Hell or High Water Gets That Most Investigations Are Boring

Because I’m a parent to a small child, I don’t get to the movies as much as I’d like. This means I’m usually months behind on the latest hits. Such is the case with Hell or High Water, last year’s critical darling from director David McKenzie and writer Taylor Sheridan. I missed its theatrical run and all the awards hoopla, but thanks to the magic of premium cable, I was able to watch it 100 times in a row when it premiered on Showtime this week. My verdict? It’s my new favorite movie.

And what’s not to love? Chris Pine’s smoldering steeliness? Ben Foster’s mustache? Enigmatic dialogue dripping with portent? Dammit this movie is great! It’s almost like Sheridan’s films (including Sicario and Wind River, which I’M DYING TO SEE) were created in a lab just to appeal to my sensibilities.

Anyway, on my thirtieth or fortieth rewatch, something stuck out that I thought was worth writing about: the movie nails how slow, methodical, and full of dead-ends the investigative process can be.

The narrative thrust of Hell or High Water is that Toby and Tanner Howard - Pine and Foster, respectively - are trying to save their family ranch from foreclosure the only way they know how: by robbing branches of the very bank that's about to foreclose on them. Toby, an unemployed oil worker, and Tanner, an ex-con, are carrying out early morning heists of branches located in quiet, ramshackle towns like Olney and Archer City because they're less likely to get caught. As their lawyer points out midway through the film, it's a big beautiful middle finger to the banks that have helped level the Texas middle class.

Lawyer

You know, they loaned the least they could. Just enough to keep your mama poor on a guaranteed return. Thought they could swipe her land for $25,000. That's just so arrogant, it makes my teeth hurt. To see you boys pay those bastards back with their own money? Well, if that ain't Texan, I don't know what is. 

Meanwhile, Texas Rangers Marcus Hamilton (Jeff Bridges) and Alberto Parker (Gil Birmingham) are hot on the trail. They spend time interviewing witnesses and gathering evidence as all good cops do, but Marcus realizes the brothers are planning at least one more robbery. So in order to catch them in the act, he picks one branch in Coleman, TX he expects them to rob, and plops himself on a bench right in front of it. Alberto, who Marcus has been mercilessly teasing throughout the film, isn’t happy about it.

Alberto

So, this is your plan? We're just gonna sit here and see if this is the branch they rob next?

Marcus

What would you rather do? You wanna drive 80 miles back to Olney and look for more fingerprints that we ain't gonna find? Or you wanna drive 200 miles back to Lubbock and look at mug shots that don't matter because nobody knows what these sons of bitches look like? Or we can just wait here for them to rob this bank, which is the one thing I'm pretty damn sure they are going to do.

Marcus is right. Sometimes there just aren't any leads to follow. No more interviews to be had. The only thing you can do is wait. At no point in the film (until the climax) does it feel like the Rangers are closing in on the Howard boys. In fact, most of the film it feels like they're hopelessly behind the ball.

After the second robbery, Marcus sits at a table in a diner and chats with some good ol' boys who saw Tanner and Toby rob the bank across the street. There doesn't seem to be any urgency in the way Marcus and Alberto conduct themselves. There's even a little joking back and forth between them and the old-timers. That’s what real investigations look like. It's methodical. One step at a time. Gather the evidence, write it down, move onto the next piece. It's halting and can often feel like wheel-spinning.

I've been an investigator, both as an attorney and as a producer. I've worked on numerous criminal and civil investigations and I can tell you that they are rarely as action-packed and exciting as you see in movies and TV. Most of the time, it’s boring grunt work. In my TV days, I worked on law enforcement shows with both active and retired detectives who all told me the majority of investigations were spent in the office reading documents. A private eye I used to work with told me 90% of his job was sitting in a car waiting for someone to come out of a house. I’ve personally worked on investigations so dull I thought I would literally die of boredom.

Years ago I was interning at the DA’s office in Boston and we were investigating a woman suspected of prescription fraud. Most of my efforts were spent cataloging the hundreds of times she got a prescription and which pharmacies she filled them at. This meant putting all that information into a gigantic Excel spreadsheet. It was painstaking work and it took weeks. But that spreadsheet was key to nailing down her pattern and building a case. We’d never have been able to issue an indictment without it. 

But you know what else? Marcus is also wrong. Turns out, he picked the wrong branch to stake out, a fact he only realizes the next morning when the Howard brothers don’t show up to rob the joint. 

Marcus

I think I got this figured. First two banks, they were Texas Midland banks. All right, there are seven branches altogether. The main branch is in Fort Worth. They're not gonna mess with that. All right? They hit the branch in Olney. They hit the one in Archer City. Then there's the one here.

Alberto

Which they did not hit.

Marcus

Alberto, will you please follow me? Just keep your mouth shut and just listen to what I'm gonna say. There's the one here, then there's the one in Childress. There's the one in Jayton.

Alberto

That one's closed.

Marcus

I know that one's closed! I know that one's closed, Alberto. That's my point. Jayton is closed. That just leaves Post. They're not gonna mess with the bank in Childress, that's a fairly decent-sized town... It means that the only branch that fits the bill is in Post.

Lots of times, you make educated guesses that make sense in the moment but end up being wrong just ‘cuz. In the movie, Marcus figured the brothers would hit the Coleman branch, likely because it was a small one-teller stop, and would draw little attention. And indeed, the scene immediately preceding that showed the brothers arguing over that very issue. But in the harsh light of day, Marcus realized he made the wrong call. Which happens. And then he had to speed across the state to Post, TX to make up for it. 

Investigations aren’t sexy or thrilling or dramatic. There are false starts and bad calls and they’re monotonous and take a long time. And sometimes, they require you to just sit around and wait for something to happen. But if you want to catch your man, sometimes that’s what you gotta do. Commit to the boring stuff no one else wants to do.

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.

Steven Soderbergh Turns Raiders of the Lost Ark Into Silent B&W Fan Film, No One Sues

A long time ago, I was a young aspiring filmmaker and wanted to learn - really learn - how to make good films. So I went to a family friend who had some connections in the entertainment business and asked him what to do. He said "watch a lot of films."

So I did. And I became a colossal movie nerd. And even though the filmmaking part of my life is over, I still watch movies to learn from them. It's nice to know I'm not alone.

The other day, Steven Soderbergh, one of the most interesting mainstream filmmakers working today, posted on his blog a version of Raiders of the Lost Ark that he recut into a silent B+W film as an exercise to learn about film staging from Steven Spielberg, a "filmmaker [who] forgot more about staging by the time he made his first feature than I know to this day." He also replaced the classic John Williams score with the score from The Social Network, by Trent Reznor and Atticus Ross to strip away everything familiar about the film and "aid you in your quest to just study the visual staging aspect." For Soderbergh, staging is important because it "refers to how all the various elements of a given scene or piece are aligned, arranged, and coordinated...I value the ability to stage something well because when it’s done well its pleasures are huge, and most people don’t do it well, which indicates it must not be easy to master."

In other words, "I operate under the theory a movie should work with the sound off, and under that theory, staging becomes paramount."

As a movie nerd, I love that Soderbergh did this. As a lawyer, I'm cool with it too. In his blog post, Soderbergh strikes a defensive, almost sheepish, tone, saying that he's aware he's not allowed to recut Raiders, but did it anyway as a learning exercise. This hedging caught me off guard a bit, since it stands in opposition to the confidence he displays in the rest of the piece. Nevertheless, if I was his attorney, I'd tell him not to worry; as far as I'm concerned, this is a classic fair use scenario. I've spoken about the pitfalls of relying on a fair use defense in the past. My chief concern is that it's not a cut and dried thing. You have to weigh different factors based on the particulars of your case. To complicate matters, fair use is an "affirmative defense" which means you have to wait until you're sued for copyright infringement in order to assert it. It's a tough legal doctrine to use and even tougher to use well.

That doesn't mean you always need to ground the flight before it takes off, however. There are some pretty useful questions you can ask ahead of time to gauge whether using someone else's work without their permission is a risk you want to take. For starters, understand that the issue is less "what" are you doing to the already copyrighted work than "why" and "to what end?" If you're trying to make money from it or impinge on the owner's right to profit from it, that's the kind of thing a court would smack you for. But if you're using the work to inform and educate, or if your use says something critical about the work, those are the classic fair uses scenarios. In this case, that's exactly what Soderbergh is doing. He recut the film in order to say something about a crucial aspect of filmmaking. The fact that he's using Raiders to comment and teach is critical to the analysis, and it helps douse a potential lawsuit before it ever arises.

Don't forget the politics of this either. It's doubtful that Paramount (the film's copyright holder) or Spielberg would want to drag him through a legal proceeding. Soderbergh is a respected and beloved filmmaker, still at the height of his power (The Knick, anyone?). He's a potential collaborator and some of his movies made real money - i.e. the Oceans Trilogy. That's not a gift horse you look in the mouth. And let's be honest, this is precisely the kind of nerding around that Spielberg would probably appreciate.

Raiders of the Lost Ark is my all-time favorite film and Steven Soderbergh relied on fair use to recut it and show us just how great it is. In some alternate universe where I'm still 19-years old, I'm over the moon excited to watch and learn from it. Hell, 34-year old me still is.