Categories, Schlegatories: Do Labels Matter?

NAOMI HIRAHARA

Apparently on the DorothyL discussion list, there’s a debate that occurs seasonally about book categories, specifically mystery vs. literary. I presume this is a regular ritual as mystery writer and January Magazine editor Linda Richards contributed the following entry: "Is it that time of year again already?"

As a person currently writing an upmarket women’s book, I wonder, do these labels really matter? (Don’t worry, I’ll attempt to at least give some examples of authors who write upmarket.) I love books in the Literature section. I love books in the Mystery section. I don’t understand why mystery authors say that they stay away from anything labeled "literary" and why I’ve encountered some readers who adamantly proclaim that they don’t read mysteries.

Adding to the confusion is the way my mysteries are handled at the Borders chain. My first, SUMMER OF THE BIG BACHI, is shelved in the Literature section, while the two others are in the Mystery section. Of course, I would prefer them altogether, but it does amuse me that somehow the books in the same mystery series would be categorized differently like this.

Reading various opinions about the literary vs. genre debate has prompted me to address and reevaluate some common myths. Some of these myths, by the way, were held by me as recently as last week.

MYTH #1 Literary books are not plot-driven.

The bestselling literary books seem to always involve a great yarn. Arthur Golden’s MEMOIRS OF A GEISHA, Alice Seibold’s THE LOVELY BONES, Audrey Niffenegger’s THE TIME TRAVELER’S WIFE, to name a few, have very strong storylines. Or take the recent book I just read over the summer–Sara Gruen’s WATER FOR ELEPHANTS–yes, unforgettable characters, beginning with Rosie the elephant, but also masterfully constructed. The novel opens with a murder and has intrigue, erotica, and secrets along the way. It ends with answers to the beginning murder scene.

It could be that more literary books experiment with language and structure, but the most popular ones are replete with plot devices.

MYTH #2 It’s easier to write a mystery than a literary book.

As I tackle this current non-mystery book, I was finding that the structure, the words and the general flow were coming a lot easier than when I attempted my mystery book. I chalk that up to the experience of writing three mysteries. But the key operative word is "was." I’ve hit a few rough patches, which just confirms that writing for me in any genre is a messy, organic process.

MYTH #3 Categories are just for the reader and publisher, and should not influence how the writer shapes his or her book.

I, up to a week ago, would publicly contend that the above statement is patently true and was going to post something to DorothyL stating as much. But when I waited and thought about it, I realized that my own actions contradicted this statement.

As I was developing my current book, I was trying to figure out what category it would fall in. It has a female teenager’s voice. So young adult? No. Chick lit? No. Literary? Well, kind of. And then I learned of this category used by agents–Upmarket Women’s Fiction. It’s not a new term, but I had not heard of it before. So I googled upmarket women’s fiction and came up with names like Mary Sharratt. I then read Mary Sharratt, and then nodded my head. Yup, this is what I was aiming for.

(I haven’t come across a good concise definition for "upmarket," but Miss Snark, the blogging literary agent, has come up with some snazzy descriptors. I’m also taking a look at Aurelie Sheehan’s work, namely HISTORY LESSON FOR GIRLS. Upmarket, of course, is not a bookstore section; these books would be under the Literature section.)

This investigation has helped me to understand the expectation of a genre. It doesn’t mean to necessarily have to go along with the formula or follow each convention. But be mindful of them.

In an earlier draft of BIG BACHI (when the label was literary and the title was BROKEN BRANCHES), my aging protagonist, Mas Arai, goes catatonic as he is faced with what happened to him and his friends during the atomic bombing of Hiroshima. It was then up to a young Japanese doctor from Hiroshima to save the day. But the book didn’t work. I couldn’t get representation. I couldn’t find a small press publisher.

So I kept chiseling at it. Someone in a writing group mentioned that she didn’t think much was at stake. "What?" I thought to myself. "She doesn’t know what she’s talking about." But her words stayed with me. Weeks later, I finally admitted to myself that she was right. Thus began the seeds of a murder. The elimination of one major character, the doctor. It became solely Mas Arai’s story. And it became a mystery.

For my mystery, I had a very reluctant, reluctant sleuth, but I couldn’t make him catatonic, according to the conventions of the genre (Chester Himes and Walter Mosley taught me well). He would have to get off his butt and do some sleuthing. From this process, something beautiful happened: I found the perfect container for my story–the mystery genre.

MYTH #4 It doesn’t matter where your books are shelved.

Although I did make light on how my books were categorized at the Borders chain, it does make a difference. But the most hotly debated issue revolves around the African American section. A Japanese American writer friend bemoaned that booksellers don’t fully embrace the growing number of books written by Asian Americans to warrant our own section. But I say–beware of what you wish for.

Certainly some readers read exclusively or predominantly African American novels and will seek out that section for good reads. That’s how my husband found an exquisite collection of short stories, I GOT SOMEBODY IN STAUNTON, by William Henry Lewis. But he might have discovered it in the Short Story section as well.

African American publishing is a big and thriving business, so I understand publishers and booksellers wanted it extremely targeted for the easy sale. But I also understand the frustration of some black writers who feel ghettoized, the impact of their writing word not being fully felt in other parts of the store.

If you are a person of color who writes mysteries set in ethnic communities, your books should be shelved under the Mystery section. This will be better for your career in the long run. Your faithful readers will find you, while exposing you to a new, larger readership.

Alphabetically speaking, I love being close to Tony Hillerman (and not that far from Denise Hamilton) because our books probably have more in common than my Mas Arai mysteries do with chick-lit books with Asian American heroines.

So are categories and labels are important? Most definitely, but books in different sections may have more in common than we think.

BIG BACHI’S ON FOURTH AND GASA-GASA’S ON THIRD: Yay for multiple printings! SUMMER OF THE BIG BACHI’s is now in its fourth printing and GASA-GASA GIRL is in its third. I do think Jason Pinter’s observation is correct–trade paperback originals do tend to have longer shelf lives.

WEDNESDAY’S WORD: monku (SUMMER OF THE BIG BACHI, page 87)

To complain or a complaint. Once upon a time in Los Angeles’ Little Tokyo, there was a shoe store that sold T-shirts that read, "Monku, Monku, Monku." In this record-breaking heat in Southern California, monku is plentiful. But considering the unstable situation our world is in, a little heat is easy to bear.

BABY, BABY: First it's baby Justin, born to some local friends on Monday, and now we have word that David Montgomery's daughter is on her way. Congrats, Papa and Mama Montgomery!

QUIBBLES & BITS

Deni Dietz

A couple of weeks ago Sarah Weinman talked about blogging. Her whole post was interesting (Sarah is always interesting), but then she said: "Think of it this way: if the entire population of my native Canada - roughly thirty-three million people - each had a blog, that's still less than the total number actually out there..."

Sarah started me thinking. First I thought about the population of [my adopted country] Canada. Only 33 million? What's the population of California? Anybody Know?

And then I thought about "when I was a kid."

When I was a kid I hated writing essays, so I didn't. There would oft be essay contests with subjects like: "What Memorial Day Means To Me" (it meant riding in a parade, in my dad's Impala convertible, along with my fellow Girl Scouts, my beauty-pageant-banner badges gleaming in the winter sun, and -- the best part -- being rewarded for being a "good scout" afterward with bubble gum and an ice cream soda, not necessary in that order). Or the essay would be called: "Why your Teacher [policeman, Lifeguard, Best Friend] is your Best Friend."

The winners would be published in the Bayside Times.

Friends, especially adults, would come unto me and say, "Deni, you write so good, why don't you enter the essay contest?"

And I would respondeth, "Jeeze, I hate writing essays.'"

It has now suddenly occurred to me that I write an essay every week.

So...why am I doing this? Certainly not because I "write good." Hey, maybe there's a dim hope in the back of what's left of my mind that people will like my "voice." And maybe if they like my voice, they will check out the excerpts on my website, then call their libraries and request one of my books and try it on for size.

Maybe.

This week my Quibbles & Bits designation is: DO BLOGS SELL BOOKS?

That very question was asked on one of my email loops by, I presume, an author who was thinking of starting up a blog [well, duh!] and I've been thinking about it ever since.

Do they? Sell books, I mean?

Or do the people who read my weekly Quibbles & Bits already own my books? Or borrow them from libraries, which is great -- as you may have noticed, I pitch libraries as often as I can.

Blogs are hard work -- at least writing mine is. I try to be somewhat amusing week after week (which, in truth, keeps me from being politically hostile), so I keep setting the bar higher and higher. In the olden days, it would take me 24 hours to write and edit a letter to my mom, and unless I'm pissed off -- whereupon I almost always open mouth, insert foot -- I "draft" every email I write. Which is to say that I start writing my Tuesday Murderati blog on Wednesday. So...

Do blogs sell books?

Or do they have the opposite effect and over-hype an author?

I'll be honest. I usually read blogs by authors whose books I already own [and adore]. Case in point: Paul Levine. If I ran into an author I adored in a public place (oh, say, the ladies room - well, I probably wouldn't run into Paul there, so let's add an elevator), I'd either be tongue-tied or gush. I shared an elevator with Walter Mosely, just the two of us, and I was tongue-tied; I ran into Susan Isaacs in a restroom and gushed (poor Susan).

But reading a blog by one of my favorite authors is different. I'm rarely tongue-tied because I write my comments rather than talk out loud, and gushing is limited to how many words I can fit into the "comments square" before my fingers tire or my brain fries.

So, let's do an informal poll. How many people have bought -- or borrowed -- books because they like an author's blog?

And/or how many people have been tongue-tied [or gushed] if/when they've met a favorite author?

And what the hell IS the population of California?

Next Tuesday, just for fun, I think I'll blog an essay about a real live actress -- my sister Eileen -- who played The Demon and many of the possession scenes [for Linda Blair] in The Exorcist. And I'll include photos. And a movie poster for Eileen's latest film.

Maybe the Bayside Times will print it.

Over and Out,
Deni

How to Pitch to a Reporter

by Pari Noskin Taichert

(Hi all. I bet you thought I'd be posting about the marvelous Con Misterio. Well, I will . . . eventually. I've got to go through the pictures, find the links for the authors' mugs -- I like to give them the additional plug -- and see if I can decrease the red eyes so that they don't all look like vampires. Since I'm typing this late on Sunday night after just getting off the plane . . . I'll save my report until next Monday.)

I originally wrote this article for my Bad Girls Press website. It's targeted to a general audience -- but the lessons are important and I hope you all will benefit from them.

How to Pitch to a Reporter

When you're cooking dinner, nudging the dog from the kitchen with one foot and chasing the cat out of the garbage can with the other, the last thing you want is a salesman with a long-winded patter, even if you'd normally be interested in his product.

Think of your phone call to the news media in the same way. Any reporter, news director, or assignments editor with whom you speak is busy, very busy.

Put your ego aside. Don your mental running shoes and entice that person with a juicy pitch -- one she can't resist. To be successful, you have to frame your information so that it focuses entirely on her wants and needs rather than your own.

Don't get it? Here's an example of common mistakes people make when approaching a reporter on the phone.

Wrong:
Reporter:  Thompson.

SS: Hello, Ms. Thompson. My name is Sally Swagger and I'm the executive director of the Save the Pennies Foundation. Our purpose is to ensure that pennies remain in circulation -- both for historical and practical reasons. Did you see that report on XYZ news last week about the government phasing out pennies? Well, we were simply aghast! Frankly, we feel the poor penny has been so long neglected and ignored that --

Reporter: Excuse me, I'm working on deadline.

SS: Well, this will only take a minute. As I was saying -- aren't pennies just lovely? We think more items should be bought with these beautiful copper Lincolns rather than using other coins. People waste so much by hoarding their pennies and that's why . . .

******Do you think the reporter is still listening to Sally? Don't bet on it. Chances are, if a reporter isn't responding or asking questions -- and you've been able to take more than two breaths in your pitch -- you've already lost her.

What's the lesson here?
Rather than blather, cut to the chase. Be prepared to quickly point out the something special that makes your event (or book) worth covering. For radio, you need to be sure it's got a good audio component. For television, you want to make sure the pitch contains a strong visual potential rather than BOPSA (bunches of people sitting around).

Let's say Sally's lengthy intro is leading up to a description of a special Paying with Pennies Day where all the Foundation members plan to use pennies to buy everything for 24 hours.

Let's replay the conversation.

Right:
Reporter:  Thompson.

SS: Hi, I'm Sally Swagger with Save the Pennies Foundation. Do you know what $1000 worth of pennies weighs?

Reporter (caught off guard): What?

SS: About 150 pounds. Our first Paying with Pennies Day is this Saturday. One of our members will buy his new car with nothing but pennies.

Reporter:  You're kidding, right?

SS: Nope. He's been saving for twelve years. We know he'll need several wheelbarrows -- and a couple of pickup trucks -- to haul them into Bill 's Buick over on 12th Street. And another one of our participants plans to go to the Ritz for a champagne brunch. I wonder how many pennies that'll take?

Reporter:  Hold on. (The reporter is now opening a computer file, or writing notes, or motioning her assignments editor over to her desk. Her eyes are twinkling. She's got visions of her story hitting television stations across the country.) What was your name again?

See the difference?
Sally got right to the point. But even more important, she was ready with an attention-grabbing angle. She didn't bother to talk about her organization's purpose in the phone call; that can be covered in a short information sheet when the reporter or cameraman arrives to film one of the events. Since Sally wanted television coverage, she spotlighted the visual aspect early. She also was smart to present choices -- that's like offering two kinds of dessert.

Coverage in a scary world:
Right now, most news outlets are focusing on the war in Iraq, avian flu and other crises. Garnering publicity for your product/event/book may seem even more difficult. And you might be right. There simply isn't as much radio, television or print space dedicated to non-tragedy related news. But don't let that stop you.

Of the many people trying to get media attention, you've got an edge. You know what to do:
Be smart -- work your pitch to meet reporters' needs.
Be brief -- don't waste his or her precious time or attention.
Be prepared.

You'll have a much better chance of attaining your publicity goals.

******* If any of you can give an example of a quick pitch you made to a reporter/reviewer etc. I'd love to read it in the comments. This would be an opportunity for us to help each other crack an increasingly tough nut.

cheers,

Pari

So. Are You Still An Architect?

Jeffrey Cohen

A couple of weeks ago, I passed my 21st anniversary as a freelance writer, or as I like to think of it, I began my 22nd year of unemployment. It's a strange life we freelancers lead, as we're not quite self-employed (many companies must hire us for us to make a living), we're not quite employed in the traditional sense (we don't list an employer on our tax records, and we don't report to an office every day) and then again, we are still working. Whenever possible.

The anniversary made me think about the writer's life, which is a curious one. We do something that isn't really like anything else: it's not the kind of art that people can see, really. Oh, they read the words on the page, but if we're doing our job right, they seem to be natural and inevitable, which means they don't draw attention to the person putting them there. Freelance reporters are even more anonymous: nobody reads the byline; they just assume our work is generated by some monolithic entity. "Did you see what the Gazette said today?"

Writers would be missed if we all vanished, but then, so would dog groomers, since it would be a truly bizarre occurance if an entire class of people vanished based solely on profession. But I digress.

Writers, particularly those who traffic in fiction, have a remarkably strange place in society. Those who connect with the largest numbers of people are well-known, extremely well-compensated, and their names (if not their faces) are recognized the word over. Stephen King has practically become a genre. John Grisham is a brand name. J.K. Rowling actually owns Venezuela.

The rest of us are more anonymous, and that's fine. When someone asks me if I want my novels to make me rich and famous, I usually remark that "famous" is entirely optional. I have no desire to be a household name, although my name is so common it appears in more households than I care to think about. I'm perfectly happy if people buy my books, read them and enjoy them, and remember my name only well enough to buy the next book when it comes out. That's plenty for me; I don't need the best table at Wolfgang Puck's latest restaurant. Although the occasional free dessert would not be refused.

What constantly strikes me, though, is that people I know, people I've met (and I'm talking almost exclusively about people outside the publishing and mystery worlds), when confronted with the fact that I make my living rearranging words, seem to find this astonishing, as if I invented freelancing--and writing, for that matter--all by myself.

It happens in social situations, when friends and acquaintances gather at someone's home or a restaurant and chat. I arrive, disguised as a normal person, doing my best to maintain the illusion that there's nothing especially noteworthy about me. I have myself convinced, anyway, but there's obviously something wrong with my disguise, because someone invariably sees through it and approaches. Quite often--more often than I care to think about, frankly--I am asked a question for which I have never been able to devise an adequate answer. You'd think that after countless repetitions I'd have come up with a stock line that would defuse the question, or put it to rest, but there's something about it that really puzzles me. It startles me every time I hear it:

"So. You still writing?"

Is there any other profession on this earth that elicits that question? Are bank tellers constantly having to reassure casual acquaintances that they haven't decided, against all odds, to become skydiving instructors? Is there an unreported rash of freelance writers suddenly giving up the ink-stained life to go into upholstery? Or is this a subtle dig at me in particular, perhaps? A way that the questioner is asking whether I've finally come to my senses and decided to get a real job?

I've been married for 19 years to an attorney who works for the state of New Jersey. I've seen her in any number of different social situations, ranging from small dinner parties to enormous gatherings of people in both professional and personal contexts. I have never, not once, heard anyone ask my wife if she's still a lawyer. They don't assume that just because they haven't seen her in six months or so they need to check if she's decided: "you know, the heck with the education, the law degree, the bar exam and the decades of experience. I'm going to clown college."

So, why me?

I think it's because people think writing is a hobby. They think it's something one does to kill some time after coming home from work, to unwind. It's a cute little avocation, not something intended to create income. It's certainly not an identity, like being a college professor, an accountant or a steampipe fitter. It's something done in those magical "extra" hours that I've never been able to identify. It's something one does to boost one's ego (hah!), to dispense with the odd creative impulse that might have otherwise interrupted a perfectly good day of work.

Defensive? Moi? Well, maybe. My father owned and operated a store that sold paint and wallpaper for 40 years. Well, to be totally accurate, my father was the one who sold the paint and wallpaper. The store did remarkably little beyond housing the paint and wallpaper. I'll have to ask my mother, but I'm reasonably sure nobody every walked up to him at a bar mitzvah and asked him, "so, you still selling paint? Didn't decide to become an airline pilot in the past week, did you?"

Anyone who reads this blog or dozens other, who follows publishing (and mystery publishing in particular) knows that this is no business for wimps. It's not for people who are going to change their minds and go into some other line of work when the first hint of adversity shows itself. And it's certainly not something one does on a whim.

So when someone asks me if I'm still a writer, I've had a number of canned responses I've tried. I used to say, "that's what I do," but that seemed a little bland. I toyed with, "no, haven't you heard? I'm prime minister of Lichstenstein now!" But that just got me odd looks, and I get enough of those already. These days, I'm going with "yes I am. Would you like to buy one of my books?"

What the hell. A sale's a sale.

Anatomy of a Murder

Please welcome Guest Blogger Dylan Schaffer to Murderati!

The only serious disagreement I’ve had with my publisher in the past five years related to whether the bio on the back of my first book ought to refer to one of my particularly infamous cases (along with writing books, I’m a criminal appellate lawyer). Although Peterson and Jackson and others have since occupied the center stage, for more than a year my client, Marjorie Knoller, was the nation’s leading villain. Knoller was the resident of a fancy San Francisco apartment building. One day she left her apartment with two enormous dogs; the animals got loose, and one killed a neighbor.

Knoller was charged with murder. Other lawyers represented Knoller at trial and she was convicted. I (and my colleagues) took over the case and convinced the judge who’d presided over the trial to toss out the murder charge. Knoller was left with a manslaughter conviction and a four-year sentence, which she served. (To see what a lawyer and his client look like moments after a judge throws out a murder conviction, go here.)

Publisher was perfectly happy to publicize my books by referring to other high-profile cases I’ve worked on involving rather unsavory types–the Gambino family, a very sweet elderly lady who buried nine bodies in the small backyard of her seedy Sacramento boarding house. But publisher felt strongly that while the Knoller case might draw attention, it would also make people hate me. Because it was my first book, and I knew next to nothing about the business, I conceded the point. But if I had it to do over again, I’d insist.

In an attempt to avoid precisely the fate my publisher feared, let me be clear: the victim in the case died in a horrible, appalling manner, and it’s not at all hard to see why the public was enraged at my client: if you know anything about the case, you know that she acted unbelievably irresponsibly in taking the dogs walking by herself, when she quite clearly could not control them. Also, the dogs were owned by neo-Nazi state prisoners, with whom Knoller (a Jew) and her husband had inexplicably close relations, and the animals seemed to be raised for the purpose of protecting narcotics operations or other nefarious activity. Perhaps most importantly, after a dog in her possession attacked and killed a young woman, Knoller and her husband displayed a stunning lack of contrition. It was hardly surprising when the trial court judge later told the Knollers that they were “the most hated people in San Francisco.”

Nevertheless, I am enormously proud of the work I did on the Knoller case. That is so because (a) my client was factually innocent of the charged crime and (b) the case and the result serves as a very effective teaching tool. The lesson is simple: there may be a body, and there may be a person who, from a lay perspective, seems responsible for the body; but there may not be a murder.

(If you’re a real student of the case, then you know that the result in the trial court was reversed by the Court of Appeal, and is now under review by the California Supreme Court. I am confident the high court will reinstate the trial court’s ruling, which is discussed below. Then again, I could be wrong. In any case, the discussion that follows assumes my colleagues and I are right on the law.)

Our books tend to be about bodies and the people responsible for them. But there is widespread misunderstanding of the law of murder. This is true in some very good books, I’m afraid. And I hope it won’t come as too great a shock to learn that Law & Order has massacred the law of homicide beyond recognition.

So, because dear Elaine has fled for the moment, and, in a moment of profoundly dubious judgment, left me to fill her unfillable shoes, and because the name of this here blog is Murderati, I thought I’d do a quick primer. After you read the following, you’ll be better equipped to discuss and/or write about the subject of murder than most criminal lawyers and many writers of legal thrillers.

A corpse is tangible–you can touch it, smell it, dissect it. It’s a real thing. A homicide exists at a considerably higher level of abstraction, although even the writers on Law & Order would correctly say that when a human being causes the death of another human being, a homicide has occurred. But you can see where questions might pop up–for example, what does cause mean? Knoller didn’t pull a trigger, so did she really commit a homicide? In the end, though, the existence of what is clearly a homicide–say, a gun to head killing–has no legal significance at all. You can’t be convicted of homicide. The crime is murder.

But murder does not exist. The dictionary says murder is the “unlawful killing of a human by another,” but that’s wrong, wrong, wrong. In fact, as I’ll describe below, it’s wrong in precisely the way the prosecutor and jurors got it wrong in the Knoller case. If a character in a book you’re reading (or writing) says, “she murdered her husband”, I hope, now, alarm bells will go off. The statement means nothing.

Truth is, murder is whatever we, or, more accurately, our elected representatives say it is. (To make things simple, I’ll focus on California; but while other states and the feds sometimes use different terminology, the rules are usually very similar.) Murder is a statutory wrapping around a concomitance of two things: certain kinds of conduct (say actus reas and the judge will be impressed) and certain sorts of intent (or mens rea). It’s just our way of saying that if you do X act, and you possess Y intent, you will be punished according to rules set for in the California Penal Code. If tomorrow the legislature decided to change the meaning of X and Y, or if the California Supreme Court issued an opinion interpreting X or Y in a new way, the meaning of murder would (and often does) change.

As of this writing, here’s how it works. Murder is defined as the “killing of a human (or a fetus) with malice aforethought.” Immediately we have reference to both X (conduct) and Y (intent)–X, you have to kill someone; and Y, you have to do so with a particular sort of intent we call malice.

X is easy. You picked up the gun, you aimed, you fired, the shot hit your target and the target died of trauma caused by the gunshot wound.

Y is not so easy. Malice is no more tangible than murder. And there are hundreds of opinions discussing it, many of which disagree. But there are some things we know. First, there are two kinds of malice: express and implied. Express malice is easy to describe: if you intend to kill someone, you have express malice.

(In California, there are two degrees of murder. First-degree murder is simply X + Y (where Y is express malice) + one additional element: the killing has to have been the product of premeditation and deliberation. So, how are those defined? Actually, that’s kind of a complicated question, and I think I’ll wait until Elaine asks me back–yeah, right–to get into that. Suffice to say that if you plan to kill someone, and you kill them, then you’re guilty of first degree murder. And if you plan to kill, and you kill, and you kill under one of a number of special circumstances detailed in the Penal Code–for example, two or more victims, or in combination with some other horrid crime like rape or robbery–then you’re eligible for the death penalty.)

The form of intent known as implied malice is the one that made such a mess in the Knoller case. Here’s a clear example of an implied malice killing: say I go out on New Years eve with a loaded gun and shoot through the front window of a house crowded with revelers, and say I kill someone. But let’s also say, as a matter of fact, that I didn’t intend to kill anyone; I just thought it would be fun to empty my .9mm into a crowded residence.

In this case it’s not possible to say I intended to kill anyone, so I don’t have express malice. But the legislature would like to avoid morons like me firing at crowded houses, so they say that even if you don’t intend to kill someone, if you do something you know has a high probability of leading to the death of a human being, and your conduct in fact does result in a death, then we don’t care about your lack of intent. We’re going to punish you just as severely as someone who intends to kill.

In accordance with the statutory scheme, juries in implied malice cases are told that to be guilty, the defendant must have “(a) intentionally committed an act; (b) the natural consequences of the act were dangerous to human life; (c) the defendant must have known the act was dangerous to human life; and (d) deliberately acted with conscious disregard for human life.

So, what happened in Knoller? The prosecution in that case conceded from the outset that my client never intended to kill anyone. So in order to convict her of murder it had to rely on an implied malice theory. And now you know that means it had to prove not only that her conduct resulted in a death, but also that she knew her conduct had a high probability of leading to such a death and didn’t adjust her behavior. The DA had to convince the jurors that leaving her apartment with the dogs was the same as shooting into a house filled with people.

The prosecution offered plenty of evidence that Knoller knew the dogs were dangerous: in the weeks Knoller and her husband had the dogs the animals snapped and growled at various people, they lunged repeatedly, and they had once killed two animals on a farm. One of the dogs bit Knoller’s husband on the hand when he tried to break up a dogfight.

Given this evidence, the DA could easily make the argument that Knoller was on notice that the dogs would snap, growl, lunge or bite. But the state produced no evidence at all that Knoller knew the dogs would kill a human being. And as you now know, because you’re an expert on the law of murder, Knoller could not have been guilty unless she knew her conduct was dangerous to human life and acted in deliberate disregard for that danger. Amazingly, the prosecution’s own expert testified that instances of dogs killing people are so extraordinarily rare, that as statistical matter, dogs don’t kill people. Therefore, Knoller could not have predicted her dog would kill because (a) her dog had never killed and (b) dogs, unlike guns fired into houses, don’t kill.

When the judge threw out the murder conviction based on precisely this reasoning, the prosecutor fumed that the court had ignored the will of the jury, which had convicted Knoller of murder. The problem with this argument, as the DA well knew, is that the jury had been lied to about the true nature of implied malice (an error you would never permit given your newfound knowledge of murder law). Basically, during the trial, the DA convinced the court to tell the jurors that if Knoller knew that the dogs were capable of causing serious bodily injury, then she had implied malice. But eventually the court saw that it had been wrong. Injury is not enough; to be a murderer, Knoller had to have known that the dogs would kill. She couldn’t have, and didn’t.

Once again, so I don’t spend the rest of the summer getting flamed and fighting off horrified e-mails, I’m not saying Knoller was a conscientious dog owner, or a nice person, or that the victim did not die an entirely undeserved, savage death. My point is just this: there was a corpse. There was a homicide–Knoller didn’t pull the trigger, but she took dogs out into public she knew might snap, lunge or bite, and so it’s clear she caused the victim’s death. And there was (as the foregoing dictionary definition suggests) the unlawful killing of a human being. But there was no murder.

Dylan Schaffer writes the Misdemeanor Man series. His new book, Life, Death & Bialys: A Father/Son Baking Story, is about life, death, bialys, fathers, sons, and baking. It arrives in September. Dylan also blogs and globs, stop by and say hello.