58 | Fact vs. Fiction

This Investigator then inquired what quiet time meant and Lynn went on to explain: That “quiet time” was something that her mother had every afternoon with the kids. That during a 2-hour time period, between 1:00 PM and 3:00 PM over the summer vacation, the kids were to be in the house, were not allowed to go outside, were not allowed to watch television [and] could play games quietly or read books while her mother slept for those two hours. Progress Report by Investigator Liesl McArthur dated 09/10/06: Interview of Lynn Frye

Writers of fiction know that the best source of a good believable story line and character information is from their own experiences in life, used in combination with real events. The writer takes these experiences and weaves them into a novel, while describing character traits of persons he has known. Relying on memories of things he knows happened, the writer then changes those memories while making up a story about things that did not happen…. It is important for a person who is making up a story about events and circumstances that never happened and characters that never existed to extract, convert, and apply some information obtained from real past experiences to try to make the story believable. Wendell C. Rudacille, Identifying Lies in Disguise

Although all literature in some sense derives from personal experience, it would be a serious misreading to assume that characters in a work of fiction are in any way “real.” Characters in works of fiction, though sometimes inspired by actual people, are in fact combinations of the appearance, traits and idiosyncrasies of many people, known and unknown to the author, and thus completely imagined and apart from reality…. Fictional truth has little or nothing to do with the “facts” of any real life event. Affidavit of Professor David Milofsky, July 11, 2008

For Lozow, running the clock paid off.  

Duane’s trial was set for September 2008. By then, the Arapahoe County court system had rotated Judge Spencer off the case. It was reassigned to Judge Charles Pratt, who’d been appointed to the bench three years earlier after being in a private civil practice. Inheriting Spencer’s courtroom on the eve of Duane’s trial, Pratt was thrown into the case cold. Because the pretrial hearing dragged on so long, DA Tomsic also had to withdraw to handle a death penalty case. The new prosecutor, Ryan Brackley, had been in the Manhattan DA’s Office and just moved out west.

Now the only side with institutional memory was the defense. How could Pratt and Brackley know every objection argued and won, or how witnesses had performed at the grand jury or in open court? Cold transcripts were a poor substitute for observing demeanor and how people held up under cross. Motions for reconsideration had offered Lozow a perpetual second bite. Now Pratt was a whole new apple, and into his lap Quiet Time’s fate was dumped. To Lozow, my mystery novel wasn’t fiction. Instead, Quiet Time, my notes and each of its 27 drafts were separate factual statements about Betty’s murder that he could use to impeach my credibility. He subpoenaed everything.

Haddon moved to quash Lozow’s subpoena. He argued Quiet Time was fiction, the subpoena was a fishing expedition into the creative processes of a novelist, and my notes and drafts were trade secrets and protected by the First Amendment. To educate Pratt on how novels are written, Haddon turned to David Milofsky, a prize-winning author and Professor of English at Colorado State University. Pratt accepted Milofsky as an expert in his field.

At the July 2008 hearing on our motion to quash, Haddon began by establishing that characters in a novel are often based on people the novelist knows. Novels don’t live in a vacuum, Milofsky explained; writers are affected by everything around us, and by reordering events, we try to make sense out of life. Just because writing a novel requires imagination, doesn’t mean the novelist can’t tell the difference between fiction and fact.

On cross, Lozow asked Milofsky if novels have non-fictitious characters. All characters in a work of fiction are fictitious, Milofsky said. How, Lozow asked, without knowing all the facts of the Frye case, could Milofsky opine Quiet Time was a work of fiction? Milofsky analogized it to War and Peace (which Lozow said he’d read “I think 100 years ago”); it was based on France’s invasion of Russia in 1814, but the characters were Tolstoy’s own.

Could you call Quiet Time a creative non-fiction novel? Lozow asked. No, I will call it a novel, Milofsky insisted. Lozow then argued I wasn’t a writer, but an advocate who’d inserted myself into the case. If you’ve written a book and got it published you’re forever a novelist? he demanded. It tends to infect you, Milofsky replied. So you call it a disease, Lozow said. With that he rested.

Pratt agreed Quiet Time was fiction but ordered the first draft produced in chambers. After privately reviewing it, he ruled my novel and everything else Lozow subpoenaed was inadmissible.

How clear a line is there between fiction and truth?

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