Stephen King’s Never Flinch and the Criminal Justice System

Never Flinch, Stephen King’s latest novel, happens to turn on some failures in the criminal-justice system, which I wanted to explain for people who do not regularly practice criminal law.

Minor background spoilers below

Much of the story's background turns on a trial in which Alan Duffery, who was framed by business rival Cary Tolliver for possessing child pornography, is convicted. The system failed in Duffery’s case for several reasons that unfortunately are grounded in real life.

First, prosecutors have a duty to reveal exculpatory information but are not required to disclose all their evidence or to identify exculpatory evidence as such. This gives lots of discretion to prosecutors as to what and how they disclose, which can result in information being buried or overlooked or not disclosed. Here, the prosecutor’s disclosure of a forensics report may have been vague enough to not be a clear violation of an ethical duty, but the co-worker’s comments that might have explained how Duffery was framed should have been disclosed.

Second, criminal defense lawyers actually have less investigative power than the book implies. Duffery’s attorney is criticized for not deposing Duffery’s co-worker, but criminal defense lawyers generally are not allowed to take pre-trial depositions and generally cannot compel pre-trial interviews of witnesses. This may be surprising to lawyers who work on civil matters – it may seem crazy that defendants in criminal cases have less ability to talk to witnesses before trial than parties in civil cases, but that is how it works in the federal system, Ohio, and many if not all states.

Third, the jurors apparently did not do their job. Duffery’s defense lawyer was not perfect but did well enough that three jurors believed that Duffery was not guilty. This would not have been enough for an acquittal, but it would have been enough for a hung jury, and that’s probably what should have happened. But, as we learn late in the book, those three jurors were browbeaten into going along with the majority. I’m not aware of any data on how often this happens in real-life trials, but I suspect it happens more often than we might like to think. Defense lawyers can do everything right, but their work can be rendered meaningless if a juror gives up their belief because of pressure, as happened in the Duffery case. A hung jury is not a failure of the system but a protection against improper convictions.

Thanks to Stephen King for what I found to be an unexpected opportunity to discuss some real-life issues! Overall, we should take a hard look at revising the criminal discovery rules and think more about how juries really operate. Hope this helps!