'Think about it," he said.   He detailed a scenario in which a man brutally beats a woman to death and dumps her body by a highway.  He's convicted of the crime and sentenced to death.  Later, his lawyers push for a DNA test, and someone else's DNA is discovered from the vaginal swabs taken by the medical examiner and sealed in the case file.  The priosoner is set free. 

But let's say the woman had consensual sex before she was raped, and this accounts for the DNA discovered in her vagina.  And for some reason, the real killer - the man originally convicted - left none behind on her body at all.

"Remember," my professor said, "This guy was convicted on all sorts of evidence, and the DNA had nothing to do with it."  Maybe the state had toolmarks from the murder weapon; glass fragments from a broken window; tire tracks; or a mountain of circumstantial evidence. 

My professor went on to concede that, of course, many innocent people are freed with DNA.  But many guilty ones are freed as well.  Chilling. 

A million such scenarios can be imagined. 

Maybe the evidence we have come to know intimately - through memories and stories, all of it circumstantial, I suppose - can stand as strong as anything else.  Maybe we are quick to exonerate, when we should instead remember to weigh the scales of evidence against one another.  What is a metaphorical DNA match against the toolmarks left on your heart? 

If you have lived through a tornado in the Iowa countryside, you know what pitch-darkness means.  You know the deep black of the storm cellar.  No matter how long you stay down there, inside a cold hole in the lawn, your eyes do not adjust.  You start to doubt what you hear and feel: your grandmother's breath on your neck, as she rocks you in her lap; your sister's whimpering cries; the funnel as it passes overhead.

But the thing is, there is no such thing as pitch darkness.  In all darkness, there is light we cannot see.  Light outside the visible spectrum. 

If there is darkness, it resides somewhere else: inside our own eyes, our own bodies.

All of this occurs to me as I learn about bitemark evidence. 

Imagine the darkness inside a bitemark or bruise: the darkness of the blood and ripped tissue, but also, the darkness of the person who clamped his jaw around a hand, a foot, a shoulder.  And yet, the tooth marks and bruises appear dark not for lack of light, but because light penetrating the epidermis is being absorbed. 

There is a light that actually emphasizes the dark, making an injury more visible and distinct: infrared.

Infrared light has a long wavelength.  Long wavelengths travel deeper into the dermal layer, illuminating injuries in the lower skin layers - injuries our eyes cannot detect in normal light.  Forensic scientists use infrared photography to reveal the bruises we otherwise would not see. 

Which illuminates again the importance of process, how we need not just light, but the right kind of light, in order to see. 

Why not file an appeal?  Think back on the writing process: look for reversible error.  What evidence should have been excluded/included?  What decisions were unfair? 

Grant yourself a new trial - a second chance at the process.  A chance to do justice to your idea.

Obviously this is not a precise metaphor.  In reality, a legal appeal would seek to reverse the jury's decision or win a new trial.  Lawyers would take the case to a higher court.   

In writing, you can never really reverse how readers feel or react.  And of course, there are no set rules to follow - no established process - for writing, as there are for criminal trials.  No higher court, either. 

But think about how you could adapt the idea to writing.  Would the appeal be on your behalf? Or a character in the story?  The story itself?  How would you plea the case?  Would you look to precedent established by other writers or writing teachers?  What part of the process was most weak?  What part was unfair? 

I will be writing an appeal for one of my rough works and posting it here in the future. 

Now.  This is not to say that I never draw moral, legal, or ethical lines in the sand.   Some might be surprised at my starkly conservative stances on some issues, or at my strong feelings about ethics in writing (based on some hard lessons over the years.)   Especially when people are at risk of being harmed. 

When I say I want unclear verdicts for my writing, I really just mean that I want my readers to feel challenged.  I want them to question and think.  To be surprised at how tough it is to figure out the truth - to be surprised at themselves.   

This is also what I meant when I said - years ago, when I laid out my theories on writing as a forensic science and art - that it is my duty to both meet the burden of proof and turn around and destroy the whole case.  I am prosecution and defense.  I wrestle with myself.  My writing is adversarial.  It fights with itself. 

Just look at the Michael Jackson jurors, and the statements they made, post-verdict:

• A few jurors believe Jackson may have molested children in the past, but there was just not enough evidence in this case, which is all they were supposed to judge.  "We had our suspicions, but we couldn't judge on that because it wasn't what we were there to do," said juror Eleanor Cook, according to the Associated Press.
• Some, like Raymond Hultman, made a distinction between total "innocence" and being found "not guilty."   (Yes, there is a distinction.  I can think of many trials where I would have voted not guilty, even though I did not find the defendent innocent.  It all comes down to reasonable doubt, the evidence presented, and a strong defense.)
• Many jurors took offense at the mother.  She snapped her fingers at the jury.  She allowed her child to sleep with a 42-year-old man she did not even know.   Her disheveled appearance came off as pure theater - an attempt to look "pitiful" as Cook put it (again quoted in the Associated Press.)
• The fact that the accuser and his mother visited an attorney & psychologist before reporting the molestation to the police tainted their credibility - especially given their history of lawsuits, perjury, welfare fraud, and celebrity gold-digging.

So what evidence actually worked for the prosecution?  A very short list:  the videotaped interview between the accuser and police; and the testimony from two other boys.  But the testimony from other boys was not supposed to be considered for guilt - only for a pattern of behavior.  And the videotaped interview did not seem credible in its full context.

Think about this in terms of revision.  How might the story change if the characters used different gestures?  If the mother was consistent about hair and makeup, so she did not seem to elicit pity?  How might it change if certain witnesses were cut alltogether?  Or if the accusers had not done certain things? (Although only in fiction can we alter events like that ... )

A few definitions:

• a speaker or voice whose vision or version of the details of a story are consciously or unconsciously deceiving; such a narrator's version is usually subtly undermined by details in the story or the reader's general knowledge of facts outside the story. If, for example, the narrator were to tell you that Columbus was Spanish and that he discovered America in the fourteenth century when his ship the Golden Hind landed on the coast of Florida near present-day Gainesville, you might not trust other things he tells you. www.wwnorton.com/introlit/glossary.htm
• a narrator who misinterprets the story due to prejudice, madness, etc. www.iolani.org/usacad_eng_eng10ssterms_cw9404.htm
• a narrator who tells the story from a biased, erroneous perspective wps.ablongman.com/wps/media/objects/130/133428/glossary.html
• A narrator who is not clear on the plot himself or other characters and therefore is unable to support the views intended by the author.  www.baylorschool.org/academics/english/studentwork/stover/toolbox/fiction.html
• In literature and film, an unreliable narrator is a first-person narrator, the credibility of whose point of view is seriously compromised, possibly by psychological instability or powerful bias. Many novels are narrated by children, whose inexperience makes them inherently unreliable. In The Adventures of Huckleberry Finn, for example, Huck's inexperience leads him to make overly charitable judgments about the characters in the novel; in contrast, Holden Caulfield, in The Catcher in the Rye, en.wikipedia.org/wiki/Unreliable_narrato

Quite a list to contemplate:  inexperience, innocence, ignorance, bias, compromised cognitive or emotional capacity, insanity, deceit, and confusion.  Any one (or more) of these qualities can make a narrator's story unreliable. 

Writers use this device to create tension, raise questions, reveal or illuiminate characters, make statements about the human condition, invite reader participation, and more.   The key to this device: intention.  The writer must know the character is unreliable and use the device for good reason.  (With perhaps the possible exception of a riveting memoir, in which the narrator/writer is obviously unreliable - and does not realize it - but the unreliability somehow illuminates an issue or raises questions.  But even then, pretty tricky.)

The problem with the Michael Jackson case is that so many of the witnesses are unreliable it is impossible to know who - or what - to believe. 

Last week, the mother exercised her Fifth Amendment right against self-incrimination, protecting herself against cross-examination questions about alleged welfare fraud in 2001-2003.   Jurors were informed of her decision.   Since they ultimately decide who is believable and who is not, they can consider this when evaluating her testimony.  If she lied before, will she lie now?  Or more specifically:  If she lied in order to obtain money before, will she lie again for the same reason?  Will she sue Michael Jackson for money in the future?

(On a side note:  This problem of a witness invoking 5th Amendment rights and still being allowed to testify on other matters rings all sorts of ethical & legal alarm bells, at least in my mind.  I will deal with that question in a post later today.  Not that I think Jackson  is innocent.  But I believe trials should use the most rigorous process, with complete integrity.)

But prosecutors have produced corroborating evidence in the form of videos, tape recordings, and eyewitness testimony.  This evidence should make the mother more believable.  Has it?  Can evidence overcome an unreliable narrator?  Should it? 

For example, when the mother says Jackson thugs warned of threats against her life & told her she must move to Brazil for her own safety, she sounds like a paranoid nut.  Until you see evidence that appears to back up her story.

And when she says Jackson co-conspirators followed her children with video cameras, you cannot help but wonder if she exaggerates.  Until you see surveillance video of her daughter on her way to her grandmother's house.  (There are also videos of the mother, as she rides in a car with a Jackson associate. Creepy, to say the least.)

The prosecution has produced corroboration of all sorts: papers signing the children out of school; travel documents; recordings.

But as I have mentioned before, any piece of evidence is open to interpretation.  Just because the prosecution produces evidence does not mean it proves their charges.  Can we trust the story this mother has built up around those videos, recordings, and documents?   What if an alternate interpretation proves just as believable (or unbelievable)? 

And what if another witness - equally unreliable - provides another story for the same pieces of evidence?  Who do we believe when nobody can be believed?

After all, the mother has called her own observations into question more than once:  "I thought it was me.  I thought I was seeing things.  Everybody was asleep," she said, explaining why she let her son sleep with Jackson, even after she witnessed him licking her son's head "over and over."

She thought she was seeing things?  When else was she seeing things?

And she has already invoked her 5th Amendment rights on the welfare fraud allegations.

And there is that famous rebuttal video, in which she praises Michael Jackson (which she now claims was scripted & forced.) 

This kind of tension begs for audience involvement.  We turn it all over in our minds, wonder whether to believe such a witness, and whether the evidence corroborates her story or simply complicates it.  The mother most definitely fits the definition of unreliable narrator: a known liar, possibly paranoid, with possible ulterior motives and a heaping helping of bias (she refuses to acknowledge her own indulgences, shortcomings, and mistakes, which hurts more than it helps.) 

We can use this kind of tension in creative writing, too.  Through the introduction of corroborating & opposing evidence, conflicting interpretations & unreliable narrators/witnesses, we can invite readers into the process.

But is there a point at which this device goes too far?  Would we want to create a story in which nobody can be believed?  What does that accomplish?  When would that work for - rather than against - our intentions?  More on this question - and the ethical issues around the 5th Amendment stuff - soon. 

Take the accuser's mother.  Her story is almost as bizarre as the King of Pop and his thousand noses: false imprisonment at Neverland; threats against her life; constant video surveillance; thugs at her door; head licking.  Her testimony makes her look like a paranoid nutcase.  She claims Michael Jackson held her at Neverland against her will, even though she left and returned on more than one occasion. While "imprisoned," she luxuriated in expensive spa treatments and shopped at exclusive boutiques, all on Jackson's tab.  (If prison feels that good, hell, sign me up.)

Jackson allegedly licked her son's head, but she allowed the two to share a bed in spite of it.  Why?  Because she simply did not believe her own eyes. 

Toss in her history of purgery and welfare fraud, and reasonable doubts begin to blossom.

Then there is the problem of the rebuttal video, made after the infamous "Living with Michael Jackson" documentary made him look like a pedophile creep.  On the tape, the accuser and his mother praise Jackson, even calling him "Daddy Michael."  According to the mother, Jackson thugs scripted the whole video, and she had no choice but to take the starring role.

So who do jurors believe? 

Prosecutors have produced corroborating evidence for almost every one of the mother's claims.  They have surveillance videos, audiotapes, and documents to back up every charge.  Jurors watched video tapes of the accuser's mother as she packed up her apartment to move.  They watched as her daughter looked directly into a camera lens and darted away, obviously afraid.  They listened to audio of Jackson guards.   

On the other hand, the defense has receipts.  The mother says she received a leg wax, but the receipt shows a full body treatment.   Is she minimizing the luxuries in order to look better?

Sometimes, even the corroborating evidence fails to make witnesses credible. (Or put another way: an incredible witness makes the evidence incredible, too.)  When this happens, the tension builds and builds without relief.   I will spend the next couple of posts exploring the unreliable narrator  & corroborating evidence.

According to the Wall Street Journal, jurors believed neither Mr. Ebbers nor key prosecution witness Scott Sullivan (who so obviously exchanged his testimony for a lower sentence in his own case):

"[Ebbers] was the man who was in charge.  It's just kind of hard to sit there and think he didn't know what was going on," said Vincent Wright, juror No. 7.  (As quoted in the Wall Street Journal.)

Read that carefully.   The juror did not say: The evidence proved Ebbers guilty beyond a reasonable doubt.  He said:  It is hard to believe he did not do it, because of who he is.  Ebbers, after all, was a notorious micro-manager.   That much was proved at trial.

This is especially important when you know the government had no direct evidence: no emails (Ebbers never used email); no letters; no taped conversations.  All they had was a common-sense notion of what a CEO ought to know, and the word of a not-terribly-reliable snitch.   

Which is not to say the government lacked plenty of good circumstantial evidence. Or that the jurors were wrong.  Heck, I always thought Ebbers was guilty, too.

My point here is simply that character and evidence can sometimes be one and the same. 

Of course, this carries its own dangers.  I will return to this issue later, looking at a series of cases where this changed & failed to change jury decisions.