When The Movies Get It Right: Probable Cause and David Fincher's Zodiac

[Originally published June 1,  2013. Since today is the 10th Anniversary of the release of this classic crime film, I'm re-upping it. Enjoy!]

When Dirty Harry opened in 1971, it became a box office success and critical darling. It solidified Clint Eastwood's rising star and proved that gritty cop dramas like Bullitt, and The French Connection were legitimate sources of entertainment to a world that grew tired of psychedelic, experimental, 60s era musicals and comedies. The film was very loosely based on the real life (and in 1971, still ongoing) Zodiac murders; likewise, Eastwood's character was based on the police officer assigned to track down the Zodiac, San Francisco Police Inspector David Toschi. Dirty Harry ends with Harry Callahan getting the drop on the film's villain, Scorpio, in a San Francisco junkyard where Eastwood delivers his famous "do you feel lucky" speech. Then he blows Scorpio away with his .357 magnum revolver... a gun so powerful it can carve a hole in solid concrete. Of course the real Zodiac never got to be on the receiving end of such rough justice and Dave Toschi retired in 1983 having never arrested the most famous unknown serial killer in American history.

Dirty Harry has many charms: an iconic antihero, one of the great movie quotes of all time, topical relevancy, and a well-staged, taughtly paced finale. But it was a hit precisely because it allowed the American public to get closure on a national terror that would never resolve. For that same reason, the film left me cold. As you already know, I'm a big supporter of verisimilitude in film. I don't believe that filmmakers need to sacrifice reality on the alter of drama. And while I understand why the filmmakers of Dirty Harry killed off Scorpio, I don't have to tell you that gunning down the bad guy - even if he deserves it - is pretty shoddy police work.

That's why David Fincher's epic crime film Zodiac - a richly detailed chronicle of the Zodiac case - is one of my all-time favorite films. It understands to its very core what good police work is and how good policemen investigate crimes. About halfway through the film, Toschi (played in a career-making turn by Mark Ruffalo), exits a policeman's only screening of Dirty Harry, after years of being stymied in his investigation. Toschi is so torn up about his inability to catch the Zodiac and the movie's unabashed twisting of the truth that he can't watch the whole thing... he just paces and smokes in the lobby. When the movie lets out, the police commissioner approaches him and says, "Dave, that Harry Callahan did a hell of a job closing your case!"

Toschi's response: "Yeah, no need for due process, right?" Zing!

You see, everyone gets due process in this country. Everyone. Regardless of age, race, gender, sexual orientation, national origin, ethnicity, class, or any other category you can devise. Killers, rapists, thieves, and bad men all still get due process because it's written in the Constitution, the highest law of the land. Due process can mean a lot of things, but in the context of a criminal case, it means that you can't be punished without a fair trial and a proper investigation. And to conduct a proper investigation, police need to investigate clues, gather evidence, and then make arrests based on that evidence. That evidence, if properly gathered, catalogued, and analyzed, results in Probable Cause, a foundational element of criminal investigations that allows an officer to make an arrest based on that evidence. You can't make an arrest without Probable Cause and if you do, the suspect will be freed before you can say "kicked off the force."

To drive that point home, Zodiac shows Toschi and his partner Bill Armstrong investigating Arthur Leigh Allen, a very promising candidate for the Zodiac. Allen had been implicated by a former coworker for saying things that later showed up in the Zodiac letters. Allen had the same glove size, boot size, and general appearance as the Zodiac. He owned the same types of guns, had the same military training, lived nearby one of the Zodiac victims, and even owned a Zodiac brand watch with the infamous crosshairs insignia that the Zodiac killer signed his letters with. But despite eliciting high interest from the police, Allen was never arrested. How can that be, you might ask? Because even though there was an abundance of evidence, it was all circumstantial - in other words, the evidence was  highly inconclusive, no matter how suggestive it was of Allen's guilt. In order to justify a probable cause arrest that would stand up to judicial scrutiny (i.e. not get thrown out of court), they needed something much more concrete to tie Allen to the Zodiac killings. That's why the film kept harping on DNA and handwriting samples (the Zodiac hand wrote nearly all of his letters). And when they got both from Allen, they didn't match the Zodiac.  The film takes great pains to show us Toschi and Armstrong gathering evidence, going through the motions of getting a search warrant to Allen's house. They fail because, according to proper 4th Amendment procedures, the evidence to get a search warrant issued had to be based on probable cause, which the issuing judge didn't believe existed. They do finally get the warrant when Allen moves to a different jurisdiction with a judge who is willing to issue the warrant. The scene where they toss Allen's trailer is one of the creepiest scenes in the film.

Toschi and Armstrong believed in Allen's guilt to such a degree that when they're told that Allen's handwriting isn't a match for the Zodiac, they're visibly destroyed. Toschi's career takes a nosedive (at one point, he's suspended from the force after being implicated in the news as the writer of some of the Zodiac letters. He was later exonerated) and Armstrong transfers out of the department. Without the handwriting match, they don't have probable cause, and without probable cause, there's no arrest, and without the arrest, they can't investigate Allen further. The case hits a dead-end. And rightfully so. Allen may have been the killer, but there just wasn't enough evidence to get him in front of a judge.

Do you know what Toschi and Armstrong didn't do? They didn't follow Allen against their Captain's orders. They didn't bug his phone without a warrant. They didn't catch him in the act and gun him down after a dramatic chase.

One of the things that makes Zodiac a great film is that it eschews a lot of the easy choices that screenwriters make when adapting from real events. Often, screenwriters will eliminate, compress, or invent characters and events to suit the narrative structure rather than be truthful to reality. But that didn't happen with Zodiac. The film takes time to explain what probable cause is, why it's important, and why Toschi's and Armstrong's case against Allen dies on the vine without it. Later in the film, when cartoonist Robert Graysmith picks up the investigation on his own, he's instructed by various law enforcement officials, including Toschi, to stay away from the circumstantial evidence and stick with the DNA and handwriting samples because they're concrete and will hold up in court. The rest is just window dressing.

The film treats police procedure with respect, it treats cops and their investigative methods with respect. It doesn't take the easy way out, and it knows that you can still build drama and tension without twisting reality. More than that, it understands why due process is important and why, sometimes, you have to let the bad guy go if you want to honor the Constitution.

Don’t Accuse People of Being Murderers on TV

Ten years ago I was an associate producer on a Court TV show that was investigating wrongful conviction claims. Each episode would center on a man or woman serving life in prison for a murder they say they didn’t commit. During one particular episode, I felt we had really solid circumstantial evidence that the real killer had gotten away. I was so sure this other guy - I’ll call him “Dave” - was the real killer that I had written some voiceover accusing him of it. 

We sent the rough cut with my temp voiceover to our lawyer before passing it to the network for notes. A day later, the lawyer called me and told me to rewrite the voiceover. I didn’t understand. If we had the evidence why couldn’t we say we thought Dave was the guy? He told me that we could talk about the evidence, we could even discuss if other people thought Dave was the real killer, but we couldn’t directly accuse him since we didn’t want him to sue us for libel. I continued to push back and he very patiently told me that I was out of my fucking mind and hell would freeze over before he’d allow the voiceover as I'd written it to get sent to the network.

Of course now I totally get it. 

Last week, CBS aired a mini-series about the 1996 murder of JonBenet Ramsey. What’s shocking is that the investigators openly and brazenly stated their belief that the Ramsey’s son, Burke, 9-years old at the time, was responsible for the murder and that Burke’s parents staged a more elaborate crime scene to protect their son. According to one of the investigators:

“I think Burke was upset about circumstances or Christmas presents, he probably would have been upset about her trying to snag a piece of pineapple. Out of anger, he may have struck her with that flashlight. I think we all agree on that.”

What’s not so shocking is that Ramsey’s attorney, L. Lin Wood, is now threatening to sue CBS for its “lies, misrepresentations, distortions and omissions.” CBS’s response to the threat? “CBS stands by the broadcast and will do so in court.”

Why would CBS allow its on-camera talent to accuse someone of murder? I have a couple of theories.

1. CBS ended the broadcast with a disclaimer that the opinions of the investigators were just opinions on one of a number of possible theories. Maybe they thought the disclaimer was sufficient to protect them.

2. Maybe they felt the case was so well litigated in the public sphere that any accusations against Burke were old hat.

3. Maybe CBS felt that its reputation as a news gathering organization was enough to shield them from liability since the standards for news are different than those for documentaries.

4. Maybe CBS was tired of using hedging language (more on that below) and wanted to come up with something that gave closure to a 20-year old cold case.

5. Maybe they got some bad legal advice.

Whatever the reason, CBS is now staring down the barrel of a defamation lawsuit. In order for the Ramseys to win on a defamation claim, they would have to prove that 1) the statements made against them in the doc were false (i.e. since Burke was never charged, there’s no factual basis for accusing him), that 2) the statements were made with some level of negligence, and 3) the statements caused some actual harm to their character or reputation.

All told, I don’t think this would be hard to prove. But CBS may have an ace up its sleeve, which could account for its confident posturing against Wood. The Ramseys may be private citizens, but they are publicly known for this case; accusations having swirled around them for the last 20 years. CBS is likely to make the argument that they aren’t merely private figures, but instead “limited purpose public figures.” A limited purpose public figure is someone who has become well-known because of a particular issue. It’s not hard to envision a judge or jury buying that argument. Which means if they are indeed limited purpose public figures, the standard for proving defamation is much higher. In that case, they would have to show that CBS allowed false statements about them to be broadcast with actual malice, not negligence, which is typically reserved for private figures only. That is, an actual intent and desire to harm the Ramseys’ reputations further. It’s not an easy bar to meet and if this case goes forward, my money is on CBS A) winning, or B) settling with the Ramseys for a moderate sum.

I’m not sure if I find the initial accusation against Burke or CBS’s stoic attitude more shocking. Is it reckless? Who can say? CBS has been around long enough that I find it hard to believe they'd make a rookie mistake like this. My guess is they know what they’re doing (or at least think they do) and are betting on it working out in their favor. 

But it’s worth pointing out that many lawyers, myself included, prefer hedging language that either couches accusations behind known facts or is so squishy that an accusation can’t be reasonably implied. It’s why all criminal suspects, no matter how guilty they clearly are, are always referred to as “alleged.”  It’s why after a conviction, they are referred to as “convicted.” You’re not accusing anyone of murder by stating that they’re “accused of an alleged crime.” That’s just telling the audience the legal status of a suspect. That’s why saying “X says Y is the killer” is much less likely to get you sued than “I think Y is the killer.” You’re not asserting anything other than the fact that someone else thinks Y is the killer. Yeah it’s a little weasely, but, well, lawyers are sometimes weasely. That’s why I ended up rewriting all that voiceover ten years ago.

I can tell you that I certainly wouldn’t have counseled the producers to end with such a bold proclamation of assumed guilt. I can also tell you that if you produced a true-crime doc and came to me for legal advice, you would have a hell of a time convincing me to allow you to let the show go to air. But CBS has a lot of lawyers. Maybe they know something I don’t. Or maybe they made a stupid mistake. Time will tell. Regardless of how this works out for CBS, my advice to you is pretty simple: even if you have the evidence to prove it, don’t accuse people of being murderers on TV. Leave that to the courts.

Illegal Graffiti Gets Copyright Protection Because It Is Still Art

Everyday on my walk home from work, I see this or something like it tagged to the side of my apartment building:

Graffiti intrigues me because of its contentious nature in "civilized" society.  The artist in me is excited by the skill and craftsmanship involved in making something like this (although I can barely read it; it might as well be written in Klingon).  But the law-abiding citizen in me tempers that excitement with the knowledge that graffiti, unlike most other forms of art, is predicated on using someone else's property as a canvas... often without their consent.   And because graffiti is usually illegal, it raises a decorum problem that often confuses people into thinking that the normal rights of copyright ownership don't apply - i.e. "you can't copyright protect vandalism because it is illegal."  But that's bunk.

I've known a fair few graffiti artists over my lifetime and I can safely say that they're not a populace that's overly concerned with asserting ownership rights over their work.   Primarily because asserting ownership would be an admission of guilt resulting in some form of criminal penalty such as a fine or even jail time (there's a reason Banksy can't revealed his identity, after all).  The other part of it is the political motivation that often accompanies graffiti: that property ownership is a social construct anathema to the public good.  Why else vandalize someone else's building with such artistry and flair when a sledgehammer or molotov cocktail can drive home the same point in a fraction of the time?  [Author's note: of course, there's always the possibility that the graffiti was commissioned by the property owner, in which case, the tagger is not burdened with criminal concerns and will want to assert and maintain copyright ownership. Here's an interesting NY Times article from 2007 about graffiti artists who were upset when their commissioned works were mistaken for vandalism and photos of the graffiti ended up being published in a book without their permission.  If you're a graffiti artist who is hired by a paying party, you should really check out my last post on work-for-hire.]

But make no mistake about it, graffiti artists, even the covert ones tagging buildings without permission, do have ownership rights over their work.  Graffiti is absolutely 100% protected under U.S. Copyright Law and I'll have words with anyone who says otherwise.  Our copyright law lists the following types of works that are granted copyright protection:

1. literary works;
2. musical works, including any accompanying words;
3. dramatic works, including any accompanying music;
4. pantomimes and choreographic works;
5. pictorial, graphic, and sculptural works;
6. motion pictures and other audiovisual works;
7. sound recordings; and
8. architectural works

And while graffiti (along with many other forms of art) is never explicitly mentioned anywhere in our copyright laws, it's clear that the list was purposefully left open-ended to grant protections to art forms that hadn't yet been invented and hadn't been contemplated by the drafters of the law.  I should also point out that nowhere in our copyright law does it say that a type of art forgoes protection simply because it could be illegal.  That's what this article by Celia Lerman argues and I agree without reservation.   Copyright law places no judgment on art, the motivation behind the art, or the form in which the art takes.  It is, for all intents and purposes, judgment neutral.

The fact that an artist can own the copyright to a piece of illegally made art that emblazons the side of someone else's property creates an interesting dynamic when a third party takes a photograph of that graffiti (like the one I took above) and attempts to profit off of it.  That's infringement of copyright and doing so without the artist's permission could actually result in the artist taking you to court and winning monetary damages (if the artist isn't concerned about the criminal ramifications, obviously).  Luckily, I'm in the clear because I can assert Fair Use over my photo since it was taken for non-commercial, educational purposes.  But if you're like the photographer in that NY Times article I linked to above, watch out!

So ownership over the copyright to graffiti is vested in the artist regardless of its legality.  But that's not the end of the story, because that art, while owned by the artist, is completely reliant on someone else's private property.  And property is kind of a big deal in this country.  The right to property is mentioned explicitly in the Fifth and Fourteenth Amendments, and the Third Amendment is built entirely around it.  Let's not even go into the entire legal disciplines that arose around property law and made my life in law school an unwinnable shit-show.  Property is important, which means that the needs and wishes of the property owner will almost always supersede the rights of the graffiti artist.  So when my landlord decides to blast off the graffiti adorning my building with a power washer, he can do that without fear of legal repercussions from the artist (although why bother?  The taggers are just going to show up again).

The truth is, despite the political hand wringing over it, graffiti is just like any other type of art form and gets the same protections.  What makes it difficult at times is its relationship to the surrounding environment.  And unfortunately, as long as graffiti remains illegal, the oath I took to uphold the law will mean I have to walk a fine line between the rights of the artist and the rights of the canvas owner.  It will be, for the foreseeable future, an issue that tugs on my Gemini heartstrings.

When The Movies Get It Right: Good Cops, Bad Cops, and American Gangsters

In the pantheon of 70's style American crime films, Ridley Scott's 2007 American Gangster is a solid entry, but it's not great, and certainly no all-timer. There's a kind of undercooked quality to it that prevents it from rising to the level of French Connection, an inspiration American Gangster clearly wears on it's sleeve. That's partly because the film doesn't know if it wants to glorify or criticize the gangster lifestyle, and partly because Sir Ridley, while a talented filmmaker, simply doesn't understand American social mores, so the racial aspects of the story (out of which a significant amount of the drama flows) feel half-thought out. It also doesn't help that Scott wants every outdoor scene to take place in the middle of a snow flurry, even though the film was clearly shot sometime in August (seriously man, have the courtesy to digitally erase the green tree leaves if you're trying to convince me that it's the middle of December).

What keeps the film from cracking under the weight of its own dopey seriousness is the raw thundering power of Denzel Washington's mobster Frank Lucas, the understated badassitude of Russell Crowe's incorruptible cop Richie Roberts, and Josh Brolin's mustache. Also there's a conversation that occurs between Frank and Richie near the end of the film that just floors me every time I watch it. Frank Lucas has been finally captured and it turns out that he's become the biggest heroin dealer in New York, by far outclassing the Italian Mafioso's who want Frank's head on a platter. Richie, who has spent the past two years trying to nail Frank, finally has his chance to interrogate him.

Frank

What do you want me to do? Snitch, huh? I know you don't want me to give up no cops. What do you want? You want gangsters? Pick one. Jew gangsters? Mick gangsters? Guineas? They've been bleeding Harlem dry since they got off the boat, Richie. I don't give a fuck about no crime figures. You can have them.

Richie

I'll take them, too.

Frank

You'll take them, too? No, you didn't. You're talking about police. You want police? You want your own kind?

Richie

They're not my kind. They're in business with you, Frank, they ain't my kind. They ain't my kind like the Italians are not yours.

Take that Frank! The films take great pains to show us that Richie has a reputation as an untouchable, especially in comparison to Brolin's Detective Trupo who is basically selling the French Connection dope on the side to afford his big house and sporty car. To illustrate: early in the film, Richie and his partner discover almost a million dollars in cash stuffed in the trunk of a car. Instead of skimming a little off the top, like most cops in the early 70's would have, Richie turns it all in. Every cent. And that kind of incorruptibility makes him a target. His partner leaves him and no one will work with him.  Eventually Richie is hired to head up a federal narco task force made up of other good cops and together they go after Frank.  As a result of the above-conversation between Richie and Frank, 3/4 of the entire NYPD narcotics division is arrested for corruption.

And you know how they do it?  Through good cop work.  Investigations based on probable cause.  Arrests based on valid warrants.  Interrogations that don't violate the suspects' Miranda rights.   I've seen the film about a dozen times and I haven't seen a single 4th, 5th, or 6th Amendment right being violated.

Now for those of you who don't know me very well, I am - by all accounts - a big square.  Like any rational person, I don't like bad cops. But I also don't support films where bad cops are celebrated.  The only cops and robbers movie that dares get close yet still earns my respect is L.A. Confidential.  The film is an absolute classic in a way that American Gangster will never be, but in L.A. Confidential, the good guy Ed Exley, ends up shooting the bad guy in the back AFTER THE BAD GUY SURRENDERED!!! The only reason I can even remotely tolerate that is because the bad guy turned out to be L.A. Police Captain Dudley Smith, who was also secretly running the mob and indiscriminately killing civilians and police detectives over 25 pounds of heroin.  Exley probably didn't need to shoot Smith in the back, but I can understand that letting Smith go would be a non-starter (Smith's cache with the Police Chief and District Attorney would almost certainly result in him getting his charges dismissed and leaving him free to exact revenge on Exley).  Now to be fair, while I can justify killing Smith, I feel icky about the mental gymnastics required of me to make that moral choice... thank God it's only a movie!

So while American Gangster isn't a great film and sometimes feels like two halves of two different stories, I can get on board with it because it has cojones to be square, to not celebrate shooting the bad guy in the back, to celebrate good cop work, like another 2007 crime drama I wrote about a few months ago, David Fincher's Zodiac.   The fact that Richie was able to take down all those bad cops by doing good cop work in real life is icing on the cake, and gives me hope for our men and women walking the thin blue line.

When The Movies Get It Right: A Courtroom Scene With True Grit

If you're writing a screenplay that features a pivotal courtroom scene and you want to figure out how to write it, you could buy "Basic Trial Advocacy," a trial practice manual by Peter Murray.  I used this book during my second year of law school and it's really fantastic.  Well explained and easy to understand.  Or you can just watch True Grit (The Coen Brothers 2010 remake).  It has one of the most accurate portrayals of a legal proceeding I have ever seen in a Hollywood production.

About 15 minutes into the film, we meet protagonist, Marshal Reuben J. "Rooster" Cogburn (played by Jeff Bridges as a violent, cocksure, slurring drunkard) giving testimony at the trial of Odus Wharton.  The scene is played for humor and as an introduction to Cogburn's predilection for killing his suspects.  The dialogue is classic Coen Brothers: pithy, wry, and rhythmic.  It's also delivered by magnificent actors like Bridges who have the ear to turn that dialogue from a garbled mess into something almost musical.

But beyond the masterful writing and acting, the scene plays because the Coens clearly did research on what a trial actually feels like.  I don't know whether they picked up a trial advocacy book like the one I mentioned above, whether they sat in on real trials, or hired a lawyer to write that scene, but whatever they did worked.  So often I get the impression that Hollywood writers don't do the research, or would rather indulge their dramatic proclivities instead of going for something accurate.  If you've been reading this blog, then you know I am a firm believer that drama and realism need not be mutually exclusive.  

Let's look at what makes this scene authentic.  [This is going to be a bit long-winded, so bear with me.  Take a look at my Dark Knight Rises post if you're looking for something short.  I praised that film as well for its legal veracity.]  As the prosecutor, Mr. Barlow, conducts his direct-examination on Cogburn, the defense attorney Mr. Goudy, played with a great deal of huff by actor Joe Stevens, objects to the questions (I've highlighted the objections in red).

Mr. Barlow

What did you do then?

Cogburn

Me and Marshal Potter went out to the smokehouse and that rock had been moved and that jar was gone.

Mr. Goudy

Objection. Speculative.

Judge

Sustained.

Mr. Barlow

You found a flat gray rock at the corner of the smokehouse with a hollowed-out space under it?

Mr. Goudy

If the prosecutor is going to give evidence I suggest that he be sworn.

Mr. Barlow

Marshal Cogburn, what did you find, if anything, at the corner of the smokehouse?

Then later on:

Mr. Barlow

Did you find the jar with the hundred and twenty dollars in it?

Mr. Goudy

Leading.

Judge

Sustained.

Mr. Barlow

What happened then?

Cogburn

I found the jar with a hundred and twenty dollars in it.

Mr. Barlow

And what happened to Marshal Potter?

Cogburn

Died. Leaves a wife and six babies.

Mr. Goudy

Objection.

Judge

Strike the comment.

It's difficult to tell just from reading the passage, but the interactions between Mr. Goudy and Mr. Barlow weren't underscored by tension, animosity, or high drama.  There  was no attempt to cast Mr. Barlow as the good guy and Mr. Goudy as the villain.  The two men continued their questioning as if these things just happen.  And you know what?  They do.  All the time.  I've seen my fair share of trials; good lawyers often ask speculative or leading questions, sometimes by accident and sometimes on purpose.  The other side objects because they're supposed to.  In real life, there's no seething anger or hatred between them.  Yes, both sides fight hard (sometimes viciously) for their clients, but there's generally a sense of deference between attorneys.  That deference played out in this scene.  What no one tells you is that real trials are very structured.  Both sides generally know what the other side is going to ask, so they plan accordingly, which is why those dramatic "gotcha" moments happen so rarely.  The Coens understood that in a way that few people who haven't sat through a real trial would.

Here's another reason why this scene works: the Coens got the language and legal theory right.  Look at this interaction once Mr. Goudy began to cross-examine Cogburn.

Mr. Goudy

In your four years as U.S. marshal, Mr. Cogburn, how many men have you shot?

Mr. Barlow

Objection.

Mr. Goudy

There is more to this shooting than meets the eye, Judge Parker. I will establish the bias of this witness.

Judge

Objection is overruled.

Mr. Goudy

How many, Mr. Cogburn?

Cogburn

I never shot nobody I didn't have to.

Mr. Goudy

That was not the question. How many?

Cogburn

. . . Shot or killed?

Mr. Goudy

Let us restrict it to "killed" so that we may have a manageable figure.

Cogburn

Around twelve or fifteen. Stopping men in flight, defending myself, et cetera.

Mr. Goudy

Around twelve or fifteen. So many that you cannot keep a precise count. Remember, you are under oath. I have examined the records and can supply the accurate figure.

Cogburn

I believe them two Whartons make twenty-three.

Mr. Goudy

Twenty-three dead men in four years.

Cogburn

It is a dangerous business.

Mr. Goudy

How many members of this one family, the Wharton family, have you killed?

Cogburn

Immediate, or--

Mr. Barlow

Your honor, perhaps counsel should be advised that the marshal is not the defendant in this action.

Mr. Goudy

The history is relevant your honor. Goes to Cogburn's methods and animosities.

Notice the different way each attorney questioned Cogburn.  In the first excerpts, Mr. Barlow questioned Cogburn, his own witness.  Since Cogburn was the prosecutor's witness, Mr. Barlow was limited to asking "then what happened" style open-ended questions.  This gives the witness control over the story and prevents the lawyer from feeding answers to a favorable witness.  That's why every time Mr. Barlow tried to focus Cogburn's testimony by asking closed questions, he got smacked by Mr. Goudy and the judge.  So far so good.

Then a shift occurred.  When Mr. Barlow finished his line of questioning, the defense attorney, Mr. Goudy, asked Cogburn a series of leading, sometimes attacking questions on cross-examination (a leading question is one that has the answer already in it). This is because Cogburn was an adverse witness to Mr. Goudy's client and Mr. Goudy was trying to discredit Cogburn by poking holes in his story.  Attorney's are allowed to "lead" adverse witnesses and even make them look like liars.  During his questioning, Mr. Goudy got quite aggressive with Cogburn, but it wasn't played for high drama.  Rather it was treated as an attorney trying to get answers out of an uncooperative witness.  The Coens also got this dynamic right.

Let's talk about the legal theory. Mr. Goudy pushed Cogburn to admit how many men he's killed.  His line of questioning alerted Mr. Barlow who stood up to ask the judge to stop it. Why?  Because Mr. Goudy was about to do a big no-no in trial practice: he was about to attack Cogburn's character.  Under Rule of Evidence 404 in most states, you cannot admit evidence of a person's character for the sole purpose of showing that he is the kind of person who normally does this kind of thing.  From the passage, you can see that Mr. Goudy's questions were designed to show that Cogburn is a man of poor character because he shoots first - therefore he is an unreliable witness.  But the judge allowed it because under Rule 404, you CAN admit evidence of a person's character to show motive, intent, bias, animosity, modus operandi, etc.  Here, Mr. Goudy wished to show that Cogburn had a bias against the Wharton family as is evidenced by his history of gunning down the Whartons. And as Mr. Goudy continued his questioning, we discovered that Cogburn had indeed shot two members of the Wharton before the current altercation, bringing the total to four dead Whartons killed by one man.  The script followed the rules of evidence to a T.

The scene lasted a total of about 7-8 minutes, but in it, we got a sense of the deference between competing sides, the reality of the atmosphere in a real courtroom (and the lack of heightened drama), the correct use of evidentiary rules, and proper trial practice technique. I have to admit bias here.  I am an unabashed admirer of the Coen Brothers and especially their 2010 remake of the John Wayne classic.  I even love the Coen films that I hate.  No one makes movies like these guys.  But bias notwithstanding, I think that you can learn nearly everything you'd need to know about proper trial advocacy from this scene.

Also, yes, I watched the Blu-ray three times so I could transcribe this scene for you.

Filmmaker-2-Filmmaker: Tip 1 – Wiretapping

This is the first in what I hope will be an ongoing resource for up and coming filmmakers.  I want to warn you guys that it’s going to be a bit dry… I’ve fallen asleep twice while writing it.  So if you want to read something fun, take another pass at my Avengers analysis.  To kick off the inaugural Filmmaker-2-Filmmaker, I’m going to talk about something that doesn’t seem like a big deal, but it’s an issue that shows up often in documentaries and reality TV: recording phone calls, or, in legal speech, wiretapping.

Normally when people think of wiretapping, they think of this:

A couple of federal agents sitting in an unmarked van decked out with monitors and microphones listening to phone calls made by gangsters.  But in reality, you see it all the time when your on-air talent makes a phone call while being filmed.  In my producing days, we recorded phone calls for a variety of reasons: maybe a phone call made more logical sense to the narrative we were telling; maybe the person wasn’t willing to be put on film; maybe the person lived in another state and we didn’t have the budget to fly cast and crew to that location for an on-camera meeting.  I once produced a show where we filmed a phone call instead of trying to get a live interview because the subject had a history of violent criminal activity and was an accomplished bow hunter.  It would have been great to get him on screen, but it just wasn’t worth the risk to our safety.

So how do you protect yourself if you want to make an on-air phone call because you either won’t or can’t get your subject live?  The very first thing you want to do is make a good faith attempt to get a personal depiction release from anyone whose voice you want to use – yes, even if you’re only going to use their voice and even if you don’t identify them by name. A depiction release should be a major part of any producer’s arsenal and is the best and easiest way to protect yourself legally. [If you need help drafting one, drop me a line. I’m going to tackle the topic of release forms in a future post.]

But maybe the person won’t sign a release form, or you make an executive determination that trying to get a release would be futile.  Then what do you do?

You determine if you are filming in a one-party or two-party consent state.  Here’s why: if you are in a one-party consent state, as long as one of the phone call participants knows you're filming the call and allows you to film it, you will generally not be subject to criminal or civil penalties, even if the other side does not consent.  Conversely, if you are in a two-party consent state, both phone call participants must allow you to film the call; without consent of both sides to the conversation, you could be liable for civil and/or criminal penalties depending on the state.  Let’s take a quick look at some sample penalties for violating the consent laws:

• Massachusetts is a two-party consent state.  A violation of the consent law carries a maximum criminal penalty of five years in prison and a fine of up to $10,000.  Mass. Gen. Laws ch. 272, § 99(C).  Massachusetts also permits civil suits against persons who violate the consent laws.  Courts may award actual damages, punitive damages, attorneys fees and litigation costs.  Mass. Gen. Laws ch. 272, § 99(Q).
• California is also a two-party consent state.  A first violation of the consent law is punishable by a fine of $2,500 or less and/or imprisonment of less than 1 year.  Subsequent offenses carry a fine of up to $10,000 and a 1-year imprisonment.  Cal. Penal Code §§ 631, 632.  Like Massachusetts, California permits civil suits.  Anyone injured by a violation of the consent laws can recover damages of $5,000 or three times the actual damages, whichever is greater. Cal. Penal Code § 637.2. The court may also impose an injunction preventing the use of that wiretapped phone call. Cal. Penal Code § 637.2(b).
• In comparison, New York is a one-party consent state and does not permit civil suits against persons who violate the consent laws.

To determine what type of state you’re in, you should check out the Reporters Committee For Freedom of the Press.  This website is a great resource for video journalists and documentarians.  It has a handy chart outlining which states are one-party or two-party, which states have criminal and civil penalties, and will give you detailed breakdowns of how the law works in each of the 50 states.  I used this site all the time during pre-production and principal photography and I like to think that having this handy resource kept my colleagues and me out of trouble.  It’s such an invaluable tool that I’ve gone ahead and placed it on my Resources For Filmmakers page.

The analysis doesn’t end there, however.  You may be in a one-party consent state, but if you have to make a phone call across state lines, it falls into federal jurisdiction.  In that case, you should assume that a two-party consent law applies, even if you’re making a call to another one-party state.

Unfortunately, if you find yourself in a two-party consent situation and one of the parties won’t consent, there really aren’t many workarounds if you need that phone call for narrative purposes.  In the few instances where that happened to me, I simply made the call off-screen and then staged it later with the information gathered from that call (hey, it’s reality TV!).  I want to give a word of caution here: if you’re in a two-party state and you don’t get consent from the party being called, you cannot simply film the call and drop out the sound later.  The criminal and civil penalties are not generally based on whether the other side’s voice is heard, they’re based on whether you knew or should have known about the consent laws and knowingly violated them anyway.

At the end of the day, producers aren’t lawyers.  Even if you have the best intentions and good information, you can still screw up (i.e. recording an interstate phone call without both parties’ consent).  If that happens, don’t try to lawyer yourself out of the situation.  Call me or an attorney you trust and inform them what happened.  There are always ways to protect yourself, even if you step in it.

The Legal Implausibility of Crimson Tide, or How To Find Drama Within The Constraints of Reality

(Author's note: when I first heard about Tony Scott's death last night, it got me thinking very critically about his body of work.  I've often been a fan and I think that Crimson Tide, Enemy of the State, and Spy Game emerge as a near perfect trifecta of paranoid-intellectual popcorn cinema.  They're action films with a brain.  As I got to thinking about his films and the various legal issues surrounding them, there was one that I couldn't shake, and that is the subject of this post.   Whatever Scott's demons, he was an inventive and visually kinetic director who knew how to direct actors, create tension, and weave propulsive narratives.  He may never be considered the auteur that his brother Ridley was, but his is a voice that will sorely be missed).

About two years ago, in response to criticism that his script for “The Social Network” deviated from the reality of Facebook’s founding, Aaron Sorkin said, “I don't want my fidelity to be to the truth; I want it to be to storytelling.”  It was right for him to say this because the job of Hollywood is to tell stories.  Sorkin and director David Fincher were not, after all, making a documentary about Mark Zuckerberg.  They were telling a story, the driving force of which is drama.  I think that most people generally accept this.  They know that they’re not watching something that is literally true; they understand that when they see the words “based on a true story”, the real story is an inspirational launch-point for what they are about to see and not a word-for-word retelling.  I am one of those people.

But sometimes the demands of creating drama, conflict, and tension distort reality to such a degree that I must fundamentally reject what I am seeing on screen.  This happened to me with the 1995 submarine action film Crimson Tide.

Before I get started with the legal analysis, I want to say first that Crimson Tide is, above all else, a Masters-level course on pacing, tension, and drama.  Any filmmaker who desires to make tightly scripted thrillers should add Crimson Tide to his or her diet.  Furthermore, despite the legal impossibility of the film’s ending, it is still a fantastic yarn filled with excellent performances by Gene Hackman (my all-time favorite actor) and Denzel Washington.  The score, by Hans Zimmer, is what we in the film industry refer to as “awesome.”  Tony Scott's direction is as clear as it's ever been.  Even after what I am about to say, I will still watch Crimson Tide and enjoy the first 111 minutes of its 116-minute run time.

The ending is what we in the legal field refer to as “total garbage.”  The film, as you may remember revolves around a mutiny on board the U.S.S. Alabama, a nuclear attack sub.  The mutiny is led by Denzel’s dashing and popular Lt. Commander Ron Hunter against Hackman’s gruff but respected Captain Frank Ramsey.  During a skirmish with a Russian sub, communications between the Alabama and the National Command Authority are cut off.  The Captain believes that the Alabama has been ordered to fire its nuclear payload, while Commander Hunter wants to wait and reestablish communications to find out if the Alabama has been ordered to launch.  Time, as you might expect, is not on their side.  A Russian splinter group has taken control of that country’s nuclear stockpile and has threatened to launch its own missiles against Washington D.C. within the hour. (I love this movie so much that I just typed the entire plot of the film from memory, not once referring to Wikipedia).

The problem with the movie occurs in the last ten minutes of the film.  The standoff between Hunter and Ramsey ends when a cadre of sailors loyal to Hunter reestablish communications with the National Command Authority and discover that the Alabama has been ordered to stand down.  The Russian splinter group has been defeated by the Russian army and the nuclear stockpile has fallen back into the hands of U.S. allies.  Despite tearing the ship’s crew apart, Hunter has just saved the world from nuclear annihilation.  A few weeks later, Ramsey and Hunter stand before a dais of admirals who chew them out over the mutiny.  Instead of being court-martialed, however, Hunter learns that Captain Ramsey recommended that Hunter be promoted and given his next command at the next possible convenience.  The two men shake hands and literally walk off into the sunset! Pardon my legal jargon, but WHAT THE HELL?!!

Hunter had just led a mutiny aboard a U.S. Navy vessel in a time of war.  I refused to believe that he would have gotten off without so much as a slap on the wrist.  So I looked into it and here’s what I found:

Article 94 of the Uniform Code of Military Justice (UCMJ) states that “any person… who…with intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny….” For those who are interested, the provable elements for mutiny can be found here.  I won’t spend this time analyzing whether Hunter’s actions constituted mutiny since pretty much every major character within the film admitted that it was in fact mutiny; For the sake of brevity, I’ll take the film at its word.

What I’m much more interested in here is the punishment.  Article 94 says that, “[a] person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished by death or such other punishment as a court-martial may direct.”  The text of the UCMJ isn’t helpful in determining what factors a court-martial would use in sentencing a mutineer, so I dug around further and discovered that there has never been a documented case of mutiny on a United States naval vessel.  Thus, there is no precedent in the modern era for determining how a mutineer on a U.S. naval vessel during a time of war would be charged and sentenced under Article 94.  Since I'm not a military man, I wanted to get a military perspective on the situation, so I posed this question to my friend and colleague Matt Brecher who had worked in the U.S. Army Judge Advocate General Corps. This is what he said:

“The maximum punishment is death, however [the mutiny] would more likely be punished by a dishonorable discharge and a lengthy prison sentence in a military prison, loss of all rank, and forfeiture of all pay.  Aggravating factors leaning toward life imprisonment or death would include mutiny during a time of war.  However, it may be a defense to such a charge if an order or leadership is unlawful, or if the person committing such act is acting pursuant to a regulation or order authorizing their act.”

Matt goes on to say that, “[g]enerally, if he were actually charged with mutiny, I would expect a General Court Martial (as opposed to a special or summary court martial), meaning that the court is empowered to issue any type of punishment authorized under the UCMJ, including death, life in prison, and dishonorable discharge.  The factors to consider would be the legality of the original commander's actions as commander, and whether there were legal grounds for the "mutinous activity."  This might include the commander becoming unfit for command, but would likely require a naval regulation authorizing his relief."

Surprisingly, Matt does not think that Hunter would be court-martialed for mutiny.  "I would not expect a mutiny charge, but rather a charge of disobeying a lawful order, disrespecting a commissioned officer, and other lesser included offenses.  They would likely each receive a letter of reprimand in their permanent fiche at the very least.”

While reasonable minds can disagree on the severity of the punishment and the type of administrative hearing Hunter would receive, he would certainly have received some sort of punishment.  Just because Ramsey liked the guy and recommended him for promotion wouldn’t absolve him of guilt.

So Scott flubbed the ending in an attempt to give the audience a happy ending.  This makes total sense… when you’ve just put the audience through a non-stop tension-filled thrill ride where nuclear Armageddon was imminent, you understand that the audience needs a catharsis.  But being a film-buff and also a shameless revisionist, I believe such a catharsis could have been reached while still maintaining some semblance of reality.

Obviously, we can’t have Hunter given the maximum punishment (death) because Denzel is our protagonist and we like him.  Furthermore, the final scene demonstrates that Scott was keen on showing that Ramsey developed a profound respect for Hunter because Hunter bucked authority to do what he thought was right – he was his own man. My preferred ending to Crimson Tide ends thusly:

Ramsey meets Hunter for coffee two years after the incident.  Hunter has just been released from a military prison.  It is revealed in their conversation that Ramsey visited Hunter often in prison, bringing him books on military history (including a copy of Von Kriege by Carl Von Clausewitz - callback to an earlier scene!) and had grown to respect Hunter for standing up for what he believes in.  It is also revealed that Hunter was given a significantly reduced sentence (including a dishonorable discharge) because of his stellar record, because his actions averted nuclear catastrophe, and because Ramsey testified at the court-martial defending Hunter’s actions.

The benefit of such a scene would bring full circle a theme that the film played with tangentially in the early going: how a man’s will intersects with the rigid structure of the military.  An ending like this could show that Hunter was too willful to be a military man (something the film toyed with in Denzel’s early scenes with Hackman) and that being his own man in a world of rules and regulations would cost him dearly.  It would also have the desired effect, showing the growing friendship between two former enemies.  Lastly, an ending like this would have kept the happy ending the audience craved, been truer to real life, and helped an already excellent action film become a Great Film.  Full stop.