FACTS

Every lawsuit tells a story
 Legal Storytelling involves the utilization of
facts to support and bolster a particular
version of reality
 Lawsuit or Trial is a Contest over whose
story is more persuasive to the decisionmaker.
Narrative Dissonance

In a trial, the facts that the jury hears are
selected, sorted and controlled by the rules
of law-rules of evidence
 This author called into question the
legitimacy of this process when he
discovered that the reality (and what he
believed to be the truth) upon which he
based his verdict was false
Organization of Legal Process
IN A CRIMINAL CASE





Incident
Arrest
Arraignment
Jury selection
Opening statements
AND
Prosecution case
 Defense case
 Summations
Judge’s charge
 Jury deliberation
 Verdict
 sentence

TRIALS ARE
Built around a theory that drives each side’s
case
 In a Criminal Case, the Prosecution and the
Defense has a theory of what happened and
seek to present evidence that prove that
theory, according to a legal standard
(beyond a reasonable doubt)

Trial-Theory of Defense
Alibi defense-Kaplan wasn’t there
 The defense wanted to create an
interpretation of events and a way of
thinking about the defendant that the jury
could believe.
 Elements of this defense

– Testimony of witnesses
– Impeach identification of defendant
Trial-Theory of Prosecution

Acting in concert
 Identity was clearly established
 Defendant “exercising right not to be present”
 Witnesses
victims
eyewitness
police officers
Physical evidence-blood on arms and boots
HOW LAW RECONSTRUCTS
REALITY
WHAT HAPPENED
WHAT JURY HEARD
Kaplan skipped bail,
rearrested-in jail
Multiple prior arrests
Exercising right night to
be present
No information
Heroin addict
No information
First lawyer left-ethics?
No information
Relationship with women No information
Detective’s tactics
Tape recording not
played
Verdict

Was Justice Done?
Jury in “Our Guys”

10 women, six men, 8 black and 4 white.
 Majority in 30s and 40s, few in late 50s and
early 60s-one was 26
 Urban and suburban
 Mixed occupations
Lawyers

Lawyers for each took
different approach in
constructing story
 Goldberg-prosecutortried to lay
groundwork for who
Leslie was
Defense could have
-argued that she was
mentally capable
-that she was sexually
experienced
-didn’t know her but this
would require them taking
stand
-down and dirty approachshe was promiscuous and
wanted it
VERDICTS

Chris Archer-Guilty of two counts of aggravated
sexual assault-1 for using force or coercion, 2 for
assaulting mentally defective woman. Guilty of
2nd degree conspiracy
 Kevin Scherzer-same as Chris
 Kyle Scherzer-Guilty of 1 count of first degree
aggravated sex assault-using force or coercion.
Guilty 2nd degree on mental defective
charge.Guilty of 2nd degree conspiracy
Verdicts

Bryant Grober-Acquitted of 1st degree
aggravated sexual assault, Guilty of 3d
degree conspiracy to commit aggravated
sexual assault and aggravated sexual contact
SENTENCES

Archer and both
Scherzers-maximum
fifteen years in prison
(could have been up to
40 years)-bail pending
appeal
 Young adult offenders
institution

Grober-3 years
probation and 200
hours of community
service
Appeal

Argued in New Jersey Appellate Court in
April 1997.
 Skeptical that force and coercion had been
used
 Dismissed force and coercion charge.
Upheld Mental Capacity Charge
 Result-Jury verdict left standing