Storytelling for Lawyers (31 page)

What might the legal storyteller make of this paragraph? Let us walk through the paragraph, focus on the settings and descriptions in this scene, and observe how this paragraph fits with the previous excerpt depicting this place. First, observe that Abramsky is holding a white goose wing: a prop that Sebald employs to signal to the reader the beginning and ending of the brief scene, and to direct the reader's attention. Next, as Abramsky recalls the shock treatment practices at the sanatorium, he revives Uncle Ambrose
vividly with description and brings him onstage. Again, the scene does not focus on describing the practice of electroshock therapy directly; instead, the reader, from Abramsky's perspective, watches the sympathetic and dignified Ambrose dressing
after
receiving shock therapy. The description becomes visually specific here, as if a cinematic camera lens stops to focus in a close-up on a description of Ambrose: “He took almost the whole day to get dressed. Simply to fasten his cufflinks and his bow tie took him hours.” Observations about Ambrose's physical symptoms from the shock therapy, including bad headaches and deteriorating eyesight, are translated from abstractions into vivid visual images that interact with Ambrose's old world meticulous nature. The reader witnesses Uncle Ambrose, the displaced emigrant, a former manservant to European royalty, standing at the window, wearing a green eyeshade, gazing out across the marshland. It is difficult for the reader not to empathize with the character displaced in this setting and grasp his longing, his nostalgia for an eternal return; the setting matches the theme of the book itself—the emigrant severed from his past and adrift in a new world.

Ambrose then makes his “enigmatic remark” about “waiting for the butterfly man” and the scene shifts as Ambrose accompanies Abramsky to the treatment room. Fanhnstock, who is not described, but presented merely as a name, awaits Ambrose's arrival. The preparations for the electroshock are then described in clinical terms but also with a poetical description at the end of the sentence, from Abramsky's perspective or point of view: “the electrodes on his temples, the rubber bit between his teeth, buckled into the canvas wraps that were riveted to the treatment table like a man shrouded for burial at sea.”

The procedure itself is not described. Here too, the emotional power of the scene, and the reader's response to the brutality of the regimen of electroshock therapy, are captured by the description of Ambrose after the events are over. What is left out of the description is as important as what is put in it. And then the scene cuts to the next day, when Abramsky goes to the room and describes Ambrose. The aftereffects of the electroshock practice, its reverberations, are captured in the way Abramsky is affected by having to recall and describe Ambrose's last days, even so many years later. Sebald closes off the scene employing the prop introduced at its start, describing Abramsky defining “a gentle arc with the goose wing in the darkening air.”

Akin to Sebald's depiction of place and the practice of elctroshock therapy at a sanitarium in upstate New York, petitioners' briefs in coerced confession cases often focus on the places where bad things happen and the practices that occur within them. Like the story about Uncle Ambrose, these cases are
generally set in dark environments where nefarious practices occurred long ago, often followed by complex official cover stories. It is up to the legal storyteller to piece together what actually occurred or, in some cases, to determine that what happened can never be known.

In some briefs, the environment is reconstructed through the accretion of descriptive detail. For example, in the petitioner's brief in
Reck v. Ragen
,
¹²
the depiction of the circumstances of the petitioner's forced confession in the “Statement of Facts” stretches over thirty pages, and the time frame extends long before and after the actual custodial interrogation. Here are several pages from this not atypical coerced confession story:

By Friday evening, the four boys had become the focus of a major police effort. A “big show-up” was underway. A “big crowd” of people (“a hundred or more”) congregated in the [North Avenue Police] Station. Reck [the defendant] was being exhibited on the second floor. Shortly after 7:00 P.M. Reck fainted.

Unidentified persons assisted Reck to a bench. Reck “was placed on a stretcher on the second floor and carried downstairs.” By 7:20 P. M. Reck was on his way to the Cook County Hospital “in the customary district patrol wagon.”

At 7:45 P.M. Reck was brought into the receiving room of County Hospital in a wheel chair. The police officers who delivered Reck told the interne on duty that Reck had experienced an “attack and felt kind of dizzy” and had suffered “one or two fainting spells.” The interne examined Reck and found no marks or bruises on his body. He then concluded that Reck “was not fit for the hospital” and “rejected” him.

Reck was taken directly back to the North Avenue Police Station arriving there at 8:15 P.M. He was placed on exhibition in a show-up. Quite a number of police officers were in the room, together with the latest batch of civilian viewers.

After a short period, Reck became sick and Officer Reilly took him out of the show-up room and into an unfurnished handball court in the rear of the Station's second floor.

Reilly said that he “did not want to have [Reck] annoyed” and thus Reilly “did not care to show him up to … anybody” because he was “…feeling careful of [Reck's] feelings.…” Therefore, Reilly saw to it that the civilians were kept out of the room. Reilly said he wanted Reck to rest.

But Emil Reck got no rest. Almost immediately, Sergeant Andrew Aitken, assigned to the Peacock murder investigation, entered the handball court. With him were Sergeant Patrick McShane and Patrolman Timothy Donovan. Besides Reck and the three police officers, no one else was in the room, nor did anyone else enter for some minutes.

Aitken and the other officers stayed with Reck “rather uninterruptedly, almost constantly” for the next half-hour. After 15 minutes, Reck was standing near a bench which had been placed in an otherwise bare handball court for the purpose of letting Reck “rest” on it. According to Sergeant Aitken, he then asked Reck the following question: “Emil, have you seen any motion pictures or read any magazines relative to ballistics? That is the reason why you disposed of your revolver for fear it may be traced back to the Doctor Peacock murder?” Aitken's version of what happened then is as follows:

“With that he sat down and slumped on the bench and became very pale. And I said, ‘Are you sick?' A few moments later he answered, ‘I am sick.' I says, ‘What is wrong?' He says, ‘I got some blood sickness while in the C. C. Camp.'”

When Reck “slumped” to the bench, he doubled up forward from the waist.

A Dr. Abraham was called into the handball court. When Dr. Abraham entered the handball court, Reck was “extremely nervous.” Reck was also “exposed.” His pants were undone. His shirt was unbuttoned and hanging outside of his pants. He was rubbing his abdomen. Dr. Abraham didn't know why Reck was “exposed,” and no one told him. Reck told the doctor that he had a pain, pointing to his abdomen. Dr. Abraham “examined” Reck for 30 to 60 seconds.

After Dr. Abraham's 60-second check-up, Reck lay down on the bench. But the police who were present throughout did not allow Reck to rest. When still more people entered the room to question Reck, he was told to get on his feet, and “the color went away from him again.” After a while, civilians were brought into the handball court to identify Reck. He was told to get up from the bench when anyone walked in.

By 9:15 P.M. civilians were again being excluded from the handball court. Although there were about fifty other people who were “anxious” to see Reck at this time, Reilly was keeping all of them out of the room. One such person got the impression that he was being given “a
run around” when, after he “pushed through the crowd,” the police told him that Reck “was injured.” “They told me he was hurt.” Between 9:30 and 9:45 P.M. Reck became ill for the fourth time in three hours. He “bent over and said he felt sick to his stomach” and vomited on the floor. “He was bleeding from the mouth, in short gushes of blood.…” “The blood seemed to come out of the corner of his mouth.…” He bled for “two or three minutes.” Officer Youhn was present. Officer Larke was also present but was never called to testify despite Reck's testimony of being beaten at this time. Aitken was or was not present, depending upon whether one believes his testimony at the trial or his testimony at the post-conviction hearing.

Dr. Abraham was called to examine Reck again. When Dr. Abraham entered the handball court, he saw Reck lying on a stretcher. Nearby was a pool of Reck's blood on the floor. The blood was “a bright red.” It covered an area a “foot square.” But Dr. Abraham did not even give Reck a 60-second examination this time.

Minutes later, at about 9:45 P.M., Reck was carried on a stretcher from the handball court to a waiting patrol wagon. Captain O'Connell gave orders to return Reck to the hospital as fast as possible. At this time, according to the official Police Department “History of Sick or Injured Person,” Emil Reck had been sick for three hours and was unable to walk without aid. He had been in police custody for 59 hours.
¹³

The petitioner's brief in
Reck
tells a story that can only occur in a particular type of world. Like Sebald, the petitioner merely purports to describe, depicting an environment fitting the actions taking place within it and the characters inhabiting it. Unlike Sebald, and perhaps more akin to the dissenting judge in
Rusk
, the petitioner depicts a flat and bare world. In accord with the conventions of legal storytelling, the settings are not fully developed, implicitly discounting the importance of environmental factors in determining outcomes. Furthermore, the story of Reck's journey is not freestanding; it serves as a complement to the legal argument. Nevertheless, the petitioner's functional and not atypical brief reflects compositional choices about constructing his environment in re-creating his dark journey (based on the record). Let's briefly revisit some of these choices:

1.
Sentences and Settings
. Reck's story turns on the narrative inevitability of his confession. Consequently, there is logic and linearity in Reck's world.
Reck is transported down an approximately thirty-page conveyor belt; it is an exhausting journey for Reck and, perhaps, for the reader as well. Unlike Sebald, who revisits Ambrose's treatments in a sequence of interlocking descriptive pieces, the petitioner provides a single elongated and chronological re-creation of his journey.

Reck's story is told in short sentences, mostly employing simple subject-verb-object structure, avoiding complex subordinate clauses. Reck is a passive character—an automaton or object without a clear physical description. Whenever Reck is acted upon, passive words are used. (For example: “Reck was being exhibited,” “Reck was placed on a stretcher,” “[Reck] was placed on exhibition in a show-up”). Whenever possible, sentences knit together direct quotations from the trial record. The paragraphs are equally short and compressed. The sentences and paragraphs are stacked neatly, one atop the next, depicting a linear and strictly chronological sequence of events. The structure and sequence of language match the setting; they are rigid and confining.

2.
Description and Detailing
. Like Sebald, the petitioner captures the reader's attention and establishes Reck's world with carefully chosen descriptive details. These details are arranged to emphasize Reck's dislocation, passivity, and deteriorating physical condition. Unlike Sebald's description, the adjectives and adverbs convey exclusively visual impressions, rather than other sensory impressions (smell, taste, or sounds). And there is the intentional selection of particularly disconcerting and tough-sounding words that further distance the reader from Reck's travails.

For example, the excerpt begins with the “big show-up” under way and a “big crowd” at the police station where Reck is “being exhibited” like an animal at the circus. Reck is in constant motion, transported from place to place; at the center of the excerpt is the recurring image of the bare bench that offers Reck the possibility of rest. There are the vivid images of Reck's deteriorating physical condition (e.g., “bleeding from the mouth, in short gushes of blood”; the blood was “a bright red” and covering “an area a ‘foot square'”). These descriptive images stand out against the bleak and surreal setting.

3.
Perspective
. Sebald subtly shifts the perspective in shaping Uncle Ambrose's environment: he shifts from the perspective of the narrator to that of Dr. Abramsky to a vantage point embracing the perspective of Uncle Ambrose himself; he then backs away. The perspective in the petitioner's brief in
Reck
, however, is fixed; it is a “close” or limited third-person perspective that tracks Reck's journey.

The environment in Reck's story is well tailored to fit the theme; it is not, primarily, about the brutality of villainous police actors. Instead, it focuses on how “Emil Reck got no rest” on his long journey. The crucial prop in the setting is the bare wooden bench that suggests an invitation or a promise of rest. But despite his progressively deteriorating condition, Reck is not permitted to rest. This not so subtle psychological coercion has as much to do with the narrative outcome as does the implied suspicion of physical abuse by the three police officers on the handball court. When Reck is finally permitted to rest, it is on a stretcher, as he is being rushed from the handball court back to the hospital. At this time, the brief observes, he has been in police custody for fifty-nine hours.

Contrast the thirty-page description of Reck's journey with the brief in another forced confession case, the famous U.S. Supreme Court case
Miranda v. Arizona.
¹⁴
The “Statement of the Case” in petitioner Ernesto Miranda's successful brief initially presents a story that is bland and generic: Miranda, accused of rape and robbery, is taken into custody where he is identified in a lineup. The arresting officers do not inform him that anything he says will be used against him, nor do they tell him of his right to consult an attorney.