Real to Reel: Truth and Trickery in Courtroom Movies

Real to Reel

Truth and Trickery in Courtroom Movies

Real to Reel

Truth and Trickery in Courtroom Movies

Michael Asimow

Dean’s Executive Professor of Law,

Santa Clara Law School,

and Professor of Law Emeritus,

UCLA School of Law

&

Paul Bergman

Professor of Law Emeritus,

UCLA School of Law

Real to Reel

Truth and Trickery in Courtroom Movies

Michael Asimow & Paul Bergman

Published by:

Vandeplas Publishing, LLC – May 2021

801 International Parkway, 5th Floor

Lake Mary, FL. 32746

USA

www.vandeplaspublishing.com

Copyright © 2021 by Michael Asimow & Paul Bergman

All rights reserved.

No part of this book may be reproduced, stored in a retrieval system, or transmitted by any means, electronic, mechanical, photocopying, recording, or otherwise, without written permission from the author.

ISBN: 978-1-60042-536-3

Michael Asimow dedicates this book to Merrie Asimow

Paul Bergman dedicates this book to

Andrea, Hilary, Vince, Francesca and Nicky.

Table of Contents

Acknowledgments

Foreword By Arthur Gilbert Presiding Judge, California Court of Appeal

Introduction

Chapter 1. Prejudice On Trial

Chapter 2. Gender Violence and Discrimination

Chapter 3. Corruption Of Justice

Chapter 4. Expert Witnesses

Chapter 5. Familiarity Breeds Contempt (Of Court)

Chapter 6. Just a Bunch of Circumstantial Evidence

Chapter 7. Eyewitnesses

Chapter 8. Uncivil Trials

Chapter 9. Stranger Danger

Chapter 10. Laughing Matters

Chapter 11. Your….Honor?

Chapter 12. All in the Family

Chapter 13. Defamation

Chapter 14. The Death Penalty

Chapter 15. Military Justice

Appendix 1. The Production Code

Appendix 2. Law School 101

Appendix 3. Endnotes

Acknowledgments

The authors gratefully acknowledge:

Paula Noah for her original Cover Art, Peeping Justice.

Photofest, for its help in locating many of the photos in the book. 

UCLA Law School for its support; the UCLA Law Library (especially Shangching Huitzacua and Sangeeta Pal) for research help.

Santa Clara Law School.

Julie Soter and Gary Soter and Jan Pingleton

Merrie Asimow for her help in finding films and sitting through them on television as well as invaluable computer assistance.

The members of the Tuesday Noon Covid-19 Zoom group, most of whom are lawyer-graduates of UCLA Law School, with special thanks to Fred Kuperberg, Carl Albert, Ken Clayman, Jerry Fleischman, Ed Halpern, Hon. David Horowitz (ret.) and Jeff Paule for thoughtful comments on draft reviews of various movies.  Ed, we went ahead with that review anyway.

Foreword

By Arthur Gilbert Presiding Judge, California Court of Appeal

Some of my doctor friends refuse to watch medical dramas on television. A cardiac surgeon I know said he would like to take a scalpel to the scripts. The gross misinformation on medical television shows gives the public a faulty view of the medical profession and makes my work far more difficult than it already is. I suggested that most people watch these shows for entertainment, and many do not regard them as an accurate view of his profession. I asked if nervous patients wheeled into surgery ever asked a question that reflected the influence of a scene they had seen on a television show or a movie. His answer was, You would be surprised.

His comment awakened a memory that had lain dormant in the far reaches of my memory. I recalled that many years ago our family had watched a television series, in black and white, of course, Dr. Kildare, starring Richard Chamberlain. Chamberlain had trained with the Royal Shakespeare Company, not the Mayo Clinic. At the time, while Dr. Kildare was the show that everyone discussed at the water cooler, I was with my mother in line at a supermarket. Behind us was Dr. Kildare, I mean Richard Chamberlain. He was next to us, but we were not autograph hounds and left the famous actor alone. A couple approached him and asked for medical advice. Poor guy. You know the line, "I’m not a doctor,

I just play one on TV." He gave them an autograph, but did not take their pulse.

I was determined not to be influenced by my friend’s uncharitable view of medical dramas. But I realized that I felt the same way about some of the movies and television dramas I had seen over the years dealing with the law. My decades spent as a lawyer and judge no doubt contributed to my yelling at the television screen when I saw lawyers interrupting one another before an insouciant judge. Decorum inhibited me from doing the same in a movie theater. I heard Justice Holmes whispering in my ear, Don’t yell [bullshit] in a crowded theater.

Trials are conducive to portrayal in movies. A trial, by its nature, is theater. The courtroom is in fact a set one might find in a movie or on the stage. While it rankles me to characterize courtroom lawyers as actors, like actors, they utter lines, and do so in a certain order. The movie director has a more creative role than the judge in the courtroom, but both control the proceedings and decide what can and cannot be said.

But what movies compress into a few hours may happen over months, years, even centuries. Wordsworth remarked that poetry is emotion recollected in tranquility. But poetry is designed to elicit and even magnify the emotion. Artful compression allows us to feel intensely the drama, the significant and emotional power that underlies the actual event. There is painstaking care in artful movie making that makes important points in highlighting the drama.

Both real trials and those portrayed in movies take time and involve what some may view as drudgery. I prefer to view this kind of drudgery as hard work. This is the drudgery the lawyer and artist accepts and may even enjoy. Obviously, more time goes into a trial than what occurs in the courtroom. There are endless hours with the client, the research and the investigation. A good script may even bring the drama of research to the audience. Prior to the Internet, we saw the lawyer or associate surrounded by open law books in the office law library late at night, Styrofoam cup half-filled with coffee on the large library conference table. His shirt is unbuttoned, his tie askew, or, more recently, her shoes are off, she is bleary-eyed at a computer screen and shouting, Yes, I found the case that is the winner for us!

I was disabused of the notions I had about the practice of law on film and in real life during my first day in law school. The formidable Dean William Prosser walked back and forth before our first-year class assembled in the tiered amphitheater classroom and spoke these encouraging words: Look to the left, look to the right, one of those persons will not be here at the end of the semester. I looked to the left and looked to the right…and almost fainted. I was sitting on the aisle. It was later when I saw The Paper Chase that I realized underlying my terror at finals and the bar exam was real-life drama.

After I passed the bar and became a Deputy City Attorney in Los Angeles, I tried criminal misdemeanor offenses. Some elderly folk, probably people my age now, came regularly to the court to watch the trials. We called them court watchers. One court watcher was John, a dignified gentleman who was a holdover tenant in one of the abandoned apartments about to be razed for condominiums near what became the site for Disney Hall several decades later. John and I became friends and I asked him whether he was bored watching endless drunk driving, petty theft and other misdemeanor cases. John told me he loved the drama of the courtroom no matter what the trial. He liked guessing how the jury would decide a case or how the judges would rule on motions. He even offered friendly critiques of my courtroom performance. Note the word performance. I received better advice from John than from some of the trial advocacy courses I attended.

How fortunate we are to have Professors Bergman and Asimow offering invaluable insights into the movies we love to watch and critique. Bergman and Asimow induce me to once again watch movies I have seen and can now appreciate with a more discerning eye. No longer will I complain when watching Henry Fonda in 12 Angry Men stick a knife into the jury room table. That he is defacing government property is beside the point. The book illustrates why, as the authors say in their Introduction, The courtroom genre remains endlessly popular with both filmmakers and audiences. They do not criticize reel trials for not accurately reflecting real ones. Instead, they use the compelling stories of reel trials as an entry point to provide readers with a richer understanding of American law and justice. Look to the left, look to the right, then relax and enjoy the journey.

Introduction

Trials as sources of justice and entertainment date back at least to ancient Greece, when crowds gathered to hear orators argue the merits of their positions. Courtroom movies continue this tradition. Viewers are the ultimate jurors to whom cine-lawyers direct their arguments. Popular culture (including movies and television) becomes an important source of information from which its consumers construct beliefs about law, lawyers and the legal system. Movies also teach viewers about historical events and trials, as in Judgment at Nuremberg, Inherit the Wind, The Trial of the Chicago 7, Amistad, and Young Mr. Lincoln.

The courtroom genre remains endlessly popular with both filmmakers and audiences. A courtroom film can use the trial process to reveal a compelling personal story about people caught up in a legal dispute. A good movie plot requires conflict and suspense. Trial movies always include conflict between the lawyers, judges, and litigants. And the stories have built-in suspense—What will the witness say? Is a lawyer about to trick a witness? What will the verdict be? The genre allows filmmakers to explore important political and cultural issues such as racism, corruption, gender roles, the death penalty, and the conflict between law and justice. Filmmakers appreciate that trial films are inexpensive to make, since they seldom involve costly special effects such as exploding cars. And some of them, like My Cousin Vinny, Adam’s Rib and Bananas, are very funny.

This book travels from real to reel by reviewing over 200 courtroom movies, starting with a 1929 early talky. We focus primarily on movies in which significant events take place in a courtroom, defined broadly enough to include pretrial discovery, plea negotiations, jury deliberations and appellate court arguments. To keep our book within reasonable size limits, we do not include documentaries, made-for-TV films, or television series, even though each of these categories includes many fine courtroom stories. We include a few foreign language courtroom movies that we consider especially notable.

Our book can serve as a video guide to help you identify courtroom movies you might like to watch. But we hope it is much more than that. We provide gentle legal analyses of the movie’s courtroom highlights and background information on the legal and ethical issues raised by the movie. When a movie is based on a true story, we furnish information about what really happened. We hope our reviews entertain you as they deepen your understanding and enjoyment of the movies.

In line with its subtitle, a recurring theme of this book is that while adversarial trials are intended to discover the truth, they can never really establish what happened in the past. Sometimes, we see the trial process at its best. Truth is revealed. Wrongdoers receive justice, as in The Accused or Philadelphia, and innocent defendants walk free, as in The Wrong Man. But often, the trial process obscures the truth and seems to dispense injustice, as in A Man for All Seasons. Witnesses lie and the jury is fooled, as in 10 Rillington Place. We wonder, in watching Anatomy of a Murder, whether Paul Biegler’s trial strategy reveals or conceals the truth about what happened between Barney Quill and Laura Manion. Did attorney Jan Schlichtmann in A Civil Action uncover the truth about pollution in Woburn, or is truth found only at the bottom of a bottomless pit as his adversary Jerome Facher declares.

Of course, courtroom lawyers are not above employing a little trickery in the service of their clients and some of the best moments in courtroom movies involve such pranks. Did attorney Andrew Morton cross the line with his wine-spilling prank in Knock on Any Door? How about Tony Lawrence’s whiskey-sniffing trick in The Young Philadelphians? Or Steve Barnes’ gun-waving stunt in Criminal Court? Trial trickiness, of course, isn’t limited to the lawyers. Clients often try to fool their lawyers, as they do in Primal Fear, Jagged Edge, or The Lincoln Lawyer.

Our goal in this book is to entertain and enlighten, not to criticize movies for getting it wrong. After all, real is different from reel justice, and the courtroom genre would quickly disappear if films were faithful to the tedious formalities of actual trials.

American courtroom films are popular the world over because the adversary system is at least as well suited to storytelling as it is to dispensing justice. The mano-a-mano exchanges between lawyers, witnesses, and judges can provide drama, suspense, surprise or comedy, and turn abstract disputes over such issues as evolution and military discipline into riveting personal battles.

Most chapters consist of longer reviews followed by selected shorts. Our decision to review some movies as selected shorts is based on their limited courtroom activity or analytical value, not on their ability to entertain. We provide gavel ratings for all films based on our judgment of their overall quality and the entertainment value of their courtroom scenes. Four gavels denote a classic, three gavel movies are quite entertaining, two gavelers are good, while a one-gavel rating suggests that you ask for a new trial.

Longer reviews begin with a brief Opening Statement, which as in real trials provides a roadmap to the central themes of the movie. Courtroom Closeups describe and analyze the important courtroom events and help you distinguish truth from trickery. Beyond the Courtroom sections highlight legally salient events that occur outside the courtroom. For the Record segments provide information about the actual cases on which many of the movies are based, the lawyers who appeared in them, and the filmmakers who turn real events into reel ones. Finally, Spoiler Alerts warn of twist endings. They refer readers who want to know how a movie ends to the Endnotes in Appendix 3.

Three Appendices expand the scope of the book. Appendix 1 describes the Production Code, a censorship system that affected the content of Hollywood movies from the mid-1930’s to the mid- 1960’s. Appendix 2 provides a brief overview of principal features of American law and justice and cross-references to movies in which those features arise. Appendix 3 consists of Endnotes that provide references to additional sources of information for many of the movies and sometimes information about twist endings.

While we hope that the reviews are enjoyable and educational, they are not equivalent to watching the movies. Our fervent desire is that the reviews will stimulate you to watch movies that you’ve never seen and re-watch those that you have. Movies reflect the collective efforts of many talented writers, directors and performers, and reel experiences create legal meaning and emotional richness that words alone cannot capture.

Fortunately, digitization continues to create opportunities to watch movies, even the oldest talkies. While future advances are likely to expand these opportunities, at present you can access movies in a variety of ways:

Many of the movies are available on DVD or other tangible electronic sources.

Television channels such as TCM (Turner Classic Movies) screen movies 24/7.

Video streaming services have vast film libraries for rent or purchase. Check justwatch.com for lists of streaming services that offer a particular film.

Movies are sometimes freely available for online viewing (for example on YouTube).

We invite you to make some popcorn, pull up a chair, and have a good time watching and reading about the courtroom movies of the past and present.

Chapter 1

Prejudice On Trial

Prejudice against the other is an enduring human trait. Prejudice intrudes into the justice system in the form of discrimination based on race, gender, disability, or sexual orientation. As in real trials, some of the reel trials reviewed in this chapter represent inspiring victories by victims of discrimination, while others represent tragic defeats.

Amistad

1997

Starring: Matthew McConaughey, Anthony Hopkins, Djimon Hounsou

Director: Steven Spielberg

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Opening Statement

Cinque leads a successful mutiny by captured Africans aboard the slave ship Amistad. The mutineers kill everyone on board except for two Spanish slave traders who betray them by sailing the ship to the U.S. A tangle of litigation begins in the Connecticut federal district court and in 1841 ends up in the U.S. Supreme Court. There, former President John Quincy Adams urges the justices to set the captives free.

Courtroom Closeups

The charges of piracy and murder subject the mutineers to the death penalty. But three other parties intervene and with different motives seek to keep the captives alive. U.S. President Martin Van Buren argues that under a treaty the captives are Spain’s property. Two Naval officers claim that salvage rights make them the rightful owners of the captives and the ship. The Spanish slave traders claim that they own the captives, who they purchased legally because the captives were born in Cuba (at the time a Spanish colony). Opposing them all is attorney Roger Baldwin, who argues that Cinque and the other captives were captured illegally in Sierra Leone, a British protectorate that does not allow slavery. Cinque’s testimony and documents aboard the Amistad convince the judge that the captives were born in Sierra Leone. Though he was handpicked by Pres. Van Buren, the judge sets them free and orders the government to return them to their home. Van Buren apppeals to the U.S. Supreme Court. Seven of the nine justices are Southern slave owners.

Amistad. Cinque (Djimon Hounsou) and his fellow slaves assert their right to freedom after hijacking the Amistad. DreamworkSKG/Photofest

Van Buren does not want the slaves to go free because it might cost him the support of the Southern states in the upcoming election.

Baldwin forgoes broad moral arguments about the evils of slavery in favor of a narrow focus on the legal status of the captives as citizens of Sierra Leone.

Baldwin convinces former President John Quincy Adams to argue the case for freeing the captives in the Supreme Court. Adams argues, The natural state of mankind is not slavery but freedom…If it means civil war let it come. And when it does, may it be finally the last battle of the American Revolution.

The Court frees the captives. The decision states that the captives are free individuals who had the right to engage in insurrection against those who would deny them their freedom.

Cinque’s testimony that the captives were seized in Africa was critical. Had the captives been Cuban, their purchase by the slave traders would have been legal. They would not have been entitled to seize the Amistad since they had no freedom to defend. Under Article 9 of the 1795 treaty between the U. S. and Spain, the courts would have to return them to their lawful owners.

Beyond the Courtroom

After Pres. Van Buren replaced the Connecticut jury and trial judge with his hand-picked replacement, an abolitionist cynically responds by saying he is embarrassed to admit that I was under the misconception that our executive and judicial branches were separate.

For the Record

Justice Story, who announces the Supreme Court’s opinion, was played by then-retired Supreme Court Justice Harry Blackmun.

Adams’ actual argument lasted eight and one-half hours, quite a contrast to the modern Supreme Court where arguments are usually limited to 30 minutes. Some of Adams’ argument in the film is fictitious. For example, he didn’t welcome the Civil War.

The Court’s opinion did not question the institution of slavery in the U.S. or in Cuba. Only a few years later, in the notorious Dred Scott case (1857), the Court held that American slaves could not be treated as citizens, even if they escaped to free states. Nevertheless, the Amistad case is one of the greatest civil rights decisions in the history of the Supreme Court and a monument to its independence from the executive branch.

Based on two words in a memoir of antislavery activist George Thompson that Cinque conducted badly in Sierra Leone, rumors developed that Cinque became a slave trader after his return from America. However, the rumors are undoubtedly false.

Roger Baldwin was a grandson of one of the signers of the Declaration of Independence. He later became Governor of Connecticut and a U.S. Senator. One of his co-counsel in the case was Seth Staples, who founded the Yale Law School.

Barbara Chase-Riboud sued the film’s producer DreamWorks and Steven Spielberg, claiming that the film infringed on her book Echo of Lions. A court refused her request to halt the opening of the film. Later, Chase-Riboud dismissed her lawsuit and praised the film, but whether she got any money has never been disclosed. Many argued that the litigation seriously damaged Amistad’s Oscar prospects.

Ghosts of Mississippi

1996

Starring: Alec Baldwin, James Woods, Whoopi Goldberg

Director: Rob Reiner

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Opening Statement

Two 1964 trials of violent southern white racist Byron de la Beckwith for assassinating black civil rights leader Medgar Evers ended with hung juries. In 1994, thirty years later, Bobby DeLaughter prosecutes Beckwith a third time and rectifies one of the horrible injustices of the Civil Rights Era.

Courtroom Closeup

The juries in the 1964 trials were all-male and all-white; the 1994 jury is racially and gender diverse. Myrlie Evers testifies that she heard the gunshot that killed her husband as he arrived home. A criminalist testifies that Beckwith’s fingerprints were on the rifle from which the fatal bullet was fired. A former KKK member turned FBI informant testifies that at a KKK meeting that was held after the two hung juries, Beckwith bragged, Killing (Evers) gave me no more inner discomfort than our wives endure giving birth to our children.

Defense witness Holley provides Beckwith with an alibi, claiming that he saw Beckwith at a gas station about 90 miles away from Evers’ house at the time of the murder. DeLaughter easily debunks the alibi. Holley was Beckwith’s good friend and a police officer in 1964, and he knew that Beckwith was in jail following his arrest for killing Evers. Yet Holley didn’t mention the alibi to police investigators until eight months after Beckwith had been charged with murder.

DeLaughter argues to the jury, When a person is murdered because he wants some degree of equality for himself and his family, no matter who the victim and no matter what his race, there is a gaping wound laid open on society as a whole. Justice is the soothing balm to be applied to the wounds. Beckwith is finally convicted of the murder of Medgar Evers.

Not shown in the film is the testimony of prosecution witnesses who placed Beckwith’s car near Evers’ house on the night of the murder. Also, DeLaughter read into the record from the official transcript the testimony of deceased or missing witnesses in the first 1964 trial. Though their testimony was hearsay, it was admissible because Beckwith had an opportunity to cross-examine the witnesses when they testified.

There is no statute of limitations for murder, but the defense argued that the 30-year delay denied Beckwith his rights to due process of law and to a speedy trial. The defense pointed out that the state could have prosecuted him again at any time, and argued that the delay was prejudicial, because Beckwith was in poor health by 1994 and evidence was stale or missing. Probably the real reasons for the delay were to wait until the climate for convicting racist killers in Mississippi changed and a prosecutor came along with the gumption to retry the case. The Mississippi Supreme Court twice rejected the defense objections, each time by a single vote.

Beyond the Courtroom

DeLaughter’s courtroom victory came with personal losses. His wife divorced him, white society shunned him, and he and his children were threatened and placed in physical danger.

In a familiar scenario, DeLaughter forged ahead with the case despite the objections of his boss, who didn’t want to devote time and money to an old case or rekindle old hostilities

For the Record

Beckwith died in prison in 2001. He was an equal opportunity hater who went after Jews as well as blacks. In addition to assassinating Evers, he served several years in prison after he was caught transporting a bomb intended to blow up the home of a Jewish activist in New Orleans.

DeLaughter’s father-in-law, Judge Russel Moore, was a notorious racist.

Johnny Belinda

1948

Starring: Jane Wyman, Lew Ayres

Original Play: Elmer Blaney Harris

Academy Award: Best Actress (Jane Wyman). The film was nominated for a total of 12 Oscars.

Director: Jean Negulesco

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Opening Statement

Belinda MacDonald is a deaf mute, a town laughingstock whom everyone calls Dummy. Locky McCormick’s rape of Belinda results in the birth of her son Johnny. When Locky and his wife Stella try to take Johnny against Belinda’s will, Belinda shoots Locky and is tried for murder.

Courtroom Closeup

Stella testifies falsely that Belinda shot Locky for no reason. Belinda testifies in sign language; the interpreter is Dr. Richardson, a kind friend who taught her to sign. When Dr. Richardson tries to protect Belinda from the screaming prosecutor’s questions, the prosecutor accuses the doctor of fathering her child. Stella then courageously steps forward to say that Belinda shot Locky after he grabbed Johnny, intending to steal him away for Stella to raise. The judge exonerates Belinda, ruling that she acted in defense of her home, and justice will always protect the private citizen against those who would interfere with his rights and his dignity as a human being.

Belinda is on trial, but the real defendant is the prejudiced community that treated her as sub-human. The prosecutor’s nastiness exposes the harms that prejudices visit on the people who hold them. Stella’s bravery and the judge’s ruling emphasize the importance of abandoning prejudice and protecting the decency and humanity of all people.

As an interpreter, Dr. Richardson would be sworn to translate Belinda’s testimony accurately and would not be allowed to interject his own comments into the trial. Large and diverse metropolitan court systems often need interpreters for witnesses and parties who do not speak English. Court staff may include interpreters who can interpret sign language or speak common non-English languages such as French, Spanish or Chinese. When a government-paid interpreter is not available, parties and judges often stipulate (agree) that a family member or friend can serve as the interpreter for a non-English speaker.

Beyond the Courtroom

A town leader voices the community’s resentment of strangers, telling the doctor, We do not appreciate people coming here. Strangers who do not follow our ways of living. There are men here who can be very angry and something can happen. The films we review in the Stranger Danger chapter further illustrate the uneven justice that strangers often face.

For the Record

At the Academy Awards ceremony Jane Wyman gave the shortest-ever Best Actress acceptance speech: I accept this award very gratefully— for keeping my mouth shut. I think I’ll do it again!

The Production Code (see Appendix 1) normally barred any treatment of rape. The Code provided, Seduction and rape should never be more than suggested; and only when essential for the plot, and even then never shown by explicit method. Johnny Belinda includes a fairly graphic image of rape and is thought to be the first Hollywood film since adoption of the Code to do so.

The film was the first to allow a hearing audience to experience the evolution of a deaf character from a negatively stereotypical dummy to a human being who happened to be deaf. It was also the first film to use sign language not as a gimmick, but instead to enhance the spoken word. Suspect, which we review in this book, also features a defendant on trial for murder who can neither speak nor hear.

To prepare for Johnny Belinda, a consultant was hired to teach Jane Wyman and Lew Ayres sign language, and Wyman also learned lip reading. Wyman spent time observing a young girl who had been born deaf. But even with all the preparation, she realized that something was lacking. So a doctor devised wax earplugs which blotted out the lines spoken by other actors.

In the original stage play, Belinda struggles to utter a word or two at the end of the play. In the film she is silent throughout.

Murder!

1930

Starring: Herbert Marshall, Norah Baring

Director: Alfred Hitchcock

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Opening Statement

Cross-dressing actor and trapeze artist Handel Fane kills Edna Druce to prevent her from revealing that he is of mixed race but passing as Caucasian. (The film refers to Fane as a half-caste, a common term at the time it was made but derogatory today.) Jury foreperson Sir John Menier is convinced the jury made a mistake when it convicted Diana Baring of Druce’s murder. Sir John conducts his own investigation. He closes in on Fane, who rights the scales of justice in a classic final sequence.

Courtroom Closeups

The jurors swivel their heads back and forth in unison as witnesses testify and lawyers argue.

The jurors resemble spectators at a tennis match, suggesting that they consider the murder trial to be a form of entertainment. Their uniform actions suggest that they are of a single mind, an image that the jury deliberations soon reinforce.

Much of the evidence emerges through the comments the jurors make as they deliberate. Druce and Baring were members of an acting company. They were together on the night Druce was stabbed to death with a fireplace poker. Baring was holding the poker when the police found her, but she can neither confirm nor deny that she killed Druce. Jury foreman Sir John Menier, a famous actor, argues for Baring’s innocence. But each time he mentions evidence that favors Baring, one of the other jurors points to contradictory evidence. They surround Sir John and follow up each juror’s comment by reciting in unison, What do you say to that Sir John? Sir John eventually votes to convict Baring and she is sentenced to death.

Sir John resembles Juror No. 8 in 12 Angry Men, another film that we review, except that Sir John is unable to convince anyone to vote Not Guilty. The jurors’ tight circle around Sir John and eerie staccato repetition of What do you say to that Sir John? emphasizes the futility of his task. Like the defendant Baring, he is trapped.

Beyond the Courtroom

When Sir John’s crime scene visits and witness interviews lead him to identify Fane as Druce’s killer, he asks Fane to write part of a scene in a play that Sir John has written about Druce’s murder. Realizing from the play’s details that he has been found out, Fane ends his trapeze act by forming a rope into a noose and jumping off the high platform. While Fane dangles in the air, Sir John reads Fane’s finished murder scene aloud. Baring is set free. Other films we review in which juror investigations produce justice include 12 Angry Men and Suspect. (In those films the jurors acted improperly because the investigations took place while the trial was ongoing.) Few jurors would investigate a case after the verdict has been rendered. More likely, jurors who have second thoughts about a verdict might disclose the reasons for their doubts to the losing party’s lawyer. A lawyer who follows up and uncovers information that casts doubt on the verdict could move to set aside the verdict based on newly discovered evidence and ask for a new trial.

The one drop of blood policy that was often enshrined into law and cultural attitudes meant that if Druce revealed Fane’s mixed-race heritage, he would be regarded as Black. As an actor and circus performer, Fane had good reason to fear that the revelation would severely damage his career.

There is little likelihood that a lone holdout juror can convince other jurors to change their votes. Indeed, quite often the other 11 jurors ask the judge to remove the holdout from the jury for refusal to participate in the deliberations in good faith. A famous empirical study of criminal juries conducted in the 1960’s found that with very few exceptions, the first ballot determines the outcome of the verdict. Deliberations following a first ballot had no effect on the final verdict in nine of every ten cases. When the first vote was a lopsided 11 to 1, peer pressure almost always forced the holdouts to agree with the majority.

Unusually for a 1930 film, the defending barrister is female and the jury includes both men and women.

Murder! emphasizes the close relationship between adversarial trials and theatrical productions, a connection that dates back to Aristotle. The lawyers in a trial are like actors in a play, conducting staged dialogues with witnesses, telling conflicting stories, pulling off visual demonstrations and special effects, and trying to connect emotionally to their audience, the jury. The movie Chicago, reviewed in this book, treats a murder trial like a circus, switching back and forth between the trial and the spectacle.

For the Record

The Hollywood Production Code (see Appendix 1) was adopted in 1930, around the time that talkies replaced silent film. The Code prohibited films that dealt with racial prejudice. However, the Code was not enforced and filmmakers often ignored it. In July, 1934, the Production Code Administration (PCA) began strict enforcement. Any movie that lacked PCA approval could not be exhibited in theaters. Movies made between 1930 and 1934, like this one, often have refreshingly candid treatment of subjects that violate the Code.

The great director Alfred Hitchcock made a number of courtroom movies we review in this book. In addition to Murder! they include The Wrong Man, The Paradine Case, and I Confess. Hitchcock also directed a silent film Easy Virtue (1928) about a nasty divorce trial. The master of suspense took good advantage of the built-in suspense inherent in the trial process.

Philadelphia

1992

Starring: Tom Hanks, Denzel Washington, Mary Steenburgen

Academy Awards: Tom Hanks (Best Actor); Bruce Springsteen (Best Original Song)

Director: Jonathan Demme

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Opening Statement

Andrew Beckett sues his big Philadelphia law firm Wyant, Wheeler for employment discrimination, alleging that the firm fired him because he had AIDS. The firm argues that Beckett was fired for doing poor work, particularly misplacing the complaint in a major case. Beckett’s lawyer Joe Miller renounces his homophobia, courageously tackles the biggest firm in town, and wins an epic courtroom battle.

Courtroom Closeups

Miller’s opening statement promises the jurors that Beckett was—is—a brilliant lawyer. He concedes that the law firm partners may have acted reasonably, as AIDS is deadly and incurable. Nevertheless, the partners broke the law when they fired Beckett because he had AIDS.

Miller doesn’t need to prove Beckett’s brilliance. In fact, Beckett’s claim can succeed even if he was a mediocre lawyer, so long as the jury concludes that the partners fired him because of a disability. However, the fact that he was a brilliant lawyer—and had been entrusted with responsibility for a critical case—makes it harder for the law firm to prove they fired him for poor work rather than for having AIDS. Miller’s ploy of empathizing with the partners’ fear of AIDS rather than demonizing them was an effective rhetorical strategy, since the jurors probably shared the same terror of AIDS. At the time Beckett was fired, AIDS was invariably fatal, and people did not know how the disease was spread.

Defense lawyer Belinda Conine tells the jurors that Beckett was fired because his work was sub-standard. She also contends that because Beckett concealed his illness, the partners didn’t know he had AIDS. The lawsuit, she argues, is Beckett’s way of lashing out in rage at the law firm because his reckless behavior will shorten his life.

Conine’s opening statement is condescending and tone deaf. Harsh criticism of a plaintiff who is dying of AIDS is bad strategy. An empathic, respectful tone would be much smarter. And Conine’s blame-the-victim strategy is risky, since the pitiful-looking Beckett does not appear to be full of rage.

Andrew Beckett (Tom Hanks) and lawyer Joe Miller (Denzel Washington) pursue an AIDS discrimination claim. Tristar/Photofest

Conine and Miller engage in competing mirror demonstrations. To disprove Beckett’s claim that a partner noticed an AIDS lesion on his face, which led to the decision to fire him, Conine asks Beckett to hold a mirror up to his face and asks if he can see any lesions. Beckett admits that no lesions are visible. Miller responds by holding the mirror up to Beckett’s bare chest; reflected in the mirror is a chest full of sickening lesions.

The lack of visible lesions on Beckett’s face at the time of trial is irrelevant because it says nothing about whether a lesion was visible to the partners when they fired Beckett, an event that occurred long before the trial. Miller’s display of the lesions on Beckett’s chest is equally irrelevant but is very effective as a visual demonstration to the jury of Beckett’s agonizing disease. Miller might have objected to Conine’s demonstration but perhaps decided to forego objecting so he could conduct his own mirror trick and claim that Conine had opened the door to it.

The judge allows Conine to ask Beckett about having sex with a stranger at the Stallion Cinema. Miller is allowed to engage in a rant about gay stereotypes. An African-American paralegal at the law firm is allowed to testify that the partners criticized her earrings as too ethnic.

This testimony adds entertainment value to the movie, but none of it has anything to do with the legal issues that must be decided by the jury. Lawyers are not permitted to interrupt the trial by making speeches, as Miller does; that’s reserved for the closing argument.

Beyond the Courtroom

A poignant highlight of the film occurs when Miller, who is doing research in a law library, notices Beckett looking very ill and doing the same. Miller watches a law librarian try to move Beckett to a different room where he will be more comfortable. When Miller walks over to Beckett, Beckett shows him a judicial opinion and together they read a passage that analogizes prejudice against African-Americans to discrimination against people with AIDS. These incidents remind Miller, who is Black, that for many people, he and Beckett both are the other. Their shared experiences of victimization lead Miller to reverse course and represent Beckett.

When Miller asks Beckett what he loves about the law, Beckett responds, Every now and again, not often but occasionally, you get to be a part of justice being done.

The law firm partners sit together at the defense counsel table; all are haughty and dressed in expensive suits. At the plaintiff’s table, Miller and Beckett sit alone. Conine paints exactly the wrong picture for the jury of a big affluent law firm beating up on a dying plaintiff.

The movie centers on the personalities of three lawyers.

Andrew Beckett is the most positive representation of a gay lawyer in movie history. He’s a great lawyer and has a loving and mutually supportive relationship with his partner.

Joe Miller is one of the most positive and balanced presentations of a Black lawyer in movie history. He is a hustling, homophobic street lawyer who is redeemed through his work for Beckett.

Charles Wheeler, the senior partner of the law firm, was Beckett’s role model. He turns out to be viciously homophobic. Normally a brilliant lawyer, he makes a terrible mistake in taking the Beckett case to trial instead of settling it. His firm must pay substantial damages and attorney fees as well as suffer a crushing blow to its reputation.

For the Record

The film was based primarily on the case of a New York City lawyer named Geoffrey Bowers who was fired by the mega-firm of Baker & McKenzie. Seven years after his death from AIDS at the age of 33, Bowers’ family won a $500,000 award from the New York State Department of Human Relations. Baker & McKenzie appealed, and the case settled in 1995 for an undisclosed sum. Later, Bowers’ relatives sued the makers of Philadelphia, claiming that the filmmakers reneged on their promise to compensate them for providing details about Bowers’ life. Seven days into the trial, the film’s producer settled the case for a figure in the mid-7 figure range and acknowledged that the film was inspired in part by Bowers’ life.

The film was also based on a case in Philadelphia. Hyatt Legal Services (a law firm offering low-cost standardized legal advice) fired a lawyer named Cain after discovering that he had AIDS. In the path-breaking case of Cain v. Hyatt, the court held that firing an employee because he had AIDS was illegal disability discrimination and that prejudice and misinformation about the disease could not be the basis for discrimination. The Cain decision is still followed today under the federal Americans with Disability Act. As long as employees with HIV can continue to do the work (with reasonable accommodation for the illness, such as time off for medical treatment), employers are not permitted to discharge them.