Retelling the Darkest Story: Mystery, Suspense, and Detectives in a Brief Written on Behalf of a Condemned Inmate

I\u27ve never used the whodunit technique, since it is concerned altogether with mystification, which diffuses and unfocuses suspense. It is possible to build up almost unbearable tension in a play or film in which the audience knows who the murderer is all the time, and from the very start they want to scream out to all the other characters in the plot, Watch out for So-and-So! He\u27s a killer! There you have the real tenseness and an irresistible desire to know what happens, instead of a group of characters deployed in a human chess problem. For that reason I believe in giving the audience all the facts as early as possible. —Alfred Hitchcock ... I. WHY MYSTERIES AND DETECTIVE STORIES? In training sessions for federal habeas corpus attorneys exploring the use of storytelling in post-conviction litigation, Anthony Amsterdam observed: The central task of postconviction counsel for a condemned inmate is to change a story that has been certified as The Truth. S/he has to deconstruct the story of people and events that was told in the appellate opinion affirming the inmate\u27s conviction and sentence, break that story down into pieces, and recombine those pieces into a new story capable of capturing the imagination and opening the minds of judges and clemency officials and media people and even state\u27s attorneys who think they already know the whole story. Every postconviction case starts with a story that these people believe has been officially written and officially stamped true and officially stamped closed, so that they don\u27t have to think about it any more. Postconviction counsel\u27s job is to CHANGE that story, to reconstruct the world in which that story happened, to force people who think they understand the story to THINK ABOUT IT IN A NEW WAY and to see enough new facts-facts that were not exposed before, or were not put into focus before-so that the old facts make a new kind of sense and turn into a quite DIFFERENT STORY. Implicit in this conceptualization is that post-conviction relief practice is primarily a narrative practice and a writing practice. Simply put, outcomes are often determined by the power of the truthful story told by the attorney representing a condemned inmate. That story must compel the attention of the reader and ultimately persuade the skeptical reader to act, rather than simply accept the ending that has already been determined about the already closed case. To do so, the advocate must enable or compel the reader to think about the facts in a new way and to see a different story that demands a different outcome. Facts are transformed into narrative (or story) with all its elements in play: (1) plot (a structure connecting and ordering events purposefully); (2) character (casting the players onto the stage at the appropriate times, assigning them the correct roles, and assuming characteristics that confirm to their functions as actors within the story); (3) setting (the sense of the place that may provide a compelling force determining the outcome of the plot); and (4) temporality-selecting the time-frame and pace that fits the telling of the story (where to begin and end the story by adjusting the speed of the story and allowing it to unfold purposefully, among other things). Post-conviction relief practice is primarily conducted based upon the submitted, written briefs, and the goal is often to obtain an evidentiary hearing. As a result, and because so much is at stake in this writing, post-conviction relief practice is a remarkable laboratory for understanding, critiquing, and teaching effective brief writing and narrative persuasion. ... This Article develops in three movements: first, the Article presents an annotated reading of the Statement of the Case in the petitioner\u27s brief in Williams v. Taylor.9 This initial annotation identifies and foregrounds terms from a conceptual vocabulary that may be helpful for the construction of narratives in other cases (and other types of cases). Second, the Article identifies several relevant narrative concepts that may be helpful in analyzing narrative construction, particularly in postconviction relief practice. Third, this terminology and conceptual vocabulary is then applied to the petitioner\u27s brief in Williams. The Article briefly observes how the initial story presented in the statement of the case is transformed in a second telling presented within the argument and presents several illustrative excerpts from this section of the brief. The Article concludes with a note suggesting the importance of expanding the scope of traditional legal writing and skills programs to incorporate teaching narrative persuasion