir. 1998);

•In the instant case, the Amended Complaint is 37 pages long, and reads like a JohnGrisham novel. It is replete with hyperbolic statements casting the defendant in a sinister role, and reams of detail not only unnecessary to the pleading, but detrimental to it, in the sense that they make it more difficult to determine exactly what is being complained of. International Tobacco Partners, Ltd. v. Beebe, 420 F.Supp.2d 989, 992 (W.D.Ark. 2006);

•In short, codefendant Kourí–Pérez' motion builds on the quicksands of distortion to present a portrait of deviousness that recalls a John Grisham novel, rather than the facts of this case. United States v. Kouri-Perez, 992 F.Supp. 511, 512 (D.Puerto Rico 1997); and

•Finding that Krieger's complaint read more like aJohn Grisham novel than an acceptable initial pleading, the court dismissed the complaint with leave to refile. Krieger v. Adler, 1996 WL 6540 at *1 (N.D.Ill. 1996).

You get the idea. If you're a civil plaintiff or a criminal defendant and the judge cites to John Grisham, the judge is claiming that legal fiction is your bread and butter as well.

Conversely, consider the opinion of the United States Court of Appeals for the District of Columbia in Roth v. Department of Justice, 642 F.3d 1161 (D.C. Cir. 2011), from this summer. In Roth,

Anthony Roth represents Lester Leroy Bower, Jr., who is on death row in Texas for four murders committed over a quarter century ago. In January 2008, Roth filed FOIA requests with the FBI and the Executive Office for United States Attorneys seeking information concerning the FBI's investigation of the murders and about four individuals who Bower claims are the real killers. Although Bower was prosecuted by the state of Texas, the FBI, believing that the murders implicated various federal laws, jointly investigated the crime with local authorities. An Assistant United States Attorney served as a member of the prosecution team.

In response to the FOIA requests,

The FBI provided a so-called Glomar response, neither confirming nor denying whether it has records regarding three of the four men (the fourth has died). The FBI defend[ed] this response under FOIA Exemption 7(C), which permits agencies to withhold information contained in law-enforcement records to protect against unwarranted invasions of personal privacy

The district court approved of the FBI's Glomar response, prompting the appeal or Roth/Bower. The United States Court of Appeals for the District of Columbia agreed with some of the district court's conclusions, but it also found that there was some additional information to which Roth and Bower were entitled. How much information is unclear because the appellate court left "the task of separating the wheat from the chaff to the district court in the first instance."

But what is clear is that the appellate court ordered additional disclosure, and "The Confession" might have played a role in that decision. Roth argued, inter alia, "that disclosure will further the public's interest in knowing whether the FBI is withholding information that could corroborate a death-row inmate's claim of innocence." And the court bought that argument, concluding that it had

no doubt that th[is] second, non-Brady-related public interest identified by Roth is substantial. In recent years, high-profile exonerations of death-row inmates have generated considerable public interest in the potential innocence of individuals sentenced to death. See Death Penalty Info. Ctr., The Innocence List, http://www.deathpenalty info.org/innocence-list-those-freed-death-row (last visited June 16, 2011) (listing 138 death-row inmates who, since 1973, have been pardoned based on new evidence of innocence or have had their convictions overturned and either were not retried or were acquitted at retrial). This interest has manifested itself in several media, including newspaper articles, editorials, journalistic exposés, novels, and plays. See, e.g.,Jessica Blank & Erik Jensen, The Exonerated (2004); John Grisham, The Confession (2010); David Grann, Trial by Fire: Did Texas Execute an Innocent Man?, New Yorker, Sept. 7, 2009, at 42; see also Editorial, The Death Penalty: It's Time for Capital Punishment To Become Texas History, Houston Chron., Jan. 2, 2011, at B11 (calling for the abolition of the death penalty in Texas because “accumulating evidence indicates that the current application of the death penalty in [the state] involves an unacceptably high risk of killing innocent people”); Tim Madigan, Witness Says Condemned Man Isn't Responsible for 1983 Slayings, Star–Telegram (Ft.Worth, Tex.), June 29, 2008, at 1B (discussing Bower's effort to prove his innocence) (emphasis added).

So, the court relied in part on several nonfiction stories of wrongful convictions as well as John Grisham's work of fiction in ordering additional disclosure. Will that disclosure lead to Bower's exoneration. Only time will tell, but with the additional disclosure, at least he has a chance.

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/11/todayalyssa-rosenbergatthinkprogressposted-herthird-entryinthe-pop-culture-and-the-death-penalty-project-her-post-deals-wit.html

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