MY ACCIDENTAL LITERARY CAREER

On the publication of my seventh (or is it my sixth) book, I got to thinking back over my accidental literary career, how it got started, and how it has progressed. I’d always had a hankering to become a published author, but never thought I'd actually do it. Then I retired from the State Attorney’s Office and things began to fall into place. 

[1] Prosecution Principles: A Clinical Handbook, West Group, St. Paul, MN, 2007.

When I started as a legal skills professor at the University of Florida College of Law, I couldn’t find a textbook on how to be a prosecutor, so I decided to write one myself. It wasn’t hard to throw something together because I had taught a lot of continuing legal education courses on a wide variety of subjects and I had written brief monographs for each subject. It was no trick to simply put the monographs together in the order I wanted to cover the subjects in class, and I had a textbook for my first semester. I made a pdf of the book and gave students free copies of the text. I’m almost never satisfied with something I make, and I keep going back and tinkering with it until I get it as near perfect (for me) as I can. Each semester I improved the textbook. One fine day a representative of West Publishing was giving us a refresher course on Westlaw, the computer research software. During a break, I told her about my plight in being unable to find a textbook and my solution. She said that West might be interested in publishing the book if it were aimed at a national audience. I told her I could certainly rewrite the book and make it less Florida-centric. And so, completely by accident, I got my first book published.

[2] The Last Murder: The Investigation, Prosecution, and Execution of Ted Bundy, Praeger, 2011.

Ever since guilty verdict in the Ted Bundy case, people have been asking me “Why don’t you write a book about the case?” I could write several thousand words on why I didn’t immediately try to write something about the case, but I won’t. I’ll just give two reasons: (1) I felt it was not proper to write about the case while it was still in litigation. (2) I needed to put a few decades between me and the crime before I could bring myself to write anything. I purposely set out to write a book that wouldn’t have a lot of commercial appeal. I wasn’t going to write a lurid, sensational penny-dreadful style book like most of the stuff that is written in the “true crime” genre. I wanted to write an antiseptic, professional analysis of the investigation and prosecution. Despite my best efforts to make the book unmarketable it sold fairly well. The style I adopted for The Last Murder would be the style of every subsequent book I’ve written. Academic, scholarly, and difficult to read unless you really want to learn something about the subject.

[3] Cross-Examination Handbook: Persuasion, Strategies, and Techniques, 1^st ed., Wolters-Kluwer, 2011. (co-author). 

I hadn’t been practicing law long before I began to build a reputation as a pretty fair cross-examiner. I was often asked to teach on the subject of cross-examination at continuing legal education courses. (As a matter of fact, I’m going to be lecturing at a CLE on cross-examination in December). I wrote a monograph that I used in connection with my cross-examination lectures, and over the years I tinkered with it. More for my own amusement than with any thought of publication, I wrote a full-length book on the subject. It must have gone through 20-25 revisions. About the time I retired, I was talking to my good friend Ron Clark, Distinguished Practitioner in Residence at Seattle Law School, and he mentioned he was preparing to write a book on cross-examination. I told him I had already written one, and he wanted to read it. I sent it to him, and he invited me to co-author the cross-examination book with him. I said “Why not.” We used some of my work from my unpublished manuscript in Cross-Examination Handbook, but Cross-Examination Handbook is definitely Ron Clark’s book, I'm just a helper.

[4] The Case Against Christ: A Critique of the Prosecution of Jesus, Cambridge Scholars Publishing, 2012.

When The Last Murder came out someone asked me what I was going to write next. Without thinking I said “I think I’m going to write about the prosecution of Jesus.” I don’t know where that came from. I was surprised when I heard myself say the words, but I got to thinking that would be a very good project. I had been engaged in intense study of the New Testament since college, and I had two three-ring binders full of notes on the Gospels. The Case Against Christ turned out to be the hardest book to write of any of the books I have written. As I understand it, publishers expect fiction writers to provide them with completed manuscripts when they’re pitching a book; non-fiction writers give publishers proposals for unwritten books or books in progress. You send the publisher a description of your project, a sample chapter or two, and an annotated table of contents. If they like the book, they’ll give you a contract and give you direction in how they want you to finish the book. Publishers kept rejecting The Case Against Christ, and some of them were downright nasty about it. I took their critiques and rewrote, and rewrote, and rewrote. I lost track of how many rejections I got, but it was more than two dozen. I kept count of the number of drafts—48.  I finally found a publisher, and they seem to have a much higher opinion of the book’s worth than I do—they’re charging $75 a copy for it. This book turned out to be my biggest disappointment. It’s too dry. Chapters 3-6 should be Appendices A-C. It’s written for too small an audience. It’s formatted like a 19^th Century Bible study book rather than a modern book. I could go on, but I won’t. I got my son John (who is a lawyer) to read the manuscript, and his assessment summed the book up quite well, I think. He said “The five people who read the book will really enjoy it.” One of these days, I’m going to revisit the trial of Jesus and write a more accessible (and affordable) account.

[5] Abraham Lincoln’s Most Famous Case: The Almanac Trial, Praeger, 2014.

The Almanac Trial was far and away the one that I had the most fun writing up to that point in my writing career. By the time I started writing the book, I was beginning to think that I needed write more like the newly emerging genre of “creative nonfiction” than the dry genre of academia. I had a contract to write the book in no time, and I tried hard to be more of a storyteller and less of a dry lecturer. It worked in some places and in other places it didn’t. The critique I got from my daughter Laura was that I spent too much time talking about how I figured out what happened. I felt like I had to do it, though, because some of the things I was saying were so contrary to the conventional wisdom about the Almanac Trial.

  

[6] Cross-Examination Handbook: Persuasion, Strategies, and Techniques, 2^nd ed., Wolters-Kluwer, 2014. (co-author).

You might think I’m cheating by counting a second edition as another book, but we put a lot of work into the rewrite.

[7] The Lindbergh Kidnapping Case: A Critical Analysis of the Trial of Bruno Richard Hauptmann, 2016. (co-author).

When I was still with the State Attorney’s Office, my good friend Jim Dedman, who was with the National College of District Attorneys, asked me if I would like to write a chapter in a collaborative book he wanted to edit about the Lindbergh Kidnapping Case. I had written chapters for a couple of law books already, and I was game to write another one, so I agreed. Jim was busy and I was busy, and things never quite got off the ground until Jim retired, and the project morphed into just Jim and me writing the book. This book was the second-hardest to write, mainly because I knew absolutely nothing about the Lindbergh case before we began and the volume of material on the case is gigantic. I’m still no expert on the shenanigans that went on outside the courtroom, but I’m pretty well versed in the evidence now.

[8] Prairie Defender: The Murder Trials of Abraham Lincoln, in prepublication with Southern Illinois University Press. Projected publication date: late 2017.

To date, this is my favorite book, and I think it is going to be the most marketable. Of all the books I have written it is the least “academic.” Scholarly books have to go through a peer review process where anonymous experts read the book and critique it. You have to have a thick skin to get through the process. One of the reviewers barbecued me because my language wasn’t scholarly enough—it sounded like I was writing mystery stories rather than an academic text. My response to that was “Good.” He didn’t think I had enough footnotes, either. I added some footnotes, but I didn’t change my language. The book is still written in plain English, not “Academian.” I can hardly wait for the publication date. 

[9] Six Capsules: Poisoned Innocence (tentative title, 70,000 words written so far.

When we were finishing up The Lindbergh Kidnapping Case Jim asked me what I was going to write next, and I told him I didn’t know. Jim said “Why don’t you write about the Carlyle Harris case?” Not many people know anything about Carlyle Harris, but back at the end of the 19^th Century, he was New York City’s answer to Ted Bundy—a handsome, articulate, charismatic medical student charged with the murder of a beautiful young girl. The case made headlines all around the nation, and it made the reputation of Francis L. Wellman, author of The Art of Cross-Examination. I read The Art of Cross-Examination when I was a senior in law school, and I read it about once every three months for the first two years I practiced law. There is a chapter in the book on the Harris case, so I was familiar with the case to that extent, but I wasn’t aware of all the bizarre goings-on surrounding the case. I dug into the facts a little, and I got hooked. I have written the book all the way through to the verdict of guilty and the appellate opinion affirming the conviction, and I’ve got about three more chapters to go. The case really gets bizarre after the Court of Appeals affirms the conviction. I haven’t started shopping the book around to publishers yet—I’m actually thinking about self-publishing this one. I want to publish a book in the price range of $15-$25. Well, we’ll just see what happens. 

[10] Who Knows? 

Where I’m going to go after Six Capsules is anybody’s guess. I do know one thing. As long as I can, I’m going to keep on writing. I’m never going to be on the New York Times bestseller list, but I’m going to do something that I really enjoy and something that I think is really worthwhile.  

I'M GOING TO BECOME A PROSECUTOR. WHAT SHOULD I READ TO PREPARE MYSELF?

Just the other day I was approached by a student who told me that he had just accepted a job offer from a prosecutor’s office. He wanted me to recommend some reading for him to prepare him to hit the ground running when he took up his post upon graduating and passing the bar. I didn’t seem to remember him from the Prosecution Clinic, so I asked if he had taken either it or the Criminal Defense Clinic. He hadn’t. I made some recommendations off the top of my head, and told him if he would email me I would send him a more comprehensive list.

Here, then, is my recommended reading list for recent graduates who have just taken a job with a prosecutor’s (or public defender’s) office. The list will be Florida-centric, but readers in other states ought to be able to modify it to their jurisdiction:

Prosecution Principles: A Clinical Handbook, by yours truly. If you think I’m just trying to sell books, then purchase

The Art of Prosecution, by John Bugliosi, or

The Best Story Wins (And Other Advice for New Prosecutors), by John Bobo.

After reading one of these books, you should read:

The Rules of Criminal Procedure,

The Evidence Code, and

The Criminal Code.

You should read the Evidence Code and the Rules of Criminal Procedure from beginning to end. Be judicious about reading the Criminal Code, as there will be far more laws on the books than you will ever encounter on the average docket.

Additional references which it would be nice to be familiar with are

Your jurisdiction’s Standard Jury Instructions, and

The Sentencing Guidelines or Punishment Code, for your jurisdiction, and last but certainly not least

The Rules Regulating the Bar Association of your jurisdiction, with particular emphasis on the Rules of Professional Conduct.

Finally, the following resources might give some guidance:

The National District Attorneys Association’s National Prosecution Standards, 3d edition,

The America Bar Association’s Criminal Justice Standards for Prosecutors, and finally

The Code for Crown Prosecutors, paragraphs 4.1 through 4.11, which describes The Full Code Test, an excellent methodology for making the most important decision a prosecutor routinely makes—the decision whether to file charges, whom to file charges against, and what charges to file.

INTERVIEWS, INTERROGATIONS, AND CONFESSIONS

Working at the law school, I get called on from time to time to act as an “expert” for interviews with various news media. Usually the questions deal with criminal law, law enforcement, and prosecution issues. Sometimes I can help the media understand various issues, not because I am an “expert,” but because I have had sufficient experience with those issues to be able to figure out what is probably going on in most of the situations.

I gave an interview the other day on an issue that I considered a “tempest in a teacup.” There was a law enforcement investigation into a minor crime which resulted in the suspect being not only exonerated but proven innocent beyond a reasonable doubt. So what was the big deal? Unfortunately, however, the suspect was a local celebrity and somebody gave an anonymous tip to the media.

The media had focused in on a tape recorded interview given by the suspect and wanted to know if the officer had violated the suspect’s rights or otherwise done anything wrong. My answer was that, aside from being impolite, the officer had done nothing legally or morally wrong. What I saw wrong with the interview was the interview technique used by the officer.

The officer started the interview off by telling the suspect he was guilty, telling him they had an ironclad case against him, and calling on him to confess. When the suspect started denying the crime, the officer cut him off and went back to telling him how guilty he was. Then the officer gave the suspect an excuse for having committed the crime and tried to get him to adopt that excuse as a reason he did it. The only problem was, he was innocent and he didn’t do it. He gave the officer his whereabouts (he was at a restaurant when the crime occurred), and when the officers went and interviewed the restaurant personnel, they supported the alibi. He also gave other corroborative evidence which, when checked out, proved true; and he asked if they had any kind of surveillance footage. At the time of the interview, they didn’t have surveillance footage, but when they did pull the footage it established that the suspect wasn’t at the scene of the crime.

As I said earlier, a tempest in a teacup. The officer took a complaint, made an investigation, and ultimately cleared the suspect. The only problem was the officer could have been more polite. But the situation got me to thinking about the type of interview technique the officer used. It's used by many law enforcement agencies, but I don't like it. Here's why:

It looked to me like the officer was using what is called the Reid Interrogation Technique, a nine step technique for corkscrewing confessions out of people. I thought I could see the first three steps being deployed, but I didn’t see any evidence of the next six steps. I can’t say for sure that the officer was using the Reid Technique because each step of the nine steps of the Reid Technique is an interrogation technique that predates Reid. Reid simply took the various techniques, put them together, and made a system out of what had previously been ad hoc hit-or-miss tactics sometimes used by interviewers.

I don’t like the Reid Technique because I think it is based on a flawed premise. It presupposes the suspect is guilty and its objective is to get him to confess. I think a better presupposition is something like: The suspect may be guilty and my objective is to find out if he is.

Suspects can be browbeaten into false confessions. I have seen it happen. When I was a public defender, I had a client who loudly proclaimed his innocence and told me he there was no way he was pleading guilty. “Fine,” I said, “We’ll go to trial.” The morning of trial I spoke with the complaining witness, and I was not impressed with his veracity. I went back to the holding cell to discuss the case with my client, and our chief investigator was in the cell with him. They were in the middle of a conversation, and the investigator wasn’t being very polite. I stood there with my mouth open as my client, crying like a baby, said he was guilty and was ready to plead guilty. I found my voice. “Wait just a damn minute here. You’ve been telling me you’re innocent and you want a trial. I’m ready to give you your trial today. What do you mean telling me you want to plead guilty?” My language may have been a little spicier than that. He assured me he wanted to plead guilty. “Okay,” I said, “It’s your decision. I’ll go talk to the state attorney.” I went into the courtroom and approached the state attorney and asked him about a plea in the case. “No,” he said, “I’ve dropped the charges. I don’t believe the complaining witness.”

When I wrote Prosecution Principles I suggested a method for interrogating suspects that is a little more labor-intensive than the Reid Technique, but I think it’s based on a much better premise. Here’s what I said:

Three Types of Questioning. There are many types of questioning aimed at many different objectives, but we need concern ourselves with only three–the interview, the interrogation, and the examination. Interviews and interrogations occur outside the courtroom, usually in anticipation of some court action, and examinations occur inside the courtroom in support of a court action. Interviews and interrogations do not necessarily have to be given under oath, but examinations are almost always conducted with the witness under oath. In interviews and interrogations, the examiner is also the audience, and the examiner seeks to discover information from the witness. In an examination the examiner should already know the witness’s information, and the objective is to disclose the information to the audience, either judge or jury. An interview presupposes a cooperative witness, while an interrogation presupposes the witness to be uncooperative. An examination presupposes some sort of legal compulsion to answer, usually in the form of a subpoena.

The Interview. The interview of a friendly witness presents the examiner with a relatively easy job. The witness willingly discloses the necessary information, if only the examiner can ask the right questions. Too often examiners can fall victim to tunnel vision, focusing too closely on issues too narrowly defined. A good interview technique is to simply say, “I want you to tell me what happened. Just start at the beginning and go to the end, and don’t leave anything out in the middle.” Listen and take notes for follow-up questions. After the witness has disgorged his information, follow up with specific questions. Do not fear going “outside the crime scene tape,” asking questions on any peripheral areas that may be of interest. Do not neglect the witness’s background. Establish the precise nature of any relationships among the principles to the incident. You must be very careful with the facts presupposed in your questions. The witness, wanting to cooperate, may accept presuppositions which are untrue, to the detriment of the truth-seeking process. In one long-forgotten murder case a young assistant public defender [yours truly] got each of the witnesses to say on interview that the victim “ran up on” the defendant’s knife. He went to trial confident that he could prove the victim committed the functional equivalent of suicide by impaling himself on the defendant’s knife. He was bitterly disappointed when none of the witnesses testified to that “fact” at trial. In re-evaluating his performance, the young attorney realized that when he interviewed the witnesses, they simply tried to be helpful by accepting his preconceived notion of what had happened. Had he more carefully tried to keep from telegraphing his preconceptions, he would not have deceived himself. In addition to being careful with the presuppositions of the question, you should also be expansive with the presumed field of answers, using the least restrictive prescribed form for the answer.

The Interrogation. Where an interview is an exercise in education, an interrogation is an exercise in extraction. Many examiners approach the interrogation of a suspect with the objective of extracting a confession. This is a capital mistake, as the suspect may be innocent. The examiner should approach the suspect interrogation with the same objective as any other form of questioning–to extract the truth. You are more likely to achieve the truth if you do not try to impose your preconceptions about the truth upon the witness. The interrogation presents this conundrum–-although the examiner must still be careful with the facts presupposed in the question, lack of cooperation from the witness demands that the examiner narrow the presumed field of answers and adopt a more coercive prescribed form. How can a witness be coerced into telling the truth without resort to torture?

A certain amount of coerciveness comes simply from your position as a prosecutor, a law enforcement officer, and an officer of the court. The authority inherent in that position exerts a more or less subtle psychological pressure to come forward with the truth. Beyond that, the witness’s desire to appear helpful, inherent in any questioning situation, gives a subtle push toward cooperation. Finally, once the witness begins to cooperate by answering questions, the witness’s aversion to being thought dishonest exerts pressure.

The witness will appear dishonest in one of three ways–-either the testimony will be illogical, internally inconsistent, or incompatible with other evidence. As the witness’s testimony becomes illogical, confront the witness with that illogical and ask that it be reconciled. As the witness attempts to reconcile the illogic, she will either give up the truth or become more illogical. The more illogical the witness becomes, the more ridiculous she looks. The more ridiculous she looks, the greater will be the pressure to tell the truth. As the witness begins to try to repair her credibility, she will begin to make statements at variance with what she has already told you. Confront her with these inconsistencies. As she attempts to repair these inconsistencies, she will either become more inconsistent or more truthful. The witness will also become inconsistent with other known facts. As these inconsistencies arise, contradict her with them. Do not let the witness know what you already know unless and until the witness tells you something at variance with what you already know. Not knowing how much you know and not wanting to be gainsaid on other statements, the witness will either come around to telling the truth, or completely destroy her credibility, or shut down completely and refuse to give further information. Patience is if paramount importance. The less impatient you appear, the less hostile you are as you point out the problems with the witness’s testimony, the longer the witness will talk before shutting down completely. [Something I used to tell officers when they were disappointed that a suspect hadn’t confessed: “A horrendous lie is just as good as a confession; sometimes even better.”]

Quintilian’s Corkscrew. Most people try to be truthful most of the time. Rather than lying, many witnesses will simply become incredibly uncooperative in giving forth the information. They will deploy every available evasive technique in their efforts to prevent you from getting the information you want. The ancient Roman rhetorician Quintilian had this to say about corkscrewing the truth out of a reluctant witness:

“With the witness who is going to tell the truth with reluctance, the prime success for the interrogator is to extort from him what he did not want to say. This can only be done by questioning which starts a long way from the point. He will then give answers which he does not think harm the Cause; later on, he will be led from a number of admissions to the point when he cannot deny what he does not want to say.” [Quintilian, The Orator’s Education, 5.7.17, Trans. Donald A. Russell, Harvard University Press, Cambridge, Massachusetts, 2001. p. 343.

Beginning with small, innocuous admissions, the examiner builds on those admissions to larger ones. By the time the witness has made all the preliminary admissions, he will have locked himself into making the targeted admissions.

I recently learned that a system which is very similar to my recommendations is being taught as the PEACE Model of Investigative Interviewing. It is supposed to be the interview model used by law enforcement in the United Kingdom. If I were the head of a law enforcement agency, I believe I would be inclined towards having my investigators trained in the PEACE Model rather than in the Reid Technique. At least one up side of the PEACE Model is that when the news media listen to the tape recordings of an entire interview, they won’t be criticizing the officers for being rude. Which reminds me. If I'm not mistaken, one thing that the Reid Technique teaches is that you don’t turn on the tape recorder until the final stages of the interrogation when you are ready to memorialize the suspect’s confession.

PROSECUTION PRINCIPLES

When I wrote my first book, Prosecution Principles: A Clinical Handbook, I had very little experience and no training as an author. If you needed a search warrant or a racketeering indictment, I could whip one out pretty easily, but I was clueless about how to write a book. Instead of seeking guidance from someone or even reading a book on the subject, I adhered to the maxim: "Don't learn from the mistakes of others. Make them all yourself."

Now, as I am busily writing my fifth and sixth books and gathering material for my seventh, I look back on that first effort and ask myself  "How in the world did I ever get that book published?" As keenly aware as I am of how much better a job could have been done on the book, I tend to ignore the book's qualities. That's what makes it nice when someone reminds me that the book does have some good qualities.  Yesterday I got an email reminder. It came from an elected prosecutor in Virginia who teaches as an adjunct professor at Washington & Lee University. He wrote:

Hello Prof. Dekle,

I am a small town prosecutor in Virginia and teach a seminar for third year prosecutor externs at W&L. We have been using your book the past few years and as I'm preparing for next fall I thought I'd just drop you a note of appreciation and thanks. The book has been perfect for this course and I personally have really connected to many of the points you make about the role of a prosecutor. 

Sincerely,
Christopher B. Russell
Professor of Practice
Washington and Lee University
 

Commonwealth's Attorney for the
City of Buena Vista, Virginia

A GOOD QUOTATION ABOUT THE OFFICE OF THE PROSECUTOR

"[T]he prosecuting officer occupies a semi-judicial position: that he is charged with a large discretion, and that, while it is his duty to bring to justice those whom he believed to be guilty, it is equally his duty to protect the innocent and to refrain from prosecuting those against whom no sufficient or reasonable proofs can be found. In the course of his duty he sometimes has to stand between an incensed public sentiment, voiced by a clamorous press, and suspected persons against whom no proofs of crime can be found". Joseph Hodges Choate, May, 1909.