by Kim MacQueen, Steven Wallace

Page 53

A Cure for Night
By Justin Peacock
Reviewed by Kim MacQueen,
Associate Editor

As Joel Deveraux, the protagonist in Cure for Night, sinks his teeth into criminal defense work in Brooklyn, he thinks of a truism floated past him in law school: “A criminal trial is a search for the truth, but the defense lawyer isn’t a member of the search party.”

The quote sets the tone for Justin Peacock’s first book, an unconventional legal thriller that wants to expose the underside of criminal law. The defense attorneys populating Cure for Night often function less like defenders of truth than they do storytellers, spinning tales they hope juries will believe.

The problem is not that Deveraux and his spunky, attractive cohort and possible love interest lack energy or idealism – they’ve got plenty of both. They’re well-educated, thoughtful, and resourceful hard workers, and with their caseloads, they’d have to be. The problem, mostly, is the tricky navigation necessary in a seemingly set-up-to-fail justice system, building cases for clients who are ultimately better at working that system than they are.

Deveraux is new to the Brooklyn public defenders’ office, fresh from six months probation following a dizzying, drug-related fall from grace – he’s let go from his first job out of law school, at a prestigious white shoe firm, after the paralegal he’s been palling around with turns up dead of a heroin overdose in the firm’s bathroom. Not only does he carry the shame of that mistake with him to the Brooklyn courthouse every day, he also winces inwardly every time somebody asks why a Columbia graduate would waste his time doing arraignments in Brooklyn for a fraction of his former salary.

So it’s almost a breath of fresh air when he’s put on as second on a case defending a young, black pot dealer charged with the murder of a white Brooklyn college student. His character develops steadily and realistically from the novel’s opening day — “The day my life fell apart began like any other,” he begins — to its breathless conclusion (and though so many legal thrillers promise breathless conclusions, this one really does deliver).

Peacock is being compared to Richard Price for his command of inner-city lingo, as well as to Scott Turow. Cure for Night is a little more hard-bitten than your average “Law & Order” episode, but your readers of more run-of-the-mill legal novels are probably ready for it.

Cure for Night is available from Doubleday for $24.95; www.doubleday.com.

The Science of False Memory
By C.J. Brainerd and V.F. Reyna
Reviewed by Steven Wallace

In October 2005, when The Florida Bar Journal published my article “The Science of Memory,” a book was just being released of which I was unaware. It dissects the phenomenon of false memory, an area of study that mushroomed in the 1990s and has now taken front stage in explaining problems that infect the fact-finding process in our courtrooms.

“The Puzzle of Memory” dealt with the divergence of truth and accuracy in witness testimony. It pointed out that memory is not a mere playback of an imprinted vision, like some tape recorder. It is a highly complicated and fallible faculty, affected by multiple elements that can cause it to be accurate though not necessarily dishonest.

False memory, as Brainerd and Reyna explain it, is not merely memory fallibility or forgetting: It refers to circumstances where one is possessed of positive, definite memories of an event that did not happen, or happened at least, differently than that reflected by memory. Given the number of courtroom trials that involve the testimony of eyewitness identifications, especially where there is a paucity of other physical evidence, this book is a must-read for any lawyer who anticipates standing to cross-examine a witness, and for the judges who preside over these trials.

The book notes numerous examples of studies revealing wrongful convictions based upon false identifications. It reviews all past and current theoretical explanations of false memory. Most importantly, it details the difficulties encountered by practitioners in the criminal justice system, from criminal investigators to the ultimate fact finders, when dealing with — and attempting to avoid — the phenomena of false memory.

Two particular areas of criminal investigation — witness interviews and eyewitness identifications — have been extensively studied. Both are noted to be leading causes of false convictions. Most particularly in cases lacking supportive physical evidence, this book shows clearly how suggestive, manipulative, and other dubious investigative techniques can hamper the truth-finding process unalterably. Many specific examples of suggestive features of criminal investigative interviews are reviewed which can readily produce false memories in both witnesses as well as defendants (false confessions). Our dependence upon such potentially tainted memories in courts of law is enough to give even the most stalwart prosecutor pause. The fact is that all is not simply truth or lies – false memories are more common than we wish to admit, and the problem must be confronted.

The book’s authors are academicians and they write as such. This can make the book a little difficult to wade through in places. But the basic science is well-documented and a little frightening. They review the so-called fuzzy trace theory that explains how people store two types of experience records or memories: verbatim traces and gist traces. Verbatim traces are memories of what actually took place. Gist traces are based on a person’s understanding of what happened, or what the event meant to him or her. Gist traces stimulate false memories because they store impressions of what an event meant, which can be inconsistent with what actually happened. That leads to witnesses honestly describing what they remember, when those memories are actually false. Thus, it becomes clear that investigations relying only on witness memories, rather than the gathering of supportive physical evidence, can lead to fact finding issues and a dilemma for the justice system.

Brainerd and Reyna point out that in Great Britain, convictions based solely upon eyewitness identifications of defendants are prohibited. They review at length separate guidelines adopted by the American Psychology and Law Society as well as the Department of Justice designed to reduce false identifications. An entire chapter is devoted to false memory in criminal investigations involving child victims, an especially difficult area where abuses often leave no detectable physical traces. Thus, the burden in these cases falls upon the memory of the child and the issue of false memory is exascerbated.

The field of false memory research has made significant strides in the past decade. The Science of False Memory is the most recent important book in this area, and the subject of its study impacts every court of law working to achieve justice under demanding circumstances.

The Science of False Memory is available from Oxford University Press and Amazon.com.

Steven Wallace retired from the Orange County bench in 1996, after serving as chief assistant state attorney in the Ninth Circuit, chief assistant public defender in the 20th Circuit, and Orange County judge.