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© 1987-2016
Scott Larson





Building façade in Cannes, France

Trials and tribulations

We live in litigious times. And by “we,” I mean anybody who lives in a society with any kind of free judiciary. Turn on the evening news just about anywhere and you will almost certainly see at least major story that involves proceedings in a courtroom.

Just in the past few days we have seen major plot developments in several high-profile trial narratives that get major coverage in America and elsewhere throughout the world. A U.S. military commission threw out the case against two Guantánamo detainees on the technical principle that it did not have jurisdiction in the case. Former Dick Cheney’s chief of staff Scooter Libby was sentenced to two and a half years for obstructing justice in the Valerie Plame case. And sitting Louisiana Congressman William Jefferson was indicted for solicitation, racketeering, money laundering, wire fraud, conspiracy, and violation of the Foreign Corrupt Practices Act. A quick visit to Google will confirm that there are lots more high-profile legal proceedings going on, and let’s not even go anywhere near the whole Anna Nicole Smith thing. And let’s not forget about all the major issues that regularly come before the Supreme Court.

Through all these verdicts and court rulings, partisans on every side automatically decry or praise the outcomes, depending on whether they see them as hindering or helping their side of the overall political competition. It’s not an exaggeration to say that politically engaged people see courtrooms as one more political venue where it is all about winning or losing. Supposedly, justice is blind, but then that is what most people say about the referee when their favorite team loses.

Maybe I am just different, but I seem to remember from my elementary school civics classes that judges and courts were meant to be dispassionate, neutral and above politics. But, of course, it is naive to believe that human beings, just because they are anointed as judges, can leave their personal beliefs and deepest biases behind when they decide cases. That is why we have an elaborate system of appeals courts and why legislatures have the power to cancel most rulings by passing laws. But this has no effect on political partisans, pundits and the media in general from spinning controversial court cases into morality plays that conform to standard narratives. At least politicians can be counted on to stick to one high-minded principle: if it helps our side, it’s good. If it helps the other side, it’s bad. Thus we get the spectacle of Republicans impeaching a president for lying to a grand jury while Democrats defend him, followed a few years later by Republicans defending Libby for lying to a grand jury and Democrats saying the crime is an indicator of pure evil.

To be fair, Democrats were consistent in one key way in both cases. In both situations, they argued (and successfully, for the purposes of influencing public opinion and, ultimately, legal outcomes) that the trials were “really about something else.” In the case of the Clinton impeachment, they argued that the issue was not really about obstructing justice (which was what Clinton was impeached for) but “really about” prosecuting him for his private sex life. In the case of Libby, they argued the case was “really about” a campaign of intimidation of critics of the Iraq invasion. This is a theme that we see over and over in high-profile, politically charged court cases: the idea that, while the case is technically about one crime, it is really about something else that the defendant has not actually been charged with. Where does this idea come from? As with most things key to understanding our modern culture, the answer can be found in the movies.

Actually, I think that a lot of the screwy ideas that people have about how the judicial system works, or ought to work, can be traced to popular films. If movies don’t actually cause people to have the screwy ideas, then the movies at least reflect the screwy ideas. The notion that a trial is “really about” something other than what it is ostensibly about can be traced, at least in my own memory, to Al Capone. I remember the same elementary school teacher, who was telling me about how the courts were supposed to be totally neutral and consider only charges and evidence put before them, also telling us approvingly about how the feds “got” Al Capone for income tax evasion. The story was well told on the silver screen in Brian De Palma’s 1987 based-on-actual-events flick The Untouchables. Despite all the heroics of G-man Eliot Ness (Kevin Costner), the feds couldn’t nail Capone (Robert De Niro) for any of the serious violent crimes he had committed or had had committed. In the end, it is nerdy accountant Charles Martin Smith who manages to nail the mobster, by establishing that he has not paid taxes on his ill-gotten gains. In my mind at least, this seems to be the root of the idea that, if you know somebody is bad, you prosecute him or her any way you can. And, if you can’t prosecute him or her for the thing they are most bad for, prosecute them for something else, but everyone will know that it was “really about” something else. Now don’t get me wrong. Al Capone was a very bad man and he deserved to go to jail and he really did evade paying taxes. Prosecuting him for this made perfect sense. But it is a leap of logic and law to say that a conviction for tax evasion is “really” a conviction for racketeering. Or a conviction for perjury is “really” a conviction for plotting against political enemies. Is this switch-and-bait prosecution phenomenon more commonplace than it used to be? I’d say yes, and mainly because of the post-Watergate rise of the special prosecutor or counsel. As Clinton and Libby both found out, when you give a prosecutor more or less unlimited time and money and one case to look at, he or she will eventually find something—even though it often seems to be something like obstruction of justice, as opposed to the original crime. (Both men also found out that it is a really bad idea to lie to the FBI and/or a grand jury—regardless of the circumstances.)

If The Untouchables is our movie prototype for the way controversial prosecutions have evolved, what flicks would be the templates for popular ways of seeing judges and juries? There are endless numbers of movies that revolve around a courtroom to choose from. A few that come to mind (in alphabetical order): The Advocate, Agnes of God, The Caine Mutiny, Chicago, A Few Good Men, Inherit the Wind, Mr. Deeds Goes to Town, My Cousin Vinny, Philadelphia, Sleepers, The Verdict and others too numerous to mention. And let’s not forget the movies (e.g. The Client, A Time to Kill, The Rainmaker, Runaway Jury) based on novels by John Grisham. One thing that many of them have in common—and I actually believe that this goes a long way to coloring the way ordinary people, as well as those in the media, see trials—is that a standard convention that, in the end, some no-nonsense but fair judge cuts through all the b.s. and just dispenses common-sense justice. Perhaps the best example of this is the small but memorable role that Wilford Brimley played in Sydney Pollack’s Absence of Malice, in which he takes charge of an informal hearing into a bogus federal investigation targeting honest businessman Paul Newman and, in the words of Roger Ebert, “reduces everyone but Newman to quivering surrender.” Seeing the bad guys get their come-uppance by an eminence grise with the wisdom of Solomon is a guaranteed feel-good climax for a popcorn flick. And we want reality to be like this. So every time there is a major trial where people are emotionally invested in a public trial because they see good guys and bad guys, they long for an ending like Absence of Malice. And, as it happens, those who saw Scooter Libby as part of something evil have gotten their wish—pending appeals.

If I had to pick one signature movie that exemplifies the do-gooding, feel-good, don’t-let-legal-technicalities-get-in-the-way judge, it would have to be the 1947 version of Miracle on 34th Street, in which Judge Henry X. Harper (played by Gene Lockhart) refuses to institutionalize Santa Claus (in the form of Edmund Gwenn). It doesn’t get much more feel-good than that.

And the template movie for juries? That’s too easy. It is, of course, 12 Angry Men. A brilliant drama by Reginald Rose (and directed by Sidney Lumet in the 1957 film version), this movie may have actually done some real harm to the judicial process. It seems to have planted the idea in people’s heads that every defendant, no matter how overwhelming the evidence against him, is probably innocent. The hero is Henry Fonda, who single-handedly gets the eleven other jurors to change their minds and acquit. While, of course, juries should not be mere rubber stamps for the prosecution, the film basically put forth the notion that jurors aren’t there merely to hear and compare evidence but that they must do their own proactive detective work to solve the case—and that they should keep working over the details of the case until they can find a rationale for acquittal. This is not to say that hordes of guilty defendants are being released every day or that a fair and free-thinking jury isn’t indispensable for keeping overly proactive prosecutors in check. But, still, we do see reverberations of that sense of juror activism, portrayed in Rose’s play and movie, to this day. (Wonder what O.J. Simpson has gotten his golf handicap up to by now…)

Yes, I know it also works the other way—that juries can convict for the wrong reasons. And that also gets portrayed in movies, e.g. in the classic To Kill a Mockingbird. But, fortunately and inevitably, such juries are never portrayed in movies as models to emulate.

-S.L., 7 June 2007


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