CRIME IN FILMS AND LITERATURE: "THE LETTER"

Recently, I read “The Letter,” the 1926 short story by W. Somerset Maugham. I have seen the 1940 movie directed by William Wyler and starring Bette Davis, which adapted the story for the screen. The story had previously been filmed in 1929, starring Jeanne Eagels, the tragic actress who soon died from drug use. 

Before that, Maugham had written it as a play. It was a hit in London (starring Gladys Cooper) and Broadway (Katharine Cornell). It has been revived several times. Other film versions have been produced over the years in many languages: French, of course, German, Spanish, Italian, and as late as 1987, in Russian. American and British television networks have aired several productions, dating from the 1950’s.  

The story is set in the British colony of Malaya. Howard Joyce is a lawyer. He and his wife are friends with the Crosbies, Robert and Leslie. Robert owns and runs a rubber plantation. His apparently dutiful English wife, Leslie, stays in their home and does needle work while her husband is often away on business.

One night, Leslie shoots and kills a neighbor, Geoff Hammond, who, she says, tried to rape her. He had come to the house, unbidden, apparently drunk, and had suddenly and without warning, molested her. She had grabbed a pistol that her husband had left for her protection from natives, and shot him in self-defense.

The lawyer thinks he has a fairly good case for acquittal of a sympathetic woman. The one element of the crime that he worries about is that she had emptied the chamber, shooting her assailant not once but six times, each one a likely fatal round. Still, her story is coherent and consistent, and so he is confident.

Joyce worries that the number of shots fired diminishes self-defense. The law permits one to use only that amount of force needed to resist bodily harm. Yet, in our time, the law certainly would recognize that the panic of the situation understandably would cause a woman to keep firing the weapon, and that would not weaken the self-defense claim.

A factor in her favor is Hammond’s reputation. Although he had been well liked as an amusing fellow Englishman, he was lately rumored to be living with a Chinese woman. Among the smug tight-knit English community, this was frowned upon, a sign of weak character. It was sure to affect the attitudes of judge, prosecutor and jury. It fit well into Leslie’s explanation that she and her husband had dropped him as a guest and friend when his drinking and behavior became intolerable.

Then, Joyce’s clerk, a young Chinese man, shows Joyce a copy of a letter supposedly written by Leslie Crosbie to Hammond, asking him in emotional and intimate language to come to her house that night. The person who has the original is willing sell it for a great deal of money. Joyce is noncommittal but probes Leslie about it. At first she denies writing any such letter, sticks to her story. But she sees the potential damage, and urges her lawyer to buy it. She suggests that he ask her husband for the money.

Eventually, she admits that the letter is authentic, but she says she only wanted Hammond’s advice about a gun she intended to buy for Robert’s birthday. After the shooting, she had forgotten about it, but then was afraid to admit it because of how it appeared.

Joyce is dubious about this, and has ethical qualms about suppressing evidence. But as his friend’s life is in his hands, he agrees to buy the letter. He tells Robert that he needs the money. Robert at first doesn’t seem to understand the full import, and is so trusting and loving of his wife that he agrees to pay the ransom.

The letter is bought, suppressed and Leslie is acquitted. Robert then reveals that he didn’t believe her fallback story about the gun, especially because that night he had gone out to buy a gun and had run into Hammond and told him about it.

In the end, Leslie confesses that she and Hammond had been lovers for years. They had stolen many hours together, whenever her husband was away, or distracted. Then, about a year ago, Hammond had cooled toward her.

She heard about his living with the Chinese woman. She tolerated it for a while, but he found more excuses not to see Leslie. She became frantic; she wrote the letter begging him to come to her. When he did, he told her that he was ending their affair. He married his Chinese woman and loved her and despised and pitied Leslie. She clutched at him as he left, and he threw her down. She grabbed the gun and shot him in rage. She thought he had burnt this letter, as they each had done so many times before. But his wife had found it and wanted payback.

In the story and play, that is the end. Robert and Leslie go on, perhaps not as before, but they do endure. The 1940 script, written by Howard Koch (who had written the script for Orson Welles’ radio broadcast of “War of The Worlds”) ends with Hollywood production code justice: the Chinese wife (played by exotic looking, but not Asian Gail Sondergard) stabs Leslie in the moonlit garden.

We know from reading the screens of our favorite films and TV shows, that many fictional stories are “based on true events.” This is especially true of stories that involve crimes.

Maugham based “The Letter” on a notorious case he knew about from his travels in Asia. In 1911, a Eurasian woman named Ethel Proudlock was convicted by a judge of murder that was similar to the one in the story. She had emptied a revolver into the body of a man who she claimed had tried to rape her while her husband dined with friends. Apparently Ethel’s testimony was disbelieved and she was sentenced to death, although she was soon pardoned after pleas from her husband and others.

Maugham changed some of the elements for dramatic purpose and others for thematic reasons. Certainly he saw it as an example of the ills of the British colonial system, the hypocrisy of the colonial society, particularly its racism. Leslie is an Englishwoman, not a Eurasian, and the man she shot had violated a social code by marrying out of his race, so she is acquitted of the crime.

The element of the lawyer’s ethical quandary is one that interests me. Joyce is a decent, moral man, who takes his profession seriously. He accepts the burden of defending his client and wants to save her life. When she asks him if he believes her innocence, he hesitates, but gives her the professional answer that I have given many times. It is not his role to judge, but to state the case for the defense in the most favorable light that the evidence permits.

But when he must choose between his ethics and his client’s welfare, he decides to suppress the inculpatory evidence. He does this fully aware that he is violating one of the sacred rules of law and that if discovered, he might forfeit his career and in fact be prosecuted and jailed for his crime. He also knows that he is concealing her guilt from his friend, her gullible and trusting husband. He allows her to convince him that Robert would be destroyed if he knew that she had deceived him. Robert, in his naïve faith in his loving wife and his need for her, gives Joyce evidence of his fragility.

A lawyer is trained to keep secrets. He alone carries the confidences of his clients and of many others. He keeps his own secrets apart from his closest loved ones—to protect them from the secrets that are his burden.

When a lawyer comes upon evidence that might hurt his client, it raises serious problems. The first duty of a defense lawyer is to serve his client’s interests. Anything communicated between client and counsel is privileged, protected from exposure. The societal purpose of this idea is to allow a free exchange of information between the two. If the client thinks the lawyer will disclose incriminating info, he will not disclose it to his lawyer.

The issue becomes complicated with physical evidence. If it is the gun or other “instrumentality” of the crime, the rules prohibit the lawyer from destroying or concealing it. But at the same time, he can’t hurt his client and he can’t become a witness against his client. The ethics opinions grapple with this dilemma, coming up with not wholly satisfactory compromises. The lawyer may refuse possession of the weapon, return it to where it was found. Or he may go to a judge and turn it over, obtaining an order that shields the source of the information from the prosecutor.

In this case, the letter is not an instrumentality of the crime, but it is evidence that incriminates the defendant by inference. It contradicts her story and raises the suspicion of the affair. It can be argued that once the lawyer came into possession of this evidence he had no duty to disclose it without a court order, subpoena, or discovery request. The notion is that the prosecution bears the burden of proof and must do so without the help of the defense. The defendant’s right to not incriminate himself includes his counsel.

But if the evidence was removed from its original location, thus depriving the prosecution the chance to find it, ethics opinions suggest that the lawyer has a duty to put it back where it was found.

What would happen if the lawyer suppressed the letter, and then the victim’s wife turned around and told the prosecutor about it? In the racial atmosphere, they may not have believed her. But they might have demanded the lawyer turn over the letter. Would he compound his crime by denying its

existence? There was also the clerk who brokered the deal. And what of the husband? Would he keep the secret forever?

"Compassionate Capital Punishment" Oxymoronic doublethink

The Ethicist column of The New York Times recently contained the following question under the headline “Compassionate Capital Punishment.”

Is it ethical for a physician to participate in capital punishment in order to provide a less painful execution than would otherwise be performed? 

A physician who oversees a state’s lethal injection program argues that these “patients” are going to be executed anyway. His professional responsibility is to see that it is done humanely.

Chuck Klosterman, who writes the column, had some trouble with the issue. He opined that if the doctor believed capital punishment as a principle was ethical, then it was arguably acceptable for him to feel ethically bound to help make its conduct more humane.

However, if the doctor’s position is that he believes capital punishment is ethically wrong, but he knows it will still happen regardless of his involvement, the issue remains whether his participation might then be justified because if these people will die anyway, isn’t it ethical to use your medical ability to make the inevitable less painful?

Klosterman concludes, with some equivocation, that participation in an unethical practice on the grounds that it will happen anyway over your objection is wrong. 

He never mentions similar ethical situations physicians have historically faced. 

The most common is assisted suicide and the closely associated compromise of allowing a terminally ill patient to expire without “heroic” medical interference with the natural progression of death. 

While the traditional strict view was that a physician was bound to make every effort to preserve any and all living human beings, the modern view is that when the “quality of life” has so diminished,  at some point — and the consensus at least considers the clearly terminal crisis to be that point — ethics permit, and indeed may require the cessation of measures to preserve life. 

The doctor’s duty then is to provide relief from pain, even if that relief through increasing doses of powerful drugs, shortens “life.” 

For most contemporary medical ethicists, this issue is separate from that of assisted suicide.  But for many others, the additional question of assisted suicide, which is the next short step, is also entering the mainstream as an arguably permissible ethical choice. 

Capital punishment is dissimilar from the plight of a “terminal” patient in at least one important way. From a medical standpoint, the subject is not “terminal.” There is no illness or injury that would lead to an imminent or even an inevitable death. In fact, the “patient” for whom the physician is providing the “humane” death is not ill or injured. He or she is an otherwise healthy person who, if not executed by order of the state, might live many more years without physical pain. 

The emotional pain of guilt and remorse is another issue entirely. Some may believe that it is merciful to relieve criminals from the angst of living with such guilt by terminating their lives in a “humane” manner. Considering the large number of suicides on death rows there may be some merit to this argument, but it is certainly not the law’s purpose nor is it at the mainstream of the arguments supporting physician assisted executions. 

Another example from history is the role of medical personnel in the Holocaust. Many of those who participated in the mass executions of millions in the gas chambers argued (at least retroactively) that they were assisting already doomed people to die “peacefully” — that is, without “excessive violence” or “anxiety.” Physicians, scientists, guards, and collaborators within the camps later made this argument when confronted with their culpability. 

Physicians who performed gruesome experiments on prisoners rationalized their actions by saying that these people were doomed and their “sacrifice” might save future lives. 

My question is whether the “Ethicist” would consider the actions of these doctors acceptable as long as they really believed that the genocide was ethical “in principle.” In other words, a committed Nazi such as Dr. Mengele might be, under this reasoning, acting ethically, by “euthanizing” the disabled, mentally ill, or others condemned as “subhumans” according to Nazi medical theory that doing so was beneficial to the “race.” As long as their terminating was done in a “humane” way, of course.

When it comes to the issue of doctors participating in capital punishment today, my next question is whether, by using their skills to reduce the pain of the execution for the condemned prisoner, they are deceiving themselves into believing that their actions are “humane.” 

It brings into question the whole concept of the “painless” execution. A judge recently wrote that the search for the mixture of lethal drugs that will kill without pain is wrongheaded. The goal of  the death penalty is to punish, and to deter. 

It is by nature a brutal act which the society decrees is in its best interest to commit because of the brutality of the crime for which it is designed to punish. 

Thus, why shouldn’t it be painful? The Eighth Amendment’s ban on “cruel and unusual punishments” was clearly intended by the Enlightenment Era Founders to include traditional unenlightened practices of torture and other forms of execution (drawing and quartering, keelhauling, disemboweling, etc.) which intentionally prolonged agony as a punishment to the condemned and a lesson to others. 

Hanging was the commonly accepted “humane” form of the time and was followed by the technological advance of electrocution and later the gas chamber and now, lethal injection. The appellate courts have pointed to those changes as efforts to spare the condemned from cruelty which they equated with prolonged infliction of pain, even if unintended. 

In reality, the pain of the condemned, though it is the constitutional rationale, is really less critical for many than the squeamish sensibilities of witnesses, the media, and the public. 

When public hangings were a form of mass entertainment, frequent miscalculations regarding physics principles regarding the weight vs distance of fall resulted in bodies writhing for ages before suffocating or the more gruesome alternative: the loud snap of the spinal cord and complete or partial decapitation. Either event turned stomachs in crowds so that they could not enjoy the treats that were being sold. Hangings were thus moved into the enclosed yards of jails and conducted at dawn — to reduce the embarrassment of officials. 

Electrocutions were always performed in relative privacy, behind the walls of prisons, and before a select group of witnesses who were banned from photographing the often grisly event. Popping eyeballs, bleeding orifices, steam and smoke rising, the smell of burning flesh, the writhing of dying bodies, all were commonly reported by the appalled witnesses. 

Death in the gas chamber was described often in terms that might have pleased Edgar Allen Poe or Alfred Hitchcock. The gas pellet dropped into the acid, the fumes rise, the condemned tries to hold his breath, but eventually inhales, writhes, turns green, shudders, faints, awakens, moans, stops. 

And now lethal injection is proven to be no less gruesome — for the witness as much as for the condemned. 

European pharmaceutical companies have balked at providing their products to be used for this purpose. Whether their ethics or business senses are offended by it is a separate question. Some might consider the association of the concept of ethics with drug companies as foreign. 

My concern is with the doctors who deem it their ethical duty to administer the lethal doses in such a system. How many would agree to be state executioner if they discovered afterward that the person they killed was shown to have been innocent. 

This has now happened often enough that it is not merely hypothetical.  

DA's I Know And Love

I spent the day in one of the LA County Branch courts and ran across a few of the DA’s I used to try cases against in the old days.

Back then when I was in the same courts every day for years, I got to know which DA’s were the “good guys” and which I had to step around. They got to know that I was okay too and it was a good working relationship. The system worked better than it would have — far better than it works today when nobody trusts anyone.

My DA friends were all riled up about a US Supreme Court decision that was reported today in the LA Times. No, it wasn’t a reversal of a guilty criminal’s conviction on a technicality. It was much worse than that in their eyes.

I agree with them - and I’m proud of my friends for being so pissed off.

A few years ago, a DA in Pomona was assigned to prosecute a case based on a search warrant. The defense lawyer told the DA that the affidavit supporting the warrant was based on a lie - the officer could not have seen what he claimed to see on the premises. The DA did his job and went to see for himself. He came to the same conclusion and it bothered him. He wrote a memo to his superior stating his doubts about the officer’s veracity.

The superior at first agreed with his deputy DA, but when pressed by the police who were offended, backed off and ordered the case to proceed. The doubting DA was removed from the case, and eventually testified for the defense to his own observations when he was subpoenaed.

Eventually, the DA was disciplined by his superiors. He was transferred to misdemeanor prosecutions, denied promotion, and sent to a courthouse that was further away from his home.

He sued his boss, LADA Gil Garcetti. Gil had been in trouble with his troops because they felt his policies were arrogant, elitist, and unsupportive of the rank and file. He had a reputation for punishing critics and placing loyal cronies in high positions.

The US Supreme Court was torn between two lines of precedents. In the 1960's, the Warren court had limited the power of governmental agencies to discipline employees who spoke out on issues “of public concern” based on the 1st Amendment. But in the 1980's, the Court had upheld the power of government to discipline employees for violations of internal policies. These two lines of precedent meant that a decision would rest on personal philosophy of each of the justices.

When Justice O’Connor retired, the vote was 4-4. Now it was reargued after Alito was affirmed and the vote was now 5-4, ruling that the DA had the power to discipline the deputy for his violation of policy.

The other majority votes were Scalia, Thomas, Kennedy, and the new CJ Roberts. The Court skirted the Free Speech issue by implying that an employee could not be disciplined if he went to the press.

Garcetti had been voted out of office - not because he was unpopular with his deputies - but because he “lost” the OJ Simpson case. He was replaced by Steve Cooley, who had always been one of the good guys. Cooley was now quoted by the Times as praising the decision because you can’t run an office when a deputy can run to federal court every time you discipline him for deviating from policy.

Steve is now seen by many DA’s as no better than Gil - a power mad, paranoid bureaucrat. Say it ain’t so, Stevie.

The trial DA’s in the trenches - at least the “old school” ones who I know and respect - were upset because they view their profession as one of high responsibility. They are aware of their power over the individuals they prosecute and try to walk the same line good defense lawyers do - try to win but within the rules.

A DA who doubts the truth of his witnesses, especially police officers, has a duty to speak out - at least to his superiors. The effect of the decision in this case is to send a message that scruples will be punished.

There is always pressure put on prosecutors to “support” the police, who have made the arrests they are prosecuting. Police are always looking to blame the DA when they refuse to file a case because of a “bad search” or slipshod investigation, accusing them of lack of aggressive prosecution of criminals.

DA’s aren’t rewarded for timidity or leniency, but for winning - especially winning “hard cases” where the evidence is thin. The DA who asserts his oath to only prosecute cases he had confidence in is often looked on in this culture as a wimp.

One of the DA’s I talked to pointed out that the Rampart scandal was touched off by a memo by a deputy DA to his superior about police misconduct. “So, we’re supposed to tell the story to a newspaper, but not our own bosses? Who has the guts to do that?”