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.

In Defense of The Dent Act

Summer 2012 has given us two of the biggest films in history, both from a cultural and box-office standpoint.  With the summer movie season waning, I thought this was a good opportunity to  look back and discuss the relationship these films have with the law.  Today, I begin with The Dark Knight Rises.

Warning: Spoilers! If you haven’t seen The Dark Knight Rises and don’t want to know what happens, read no further.

The Dark Knight Rises raised a number of interesting legal issues that could each be the subject of their own posts: the way the film dealt with the Bruce Wayne bankruptcy, the federal response to the siege of Gotham, to name a few.  But one stands taller than the others and that's the subject of this post.

In the immediate aftermath of the movie’s release, there was some discord amongst critics about one issue in particular… something they felt was so wrong-headed that they had to call the director on it – they hated the Dent Act. More specifically, there was some hand-wringing over the Act’s constitutionality.

Cliff notes version: it is utterly constitutional.

Let’s step back for a minute.  What exactly is the Dent Act? At the beginning of the film, we learn that shortly after the death of Gotham’s District Attorney Harvey Dent, sweeping anti-crime legislation was passed that gave the city’s police and prosecutors “teeth” to fight organized crime in the city.  We know that eight years after Dent’s demise, the Dent Act did it’s job, almost completely decimating crime in the city, and leaving a gaping hole for Bane and his League of Shadows thugs to storm in and take the city.

So what tools does the Dent Act grant law enforcement Gotham City to combat organized crime?  Did the Act authorize a mass hiring of police officers, in effect turning Gotham into a police state?  Did it place stricter sentences on those convicted of organized crime activities?  Did it finally root out the bad guys in Gotham’s notoriously corrupt police force?  Unfortunately, the movie doesn’t tell us much about the mechanics of the law and only pays it lip service before delving into the “Batman coming out of retirement” storyline. The only substantive information we have on the Dent Act is told to the audience by Joseph Gordon-Levitt’s character; apparently the Act has kept hundreds of mobsters behind bars by denying them parole.

I readily admit ignorance here. Like others when I first heard this, I threw my hands up in disgust.  “How unconstitutional is that?!” I nearly screamed aloud to my wife in the theater.  As it turns out, it’s pretty damn constitutional.

Let’s get some basic facts out of the way: the discretion to grant or deny parole typically resides in a state’s parole board.  They have the right to determine if an offender should be released before his full sentence has been served and they may grant or deny parole based on a variety of factors.  What concerned me was whether a piece of legislation could make that determination for them.

As a rule, states have the power to regulate their own law enforcement and legislate their own criminal codes.  With some Eighth Amendment exceptions (such as sentencing juveniles to life in prison with no possibility of parole), the state is allowed to make a blanket determination regarding who should and should not be released from incarceration before the full sentence has been served.

In reality, many states have done just that. The Massachusetts legislature recently considered an overhaul of the state’s criminal sentencing laws that, among other things, would abolish parole for repeat violent offenders. Massachusetts already bans parole for anyone convicted of first-degree murder. Pennsylvania considered a similar overhaul of their criminal sentencing statutes three years ago.  Sixteen states have taken it much farther by abolishing the parole system altogether.

Therefore denial of parole under the Dent Act for prisoners convicted of violent crimes such as murder, assault, or drug dealing (in many states, crimes of possession with intent to distribute are considered crimes of violence) is constitutional because there is a framework for just that kind of legislation in other states.  On the other hand, I think the Dent Act will have a harder time demonstrating its constitutionality when is denies parole to those convicted of non-violent crimes such as racketeering, gambling, prostitution, and money laundering.

Movies so often get it wrong when it comes to portraying the law so it’s nice to find a case where the movie gets it right (even though I’m convinced no one in the screenwriting process actually did the necessary legal research).  While we don’t know anything else about the substance of the Dent Act, the parts we do know about will probably hold up under scrutiny.  And frankly, even without knowing the Act’s other substantive provisions, I think that denying parole to 1000 dangerous and violent criminals would be enough to give Gotham’s Police Department a break in getting its crime problem under control.  Putting the Batman out of the job was probably just icing on the cake.