When George Plimpton in a 1966 interview with Truman Capote suggested that the temptation to fictionalise in a ‘nonfiction novel’ such as In Cold Blood must be overwhelming, he was thinking of the author’s account of how the accused murderer Dick Hickock, on the run with his accomplice Perry Smith, swerved in his car to hit a dog trotting along the road:
Q: Was there actually a dog at that exact point in the narrative or were you using … a fiction device?
A: No. There was a dog, and it was precisely as described.
In the face of increasing accusations that In Cold Blood, subtitled A True Account of a Multiple Murder and Its Consequences, was not ‘true’ in all of its details, Capote insisted that it was: ‘One doesn’t spend almost six years on a book, the point of which is factual accuracy, and then give way to minor distortions … All of it is reconstructed from the evidence of witnesses.’[i]
As film-goers know, In Cold Blood involves two stories. The first, including the subject matter of the original book and the two film adaptations (Richard Brooks’ 1967 movie and Jonathan Caplan’s 1996 television miniseries), not only recounts the brutal murder of a farm family but also scrutinises a murder trial. Despite his claim to refrain from judgement, leaving this to the reader, Capote’s observations on the prosecutors, the defence lawyers, the judge, the jury, an outdated doctrine of insanity, and the death penalty strongly suggest a miscarriage of justice. The book offers numerous vignettes of potentially unethical conduct by lawyers, possible community bias infecting a trial, and seemingly bad law.
The other story is about Capote himself while he was writing In Cold Blood, including his personal life, research practices and artistic goals. That story and that character provide the focus of the recent films Capote and Infamous. Each film raises ethical questions for ‘New Journalists’ or ‘creative’ reporters who share Capote’s legacy and those writers who specialise in the ‘true crime’ genre. Even if Capote’s reportage in the book was accurate, his lies to his interviewees, his apparent intimacies with Perry Smith and his alternate desires for delay and completion of the execution in order to enhance punishability, as revealed in the films, are disturbing. The films also raise doubts about Capote’s so-called ‘true account’. Just as he seems to have valued the success of his book over the lives of its subjects, he seems to have valued artistic structure over journalistic accuracy.
The risks of nonfiction storytelling present challenges not only to New Journalists but also to lawyers and judges. Every law student learns that facts, in lawyers’ arguments and in judicial opinions, can be selected and manipulated—that facts are as interpretable and unstable as legal doctrine. This phenomenon leads us to consider the ethical limitations on legal storytelling.
Capote did not claim, as I do, that In Cold Blood is a critique of law and lawyers. Denying any thesis or message, Capote openly acknowledged to Perry Smith that he had no ‘moral reasons worthy of calling them such—it was just that I had a strictly aesthetic theory about creating a book that would result in a work of art’.[ii]
While Capote found his research moving, he wanted in his writing to remain detached, to reserve judgement, to disappear. To whatever degree he succeeded in this, however, he could not hide his disdain for the legal proceedings. Indeed, Capote’s ‘true account’ often seeks to disclose what the processes of law could not. Consider, for example, the limitations imposed by the Kansas doctrine of insanity. The defendants’ expert witness, having conceded that the defendants knew right from wrong, was not allowed to present the possibility that Dick Hickock had brain damage or that Perry Smith might be a paranoid schizophrenic—but Capote does.
Capote was obviously unimpressed with the local jury and he condemned the trial judge’s decision to allow local physicians, rather than psychiatric specialists, to announce that neither defendant suffered from mental disorder. He demonstrated the excessive zeal of the prosecutors and the failures of appointed counsel to prepare an adequate defence.
Prosecutors, as officers of the justice system and not mere advocates, have an obligation to ensure procedural fairness, but Capote portrays Logan Green, assistant to the prosecutor, as determined to eliminate the defence of temporary insanity. Green was afraid
that the ultimate outcome of [professional psychiatric evaluation] would be, as he predicted in private conversations, the appearance on the witness stand of a ‘pack of head healers’ sympathetic to the defendants. (‘Those fellows, they’re always crying over the killers. Never a thought for the victims.’)[iii]
After the trial, in federal habeas corpus proceedings, no prosecutorial misconduct was ever acknowledged, but Capote implies that he knew and reported on matters that never made it into the official court records.
Claims about an inadequate defence counsel were also dismissed after the trial, but Capote highlights the outcry of numerous Kansas lawyers who were shocked by the minimal efforts of the local lawyers appointed to represent the defendants: they seldom met with their clients, they did not seek a change of venue for the trial (or separate trials), they did not object to certain jurors, they did not introduce mitigating evidence, and they made damaging statements to the press. Capote’s account of these accusations suggests not only that the appointed lawyers were incompetent but also that they had deliberately neglected their duties in response to community pressure.
Capote, of course, does not specify the ethical violations of the lawyers in In Cold Blood, but lawyers reading the story would clearly recognise the improprieties implied in Capote’s narrative. It easily functions therefore as a classic law-and-literature text, providing points of reflection on the ethical duties of lawyers. On a different level, however, Capote’s claims for the factuality of his story bring us to another intersection with legal ethics. Lawyers, in their role as persuasive storytellers, are bound by the obligation to tell the truth in a trial but risk making the same errors of which Capote is accused.
Capote’s fiction skills, which he considered indispensable to being ‘a good creative reporter’, would haunt him when he was later accused of blending fact and fiction in In Cold Blood. Even though he distanced himself from popular New Journalists such as Tom Wolfe, he gave momentum to the movement. And New Journalists were, like Capote, criticised for embellishing quotes and scenes and interior thoughts when they started writing journalism that read like a novel. Extensive research notwithstanding, they added things to their stories.
Beginning with Phillip K. Tompkins’ 1966 Esquire article entitled ‘In Cold Fact’, the charges against Capote of inaccuracies, misquotation, composite characters and fictional scenes have multiplied. Numerous individuals portrayed in the book have questioned his recollections of their meetings with the author. For example, the lead prosecutor, Duane West, felt underrepresented and ignored despite his primary role in the trial, and agent Harold Nye (Kansas Bureau of Investigation) refused to approve galleys sent to him because in his view certain characters and events had been fictionalised. Nevertheless, Capote continued to insist that while documentary novelists took ‘the latitude of a fiction writer’, he avoided such distortions and carefully combined ‘the persuasiveness of fact’ with ‘the poetic attitude fiction is capable of reaching’.[iv]
Trial lawyers, particularly in their opening and closing statements to a jury, are storytellers who likewise hope to combine facts with compelling narrative techniques. Moreover, as advocates, they need not pretend to complete objectivity, which suggests another parallel with New Journalists (who challenged traditional journalistic assumptions concerning neutrality) and even Capote (whose claims to objectivity are belied by his ‘advocacy’ for the accused murders). Nevertheless, the ethical limit on advocacy for lawyers is that they cannot fabricate or misrepresent facts.
If the goal of the nonfiction novel is to maintain journalistic accuracy while creating artistic structure, proportion, coherence and order, then the genre is familiar ground for litigators. Many books on the art of advocacy emphasise the importance of storytelling techniques, arguing that a trial is a competition between two stories, between two versions of the facts. Lawyers develop plot lines and characters, and add imagery, emotion and drama in an effort to engage the jury. Lawyers win cases, some commentators say, with a compelling story.
Such advice puts trial lawyers in a position not unlike Capote’s while writing In Cold Blood. If we assume that Capote failed in his goal to remain detached and avoid judgement, by directing our sympathy towards the Clutter family murderers—‘moral perversions of decent men brought about by the poverty, violence, and ill luck’ in their past[v]—and suggesting a miscarriage of justice, then Capote became a lawyer-like advocate.
The ethical guidelines for lawyers include a commitment to truth and a duty to present a case with persuasive force. Lawyers cannot lie about facts, but they are permitted to choose, creatively, the facts that they want to focus on. Moreover, the facts in any legal dispute might support several different interpretations, and each counsel’s resolution of doubts in favour of a client can result in conflicting stories in a trial in which neither counsel is lying.
In his book The Trial Lawyer’s Art (1999), Sam Schrager, a non-lawyer ethnographer, concluded that lawyers, in allegiance to their client’s version of the facts, try to present the appearance of truth. They orchestrate various elements to create a dramatic story, using parallelisms, set-pieces, and metaphor. But he justifies their role by our culture’s moral commitment to trial by jury—justice, under this system, has the best chance with evenly matched lawyers. And if ‘you get squeamish, if ethical doubts cause you to hesitate, you are liable to weaken your performance’. While journalists may criticise trial lawyers, Schrager adds, perhaps journalists ought to look self-critically at how well they live up to their public duty to investigate and report what they find. The scandal disclosed by Schrager is thereby transposed onto another profession.
Perhaps we do not care that Capote added some inaccurate or fanciful details in order to round out his narrative, but we would probably condemn a lawyer who fabricated to help the structure of a client’s story. Even if a degree of fabrication is justified on the basis that a lawyer is an advocate—not a journalist who holds the public trust—the professional ethical regulations of lawyers draw the line at known falsehoods. All of the shaping, artistry, structure, order, coherence, style and other techniques of fiction must defer to that standard.
In Schrager’s perspective, the lawyer’s vow is to tell a good story, with a clear message that his or her client should win. In the end, neither Capote’s method nor Schrager’s perspective fits the lawyer’s rules of professional conduct, which acknowledge the advocate’s duty to tell a compelling story but also to avoid fabrication. Lawyers need to find a way to be both an honest officer of the court and a zealous advocate. To the extent that lawyers are storytellers, In Cold Blood serves as a warning to them about the limits of ambition, identification with a client and the temptations of fiction.
[i] ‘The Story behind a Nonfiction Novel’, New York Times Book Review, 16 January 1966, pp. 41-2.
[ii] Cited in Kenneth Reed, Truman Capote (Boston, 1981), p. 115.
[iii] Truman Capote, In Cold Blood (New York, 1965), p. 267.
[iv] Plimpton ‘The Story behind a Nonfiction Novel’, p. 3.
[v] Reed, p. 107.
Image credit: MOSCOT