by Philip Meyer
Didion locates herself as a character who imagines that her own life is both “simple and sweet.” The counterpoint to this simplicity is an interior setting of psychic dislocation and disjunctions. There are “rumors” and “stories.” And there is a “mystical flirtation with the idea of ‘sin’—this sense that it was possible to go ‘too far,’ and that many people were doing it.” The personal tone manifests aspects of a darker collective psyche: “A demented and seductive vortical dimension was building in the community. The jitters were setting in.” The interior observations color the exterior landscape as if in anticipation of what is coming: “The dogs barked every night and the moon was always full.”
Here, midparagraph, Didion shifts from describing the surfaces to intimations of dark future events that will occur; these are echoes or reverberations from events that have already taken place elsewhere in the city. These events bounce off of, or resonate from, the settings depicted earlier in the paragraph, setting up the story that will follow. First, Didion watches herself sitting passively, vulnerable, “in the shallow end of my sister-in-law’s swimming pool in Beverly Hills” when the phone call comes in “about the murders at Sharon Tate Polanski’s house on Cielo Drive.” More dark fragments surface in the descriptions and leak out into the world. One caller says, “hoods,” the next “chains.” One says, “twenty dead, no, twelve, ten, eighteen.” There are speculations on motives: “[b]lack masses were imagined, and bad trips blamed.” There is, however, one psychological constant about the violent events that have taken place on this strangely configured and unfamiliar landscape—“that no one was surprised.”
What is it that lawyers may learn from reading a description or depiction of setting so personal and idiosyncratic as Didion’s? Didion’s poetic techniques seem far removed from the functional descriptions of settings that lawyers tend to employ. That is, rather than building up the world “slowly and completely,” Didion “lights up” the scene “by lightning flashes.”5 Didion depicts her narrative landscape or environment through a composite of sometimes abrupt and unexpected sensate fragments from her personal recollections. This technique draws her reader onto a shared stage, an internal landscape or setting where the reader can more fully experience, rather than comprehend intellectually, the events taking place. This isn’t a strategy that is typically attempted by lawyers in legal storytelling. Or is it?
Let’s contrast Didion’s first-person composite of sensate fragments evoking a dangerous landscape with the depiction of dangerous settings in legal storytelling practice. The judicial opinions excerpted in the casebook in my criminal law course provide a laboratory filled with these places, though these settings and environments are seldom intentionally foregrounded or depicted with Didion’s artistic flare.
In Rusk v. State,6 defendant Edward Salvatore Rusk successfully appealed from his trial court conviction for rape to the Maryland Court of Special Appeals. The court determined that there was insufficient evidence in the trial record to uphold Rusk’s conviction for rape. The majority opinion turns on the legal issue of whether Rusk’s “words or actions created in the mind of the victim a reasonable fear that if she resisted, he would have harmed her, or that faced with such resistance, he would have used force to overcome it.”7 The majority’s version of the story emphasizes ambiguous evidence about whether Rusk used force or threat of force sufficient to compel the victim to have sex with him.8
The dissenting opinion critiques the majority’s story and presents a retelling of its own, reframing events against a different background. In this second telling, a sequence of dangerous places directly influences the plot’s unfolding. Here is an excerpt from the dissenting opinion:
Upon this basis, the evidence against appellant must be considered. Judge Thompson recounts most, but not quite all, of the victim’s story. The victim I’ll call her Pat attended a high school reunion. She had arranged to meet her girlfriend Terry there. The reunion was over at 9:00, and Terry asked Pat to accompany her to Fell’s Point. Pat had gone to Fell’s Point with Terry on a few prior occasions, explaining in court: “I’ve never met anybody (there) I’ve gone out with. I met people in general, talking in conversation, most of the time people that Terry knew, not that I have gone down there, and met people as dates.” She agreed to go, but first called her mother, who was babysitting with Pat’s two-year old son, to tell her that she was going with Terry to Fell’s Point, and that she would not be home late. It was just after 9:00 when Pat and Terry, in their separate cars, left for Fell’s Point, alone.
They went to a place called Helen’s and had one drink. They stayed an hour or so and then walked down to another place (where they had another drink), stayed about a half hour there, and went to a third place. Up to this point, Pat conversed only with Terry, and did not strike up any other acquaintanceships. Pat and Terry were standing against a wall when appellant came over and said hello to Terry, who was conversing with someone else at the time. Appellant then began to talk with Pat. They were both separated, they both had young children; and they spoke about those things. Pat said that she had been ready to leave when appellant came on the scene, and that she only talked with him for five or ten minutes. It was then about midnight. Pat had to get up with her baby in the morning and did not want to stay out late.
Terry wasn’t ready to leave. As Pat was preparing to go, appellant asked if she would drop him off on her way home. She agreed because she thought he was a friend of Terry’s. She told him, however, as they walked to her car, “I’m just giving a ride home, you know, as a friend, not anything to be, you know, thought of other than a ride.” He agreed to that condition.
Pat was completely unfamiliar with appellant’s neighborhood. She had no idea where she was. When she pulled up to where appellant said he lived, she put the car in park, but left the engine running. She said to appellant, “Well, here, you know, you are home.” Appellant then asked Pat to come up with him and she refused. He persisted in his request, as did she in her refusal. She told him that even if she wanted to come up, she dared not do so. She was separated and it might cause marital problems for her. Finally, he reached over, turned off the ignition, took her keys, got out of the car, came around to her side, opened the door, and said to her, “Now, will you come up?”
It was at this point that Pat followed appellant to his apartment, and it is at this point that the majority of this Court begins to substitute its judgment for that of the trial court and jury. We know nothing about Pat and appellant. We don’t know how big they are, what they look like, what their life experiences have been. We don’t know if appellant is larger or smaller than she, stronger or weaker. We don’t know what the inflection was in his voice as he dangled her car keys in front of her. We can’t tell whether this was in a jocular vein or a truly threatening one. We have no idea what his mannerisms were. The trial judge and the jury could discern some of these things, of course, because they could observe the two people in court and could listen to what they said and how they said it. But all we know is that, between midnight and 1:00 a. m., in a neighborhood that was strange to Pat, appellant took her car keys, demanded that she accompany him, and most assuredly implied that unless she did so, at the very least, she might be stranded.
Now, let us interrupt the tale for a minute and consider the situation. Pat did not honk the horn; she did not scream; she did not try to run away. Why, she was asked. “I was scared. I didn’t think at the time what to do.” Later, on cross-examination:
At that point, because I was scared, because he had my car keys. I didn’t know what to do. I was someplace I didn’t even know where I was. It was in the city. I didn’t know whether to run. I really didn’t think, at that point, what to do. Now, I know that I should have blown the horn. I should have run. There were a million things I could have done. I was scared, at that point, and I didn’t do any of them.
What, counsel asked, was she afraid of? “Him,” she replied. What was she scared that he was going t
o do? “Rape me, but I didn’t say that. It was the way he looked at me, and said, ‘Come on up, come on up;’ and when he took the keys, I knew that was wrong. I just didn’t say, are you going to rape me.”
So Pat accompanied appellant to his apartment. As Judge Thompson points out, appellant left her in his apartment for a few minutes. Although there was evidence of a telephone in the room, Pat said that, at the time, she didn’t notice one. When appellant returned, he turned off the light and sat on the bed. Pat was in a chair. She testified: “I asked him if I could leave, that I wanted to go home, and I didn’t want to come up. I said, ‘Now, I came up. Can I go?’” Appellant, who, of course, still had her keys, said that he wanted her to stay. He told her to get on the bed with him, and, in fact, took her arms and pulled her on to the bed. He then started to undress her; he removed her blouse and bra and unzipped her pants. At his direction, she removed his clothes. She then said:
I was still begging him to please let, you know, let me leave. I said, “you can get a lot of other girls down there, for what you want,” and he just kept saying, “no;” and then I was really scared, because I can’t describe, you know, what was said. It was more the look in his eyes; and I said, at that point I didn’t know what to say; and I said, “If I do what you want, will you let me go without killing me?” Because I didn’t know, at that point, what he was going to do; and I started to cry; and when I did, he put his hands on my throat, and started lightly to choke me; and I said, “If I do what you want, will you let me go?” And he said, yes, and at that time, I proceeded to do what he wanted me to.
He “made me perform oral sex, and then sexual intercourse.” Following that:
I asked him if I could leave now, and he said, “Yes;” and I got up and got dressed; and he got up and got dressed; and he walked me to my car, and asked if he could see me again; and I said, “Yes;” and he asked me for my telephone number; and I said, “No, I’ll see you down Fell’s Point sometime,” just so I could leave.9
If the settings and the environment are so important in this sequence of scenes (first, at the bar; second, in the parked car outside Rusk’s apartment; third, inside the apartment), why doesn’t the dissent further emphasize the victim’s vulnerability and fear by foregrounding the scene with vivid, descriptive details, akin to Didion’s narrative strategy? These details are available in the trial record of the victim’s testimony and, indeed, this testimony is cited in footnotes annotating the story. There are reasons for the selective use and frequent underinclusion of descriptive detail in depicting settings and environments in many legal stories, especially the stories told by appellate judges.
First, the conventions of judicial storytelling practice impose constraints on how appellate judges tell stories: judges seldom employ language (akin to Didion’s) that intentionally directs the reader’s attention to the artistic and narrative dimensions of their craft. Appellate judges typically profess that their decisions are limited to review of the legal—not factual—claims.
Second, legal decision making assigns causal significance and responsibility to the free will of individual actors; characters shape events into plots. Many law stories discount the significance of settings and environments external to the various actors, especially judicial stories about the guilt or innocence of actors and the punishments visited upon them.
Nevertheless, in a nicely understated way, the dissent’s critique of the majority’s story suggests how the victim, “Pat,” was affected by her surroundings (the setting or environment) and how defendant Rusk took advantage of these circumstances to compel Pat’s submission. In the selection and ordering of scenes, the dissent conveys a shadowy environment. It begins in the appropriately named Fell’s Point, a falling-off point where Pat meets Rusk in the bar. The dissent’s narrative then cuts to the dark and unfamiliar neighborhood where Rusk pulls the keys from the ignition of Pat’s car. Finally, the narrative turns to the bedroom of Rusk’s apartment. The bare-bones setting matches the intentional gaps in the physical and psychological depictions of Rusk and Pat. The powerful rhetorical message of the dissent’s narrative is centered not on what the majority opinion said but rather what it omitted from its retelling of events; these gaps in the narrative cannot be filled in accurately from the cold record of the trial—only the jury, who evaluated the credibility of the witnesses, weighed the evidence, and pieced together the fragments of the narrative, could begin to find and put into place the missing elements of the story.
III. More Dangerous Places Where Bad Things Happen: Use of Physical Descriptions and Factual Details to Create Complex Environments in W. G. Sebald’s The Emigrants and the Petitioners’ Briefs in Two Coerced Confession Cases
W. G. Sebald writes stories grounded in places and settings; his environments predominate and shape events, narrative outcomes, and the fates of characters within. Sebald travels in his books, vividly evoking places and settings. He supplements his descriptions with visual evidence, including photographs and sketches, pictures of family and relevant historical figures, and depictions of artifacts that document the authenticity and legitimacy of his observations and of his stories. He makes the images, settings, and the characters who inhabit these places come vividly alive in the mind of the reader. The foregrounding of setting and place invites digressions into personal memory and collective history. Setting is always the starting point and ending place for the story; Sebald’s art is a meditation on place.
In The Emigrants, for example, Sebald retraces the paths of four emigrants, whose stories are embedded in the landscapes or settings mapped by their journeys. Sebald reconstructs these characters’ stories through presentation of place; these environments are as alive as the characters who inhabit them.
For example, in one of the four narratives, Sebald retraces the picaresque journey of Sebald’s great-uncle Ambrose, a manservant, whose emigrant journey terminates in a sanatorium in upstate New York where Ambrose is treated for depression with a regimen of electroshock therapy.
Initially, this setting is depicted through the perceptions of a character named Dr. Abramsky, now retired. Many years earlier, Abramsky treated Uncle Ambrose as an assistant to a “Dr. Fahnstock,” who was the previous director of the sanatorium. Fahnstock, like Uncle Ambrose, is now long dead and the sanatorium is no longer operating. Ambrose had entered the sanatorium voluntarily and submitted to electroshock therapy to treat his depression. There are two interlocking descriptions of this setting and the practices of electroshock therapy within this institution. In the first, the practices at the sanatorium are described somewhat abstractly by the old doctor, Abramsky.
It was also remarkable how readily Ambrose submitted to shock treatment which, in the early Fifties, as I understood only later, really came close to torture and martyrdom. Other patients often had to be frogmarched to the treatment room, said Dr. Abramsky, but Ambrose would always be sitting on the stool outside the door at the appointed hour, leaning his head against the wall, eyes closed, waiting for what was in store for him.
In response to my request, Dr. Abramsky described shock treatment in greater detail. At the start of my career in psychiatry, he said, I was of the opinion that electrotherapy was a humane and effective form of treatment. As students we had been taught—and Fahnstock, in his stories about clinical practice, had repeatedly described in graphic terms—how in the old days, when pseudo-epileptic fits were induced by insulin, patients would be convulsed for minutes, seemingly on the point of death, their faces contorted and blue. Compared with this approach, the introduction of electro-shock treatment, which could be dispensed with greater precision and stopped immediately if the patient’s reaction was extreme, constituted a considerable step forward. In our view it seemed completely legitimate once sedatives and muscle relaxants began to be used in the early Fifties, to avoid the worst of the incidental injuries, such as dislocated shoulders or jaws, broken teeth, or other fractures. Given these broad improvements in shock therapy, Fahnstock, dismiss
ing my (alas) none too forceful objections with his characteristic lordliness, adopted what was known as the block method, a course of treatment advocated by the German psychiatrist Braunmühl, which not infrequently involved more than a hundred electric shocks at intervals of only a very few days. This would have been about six months before Ambrose joined us. Needless to say, when treatment was so frequent, there could be no question of proper documentation or assessment of the therapy; and that was what happened with your great-uncle too. Besides, said Dr. Abramsky, all of the material on file—the case histories and the medical records Dr. Fahnstock kept on a regular basis, albeit in a distinctly cursory fashion—have probably long since been eaten by the mice. They took over the madhouse when it was closed and have been multiplying without cease ever since; at all events, on nights when there is no wind blowing I can hear a constant scurrying and rustling in the dried-out shell of the building, and at times, when a full moon rises beyond the trees, I imagine I can hear the pathetic song of a thousand tiny upraised throats. Nowadays I place all my hope in the mice, and in the woodworm and deathwatch beetles. The sanatorium is creaking, and in places already caving in, and sooner or later they will bring about its collapse.10
What is there for the legal storyteller to see in Sebald’s initial description of shock treatments and depiction of the setting of the sanatorium in upstate New York? These two paragraphs introduce the reader to the use of electroshock at the sanatorium. Abramsky’s description is presented as a clinical abstraction. There is little physical detail in the initial description of the room, the practice itself, or the machinery employed in electroshock therapy.
Sebald uses the description as a set piece; it is not a complete scene or sequence of scenes in which the characters are actors in control of the actions on a stage. For example, there is only a single sentence about an individual character or identified actor: Abramsky recalls Uncle Ambrose as distinct from the other patients who had to be frogmarched into the room. Unlike other patients, Uncle Ambrose “would always be sitting on the stool outside the door at the appointed hour, leaning his head against the wall, eyes closed, waiting for what was in store for him.” After this vivid evocation of Ambrose, Sebald, through Abramsky’s point of view, describes the practice itself.