The Mentalist’s Writers and the Genetic Information Nondiscrimination Act

Kudos to The Mentalist for showing the very first violation of the Genetic Information Non-Discrimination Act (GINA) that I’ve seen on TV. If you don’t know about GINA, it’s the law that says employers can’t discrimination based upon genetic information they have about an employee. I think The Mentalist crossed that line in the latest episode.

The writers didn’t mean to violate the law. But they did it all the same. In the latest plotline, Internal Affairs is investigating the department because a very bad guy burst into flames in his jail cell. He needed killing, as any one of the cops would tell you. This episode focused on CBI Agent Rigsby. I won’t rant about the fact that he was meeting with the IA investigator without his union rep since I just did that rant about another show (it’s wrong, wrong, wrong!). Okay, a little rant.

No, this rant is about the fact that the investigator looked into Rigsby’s past and found that his father had quite a colorful criminal past. The investigator then announced that criminal behavior can be genetic and that he was looking into Rigsby as a result of his association with his father. Hello? Can you say lawyers and lawsuits?

Once the investigator decided that Rigsby had a genetic condition, he can’t discriminate against him because of it. That includes putting him under the microscope in an investigation, questioning him about other incidents from years ago, and harassing him.

I adore Simon Baker and will continue watching The Mentalist just for his smile (and the mostly excellent writing) but please stop this ridiculous plot line (and for God’s sake, get Rigsby a union rep) before I throw a shoe at the TV screen.

"The Good Guys” Aren’t So Good On Police Officers’ Rights

I’ll say right out that I love Bradley Whitford’s new show, The Good Guys. It’s funny and fresh, the actors are fantastic, and the writing is sharp. However, they missed the boat in the last episode I watched called Cop Killer. It was about an Internal Affairs officer who has it out for our main character, Dan Stark.

Of course, IA can indeed have vendetta on their minds. But this show got it all wrong, and it wouldn’t have hurt the plot one whit if they’d done it right. Maybe it bugged me so much because I do employment law, but the whole episode made me squirm.

Union Reps and Union Lawyers

Once a police officer is accused of misconduct, he’d have his union representative in with him on any questioning. This show is in Dallas, which has the Dallas Police Association representing officers there. The DPA has a law firm on retainer to represent its members. The Texas Municipal Police Officers Association also provides legal representation to members. (It took me 10 minutes and Google to find out the names of the organizations and the kinds of representation they offer, so why didn’t the writers bother?)

The officer wouldn’t be sitting alone with IA answering questions unless he’d lost his mind. And Stark and his partner wouldn’t be dithering about hiring a lawyer. Stark says he doesn’t want to pay, but he wouldn’t have to. Even my husband, a non-lawyer, was frustrated. He kept yelling at the screen, “Get a lawyer!”

The union contract (the collective bargaining agreement) will have details about what rights the officers have if questioned by IA, who can be present, what hoops they have to jump through to suspend the officer, and what appeal rights the officer has at each step. It’s unlikely that the union would allow IA to announce they were taking away the weapons of the two partners and that they were no longer police officers during the investigation. What union would agree to have so few rights for its members? Police unions are very politically powerful. They have the ability to negotiate lots of rights for their members, and their members know to invoke their rights.

DAs Don't Represent Perps, Even if They're Friends

When our hero Stark’s partner asked his girlfriend, the Assistant DA who prosecutes police misconduct, to represent Stark they really crossed over into the ridiculous. The Assistant DA would no way be involved in representing an accused cop. No officer with any sense at all would even ask her. To her credit, she said no, then helped off the record. But the fact that the writers had Stark refuse to lawyer up was off the wall. He’d be screaming for his rights, and the show would have been funnier having Mr. Law-And-Order-I-Hate-Lawyers suddenly best buds with a defense lawyer.

Disbarment is by the Bar

The IA guy (played by Joshua Malina of Sports Night and The West Wing) also threatened to have the Assistant DA disbarred. How on Earth could he do that? He’s not the State Bar of Texas. He could maybe file a complaint, but more likely he’d just go up the chain of command and seek to have her fired or disciplined by the prosecutor’s office. He’d have no authority over her whatsoever. The prosecutor’s office (Dallas County District Attorney’s Office) and the police department are completely separate entities. They have to be. Otherwise no prosecution would have any credibility. Can you imagine the defense arguments? What jury would believe the prosecutor wasn’t in the pocket of the police if the Police Chief could fire her?

An Easy Fix

The Good Guys is a show worth watching. It’s about a talented but off the wall cop, mentally stuck in the 70s, who has no concept of modern police procedure, computers, or civil rights. His partner is a young up-and-comer who balances Stark’s recklessness while learning to loosen up. I’ve adored Bradley Whitford since The West Wing and Colin Hanks (Tom Hanks’ son) as his partner is perfect casting.

Stark is always in trouble with the department because he breaks the rules. The IA character mentioned Stark’s last IA investigation, and Stark crowed that he was cleared. We’re supposed to believe he was cleared without representation? That all these years he breaks the rules and gets away with it with no union rep or lawyer helping? Horse hockey. He’d know his rights by heart and have his union rep and union lawyer on speed dial.

There’s an officer in the show who absolutely hates Stark – I’d have made him Stark’s union rep. Union representatives have to represent coworkers they hate all the time. It would have been hilarious.

Getting it Right

This episode bugged me to no end. I expected to enjoy it since Josh Malina has also been one of my favorite actors ever since Sports Night. He was wasted here, but I hope we’ll see him as a recurring character. The episode was so far off reality that it took me out of the story. Hopefully the writers will step up their game to their usual high standards going forward.

Getting it right is worth the trouble, even when it’s comedy. A little research can make a good story better and give you good plot twists. Maybe I should send the writers a copy of The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers.

Or they could just ask me questions here, in the comments section, like you can. I’m glad to help.

Who Might Your Murderer Character Want to Kill Off (Besides Lawyers)? Six People Who May Just Need to be Murdered

When I teach at writers conferences about using the law in stories, sometimes writers have no idea how helpful the law can be. One of the ways the law can really help your story is the characters. If you’re writing a murder mystery, you need a victim. Who gets killed and why are central to your story. Now, everybody knows the first thing you do is kill all the lawyers (at least if you want to overthrow a government, as was the context of Shakespeare’s quote). So I won’t bore you with why lawyers make good murder victims. Res ipsa loquitur (the thing speaks for itself).

I want to talk about some other people operating in the legal system who move around enough or who have enough information that they might be asking to be killed off. I’m going to tell you about six of them, but my book, The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers, has loads of suggestions if you need more.

1. Legal secretaries handle scheduling, prepare some court notices, draft some minor court documents, prepare letters, type (although this is becoming less of the job now that most attorneys prepare their initial drafts on their own computers), transcribe (again, more and more rare), file, deal with client and opposing counsel calls, and keep the lawyer’s office running smoothly. You could have a legal secretary who steals a trust account check and the lawyer faces disbarment, or who knows the lawyer is the perpetrator of a giant ponzi scheme. Legal secretaries know everything about the attorney, so they make great witnesses, or blackmailers. Which makes them excellent murder victims.

2. Office managers handle the business and human resources end of the law practice. If your paralegal or legal secretary character starts mouthing off to the boss, the office manager may be the one to step in. Maybe he steps in front of a two-by-four wielded by a disgruntled secretary. Office managers can also be used in your story to do the dirty work: getting rid of staff, hiding documents, moving people from department to department to keep any one person from knowing too much. Does this get them killed? Do they embezzle the trust money? They will probably have passwords and access to the firm’s accounts. Frequently seen in larger firms, this role is now being handled in midsize and smaller firms by someone trained in either accounting or administration. Could your office manager character be quietly figuring out how to retire? Could she be undercover trying to bring in a crooked attorney? Or did she fail to end up in witness protection before the mobster client whacked her?

3. Notaries witness and put their seal on signatures to verify that they obtained good identification from the person signing and that the signature is true, and certify copies of documents as being true copies. They can give oaths and perform wedding ceremonies. Banks, law firms, and copy centers frequently have staff notaries. Did your dishonest notary put a piece of property in their own name? Did they notarize a document with lots of white space and turn it into a will in their favor? Or, do they know uncover a forgery? Notaries can be witnesses to all kinds of fraud in your stories. They could be on the run, in witness protection, or a murder victim.

Unscrupulous notaries can use the Spanish translation, “notario” to bilk unsuspecting immigrants. The term notario can refer to a lawyer or someone of similar stature in some countries. Many notarios engage in the unauthorized practice of law here in the U.S. This comes up frequently in immigration fraud scams. Is your character an illegal immigrant who thought they were legal? Did the notario’s scam get them deported? Might be a motive for murder.

4. The judicial assistant, or JA, handles scheduling of hearings, trials, and other court proceedings. They usually handle and mark the evidence when it is admitted. In other words, they are the judge’s right arm. The demeanor of a judicial assistant is usually a good reflection of the demeanor of the judge. Dealing with a great JA is one of the great pleasures of legal secretaries, paralegals and lawyers. A nasty or incompetent JA can make legal life miserable. Your characters can show up to hearings that aren’t on the calendar, sit in the courtroom for hours as proceedings run late, have courtesy copies of motions and cases that were sent to the judge well in advance suddenly lost, and other JA-caused tribulations. Could drive anyone over the brink, couldn’t it? The JA could also witness bribery, threats, or jury tampering, which means they could blackmail a lawyer or judge. We know what happens to blackmailers and people who know too much, don’t we?

5. Process servers hand court documents to people who don’t want them. Lawsuits, orders to testify in court or bring documents, or orders to stop doing something, your characters won’t be happy to see a process server. Many people try to evade process servers, who have to get clever to serve those individuals. Fake pizza deliveries, exterminators, pulling fire alarms, could be used to humorous advantage in a story. Or get your process server killed. Most people realize that the process server is just doing their job. The likely reaction of your character served with a suit is to thank the process server. Boring, but accurate. But maybe they see the character with a mistress. Many process servers are also private investigators, and some have law enforcement backgrounds. Having a character who moves around lots, who is observant, and who knows something about the law could come in handy in all kinds of creative ways, couldn’t it? Or do they know too much?

6. A court reporter’s job is to write down every word said in court, listen to every word of every legal proceeding they cover, and be able to write it down accurately. A missed word can be catastrophic to a trial. Imagine the deposition transcript in your story with an omitted “not” or “no.” Or with the wrong speaker listed. What if a court reporter hates your attorney character because he broke up with her? She might decide to change the words. Court reporters are almost invisible. During breaks, lawyers and witnesses forget they’re even there, so court reporters hear all kinds of things they probably shouldn’t. You can have one hear a death threat or blackmail. If someone prone to murderous rage suddenly realizes the court reporter was present, who knows what might happen?

Some others who might be in a position to blackmail or witness something they shouldn’t have seen are bailiffs, runners/messengers, and paralegals. We all know that the motives for murder can be complex or simple, funny or horrible. Murder mystery writers need to choose their victims carefully.

Hopefully now you have some more ideas on who your murderer needs to knock off. The rest, my friends, is up to you. Happy writing!