ollywood Lawyers: Defense Attorneys, Prosecutors and Judges Bend the Law

Introduction

Both movies and prime-time TV have long been interested in courtroom dramas as a source of popular entertainment. This week we will look at how the law has been depicted in these portrayals.

Lawyers and Cops on TV

Steven Stark traced the TV history of lawyers in his essay, "Perry Mason Meets Sonny Crockett." He discussed both TV cop and lawyer shows, claiming to have uncovered a cyclical pattern to the way both groups were portrayed. His theory was that cop shows were popular during conservative periods in our society, while programs that feature lawyers (particularly defense lawyers) were in vogue during more liberal or anti-establishment periods. Good defense attorneys make not only prosecutors, but the police also, look bad. However, for the most part television has been on the side of the police rather than those defending criminals, making the former into blue-collar and, later, middle-class heroes. Well qualified prosecutors, a rarity on TV until the 1990s, expose defense attorneys as win-at-all-cost deceivers and mercenaries.

In the 1950's, the heroes of prime time crime shows were the police: Jack Webb, Broderick Crawford, and Robert Stack played an LA detective, highway patrolman, and G-man respectively. This was a period of cultural conservatism (the Eisenhower Years).

Perry Mason and TV Defense Attorneys

In 1957, Perry Mason made its TV debut. Based on the novels of ex-lawyer Erle Stanley Gardner, it ran for more than 10 years, and can continue to be seen today in syndication. In the 1980s, the show made a reappearance in a series of made for TV movies.  The show may now serve a nostalgia function for old-time liberals. 

Every episode of Perry Mason was virtually the same: a crime is committed, it is investigated by L.A.P.D., and prosecutor Hamilton Burger decides to charge a suspect with the offense, who then becomes Mason's client. Mason and his detective, Paul Drake, investigate to try to defend the client. In the courtroom the defendant is heavily implicated by the prosecution's witnesses, but when Perry Mason cross-examines them, he not only casts doubt on their testimony, but is able to show that another person is indeed the culprit. The real criminal typically confesses right there in the courtroom. In reality, Mason's character was much more detective than lawyer.

The fact that L.A.P.D. and the prosecutor's office always tried to convict the wrong suspect week after week, could only lead to the conclusion that both agencies of government were totally inept. The police were too stupid to ever find the real criminals, and always tried to lay the blame on easy targets. The American criminal justice system took it on the chin every week.

In 1961, The Defenders premiered starring distinguished actor E.G. Marshall and Robert Reed (later father of The Brady Brunch). They not only always earned acquittals for their clients, but took on cases involving significant social issues as well (much like LA Law would in the 1980s). The death penalty, abortion, and blacklisting were only some of the topics which appeared. The Defenders followed immediately after Perry Mason on Saturday nights on CBS. The lawyers on these programs were pictured so favorably that law school admissions increased tremendously during the 1960s.

Police Make a Come Back

At the same time, during the early 1960s, police shows became extremely unpopular. The bottom was finally reached when Batman appeared in 1965, making crime fighting into an ongoing joke. Police shows made a return in the late 1960s with programs such as Mod Squad, Ironside, Hawaii 5-0, Adam 12, and The Rookies. It required integrated, hip, young police departments to bring the TV audiences back. In the larger society, while the student revolt, anti-Viet Nam War movement, and civil rights campaigns were still prominent, a law and order rhetoric became the new political line of conservative political candidates. Nixon's victory in 1968 was a sign of the return to conservative ways.

By 1976, lawyer on prime-time TV had all but disappeared. The cops were turned lose to browbeat suspects and witnesses while acting as judge, jury and, frequently, executioner. Fighting crime was primary; the constitutional rights of suspects and defendants were treated as impediments to justice. But, by the early 1980s, cop shows no longer permitted law enforcement to manhandle suspects and witnesses for no reason. The stressed-out cops were humanized, and permitted to show their emotions and fears. Shows like Cagney and Lacey, Hill St. Blues, and even Miami Vice dealt much more with the everyday problems of cops than catching the bad guys. Lawyers were about to make a return.

LA Law, which premiered in 1986, brought lawyers back to prime time. They handled their share of criminal cases, but civil lawsuits were portrayed each episode as well. Each week firm attorneys got to deal with significant social issues. Disputes over surrogate motherhood, "outing" gays, abortion, euthanasia, the death penalty, and racist cops were all aired. The cases seemed to be taken directly from the news; the writers admitted that they were.

However, the lawyers of LA Law are quite different from Perry Mason, in that their lives are much more complicated. Perry always did whatever was best for his client, and seemed little concerned about his own existence. On LA Law, the lawyers are "Yuppies," worried intensely about their own self-fulfillment, which had to be balanced against the needs of their clients and the best interests of the firm. The struggle was to somehow remain "ethical," while in the contemporary LA as depicted on the show it was not always clear what that meant.

Prosecutors Are Finally Recognized

Unlike Perry Mason, LA Law had a prosecutor as one of its heroic characters. Grace Van Owen (Susan Dey) took on a number of win-at-all-costs defense attorneys, and still managed to put away some of the most despicable of LA's street hoodlums and white collar criminals. However, Grace went through a number of personal struggles over ethics, and proved unwilling to adopt the win-at-all-costs strategies of her opponents. When she found out that one of her suspects had been convicted by perjured testimony she fought for his retrial in the face of tremendous pressure from the DA, and knowing full well if the criminal was released he would most likely kill again. Unable to continue in the prosecutor's office, she later joined the firm of MacKenzie and Brachman, but was never quite certain she truly belonged there either. For a short time Grace served as a judge, one of the rare times a character playing such a role has been featured in prime time drama. Grace, finding the job too difficult, and herself lacking in the requisite Solomonic skills, resigned.

In 1990, ABC created Equal Justice, an LA Law clone ensemble cast, only this time all the lawyers work for the New York City D.A.'s office. While they fought hard to get convictions, they struggled with ethical and personal problems, too. In the Perry Mason TV era, courtroom defenders and not prosecutors were pictured as the real heroes of the adjudicatory process. By 1990, this had changed dramatically. Prosecutors have won a newly found respect on TV prime time shows. It's much easier to sell the image of the prosecutor as the protector of society today, and TV has mirrored that change. 

Defense attorneys much more frequently take it on the chin today. LA Law showed some purely mercenary defense attorneys. Defending drug kingpins and getting them off on "technical violations" were depicted. Such attorneys were opposed by the virtuous Grace Van Owen. Defense attorneys now often depicted as "slimy" and willing to do anything to get their clients off.

How far prosecutors have risen can be seen on Law and Order, a hybrid cop-lawyer show, in which the second half hour is given over to watching prosecutors in action. Law and Order is the first crime drama to demonstrate the symbiotic relationship between police and prosecutors.  

Legal dramas have been so popular they can be satirized on shows like Ally McBeal, or made part of the reality TV craze with People's Court and its clones. While to date there has not been a criminal court reality show (Court TV brings us real trials everyday), reality courtroom shows have featured small claims, civil complaints, divorce hearings, and animal victims. The real star of these shows is always the judge, typically chosen for their strong personalities and penchant for "gonzo justice." I would not want to end up in Judge Judy's  court! 

Hollywood Focuses on Trials

If one depended solely on Hollywood for ones knowledge of the court system and the lawyers and judges involved in it, the result would be a very skewed perspective. Films and television dramas give the mistaken impression that most defendants have trials, and that they are either found guilty or exonerated only after a jury of their peers has heard all the evidence.

A more thorough presentation of the justice process following arrest would have to take into consideration two facts about the way the system actually operates: (1) the fact that a very high percentage of all criminal cases are dropped before they ever get to trial and, (2) the fact, that an overwhelming number of cases in which the defendant is found guilty are the result not of a jury trial, but of plea bargaining. In some jurisdictions over 90% of all cases are handled by negotiated plea of guilty. Fictional media portrayals of criminal law continue to take the tone that such dispositions are the exception rather than the norm.

Dropped Cases: Hollywood's Version

Why are so many cases dropped? When Hollywood depicts a dropped case, more often than not they would have us believe that the major reason is legal technicalities (or as the ACLU would call them, violations of a citizen's Constitutionally guaranteed rights). Alan Dershowitz, Harvard Law School Professor, analyzed the cases that were dropped for legal technicalities on prime-time TV in the mid 1980s in article entitled "The Cops are All Guilty." Prime-time shows invoke the exclusionary rule or other Constitutional protections on a regular basis, using such as scapegoats for the system's inability to control crime. The not-so-subtle message is that if you want the streets to be safe you might have to give up some of your Constitutional rights. Dershowitz argued that it is a myth that the Bill of Rights is to blame for freeing bad guys.

The other major issue Dershowitz debated with Hollywood was its portrayal of law. "The law is always clear and certain" on prime-time television. However, Dershowitz stated in rebuttal: "The law--especially criminal law--is accordian-like in its flexibility, roulette-wheel like in its unpredictability, and often Janus-like in its hypocrisy." Since attorneys and judges are people one can expect the same degree of uncertainty when its comes to carrying out the law one would expect in other human endeavors. In this regard, Dershowitz chose the sitcom Night Court as the most accurate portrayal of the law on TV at that time. Harry Stone, the judge played by Harry Anderson, showed all his human foibles, as did the attorneys.

A number of studies have pointed out that criminal cases are not lost in any appreciable numbers as a result of use of the Exclusionary Rule or other Constitutional safeguards. While defense attorneys routinely file suppression motions, almost all are rejected by judges. Less than 1% of all cases are dropped because of Constitutional problems. The only area in which these numbers are significant is in drug arrests, where questionable law enforcement techniques such as drug courier profiles have sometimes failed judicial review.

Then why are so many cases dropped in the non-reel world? There are two major reasons: (1) lack of evidence (2) uncooperative witnesses. Without evidence it is difficult to get a guilty verdict. Rather than risk taking losing cases to court (and lowering their win percentage), DA's routinely dispose of such cases by dropping them (or sending them to diversion.) No prosecutor wants an uncooperative witness and will in all likelihood drop such cases. Recent changes in spouse abuse laws which require unwilling testimony from spouses have prosecutors wondering what to do.

So why does the myth persist that the Exclusionary Rule frees so many criminals? Kevin Wright believes it is because the myth serves two positive functions. Both deflect the public from the inevitable inadequacies of the American criminal justice system. The first is political, the second shields law enforcement from criticism. The system does not have the ability to convict all defendants. Making the Exclusionary Rule the fall guy shifts blame from the law and its administration. Secondly, the Exclusionary Rule myth removes blame from law enforcement and its inability to stop crime. Wright does not criticize the police for their failure, and points out that such a goal is impossible. Rather than admit such a truth, the Exclusionary Rule serves as a convenient target to blame. If we would only "unleash the cops," crime could be severely curtailed.

No Plea Bargaining

Although the overwhelming majority of cases are plea bargained, media portrayals are almost always of trials. On fictionalized crime dramas courtroom trials are the norm with plea bargaining being the exception. The major reason for this is that Hollywood thrives on depicting dramatic adversarial legal battles. Such battles can only take place in front of a jury. On the older courtroom dramas such as Perry Mason, the lawyer dazzled us with his courtroom legal heroics each week. In more current reality-based shows like LA Law plea bargaining negotiations were sometimes shown. However, most cases on that show continued to trial with a jury bringing back the final verdict. While plea bargains occur infrequently on lawyer shows, they do sometimes play a significant role on cop dramas. Plea bargains are used as a literary crutch to explain why a very violent or nasty criminal is once again on the street to commit new crimes. However, since 90% of all cases are plea bargained, such a fact should surprise no one watching the program. Still, the shows would lead you to believe a trial verdict would have prevented the criminal's rapid return to the streets.

Misperceptions of Law

Lawyers and others who have studied criminal law or had considerable interaction with the court system frequently criticize the way criminal law and courtroom procedures are depicted by Hollywood. A trained jurist can often spot dozens of errors in most courtroom movies or TV lawyer shows. In Reel Justice, attorneys Bergman and Asimov (1996) systematically detail the legal errors in Hollywood courtroom dramas. For example, in their discussion of the classic Anatomy of a Murder (1959), the authors criticize the tactics of both attorneys as unethical and unlikely to pass judicial review (p. 237). One of lawyers even violates one of the basic norms of courtroom argument: "never ask a question in court that you do not already know the answer to!"

A more recent film can also serve as an example. In Before and After (1996) a 16 year old commits a murder in Massachusetts. While such a case would have in all likelihood have been transferred to adult court (in Massachusetts the law allows a juvenile court judge to send to adult court any youth he or she deems can not be helped by juvenile programs), this case is not. Then the movie depicts the youth being held in a jail-like building (not a juvenile detention facility), a bail hearing (juveniles are not entitled to bail), a jury trial (juveniles are not entitled to jury trials), and a five year sentence to a "juvenile correctional facility" (Massachusetts deinstitutionalized all of its juvenile correctional facilities in the 1970s). While the focus of the movie is not on criminal law, but on how a family responds to adversity and whether it will do the right thing, the film's integrity is suspect because it lacks a fundamental understanding of law. Luckily, for both moviegoers and legal scholars, the trial itself was never shown at all.

Movie and TV prosecutors and defense attorneys routinely violate procedural law, are allowed to make speeches rather than present testimony or evidence, present secret evidence or witnesses not shared with the opposing side, etc. All the while judges seem oblivious to what is going on around them, allowing gross violations of procedural law to occur. While there are exceptions (ex-prosecutors like Scott Turow have become novelists and screenwriters (Burden of Proof) (1992) and (Presumed Innocent) (1990)), the major reason Hollywood depicts law so inaccurately is that real law is not dramatic enough to draw in viewers.

 

For example, while the O.J. Simpson trial was broadcast everyday for months, the testimony of most witnesses was technical, drawn out and, ultimately, boring. There were few dramatic moments such as when the defendant was asked to try on the ill-fitting gloves.

Photo by Reuter's News Service

For Hollywood, the courts serve as an arena where high drama can occur. Like sports, viewers tune in because the outcome is not certain, momentum may switch from side to side, heroes and goats will emerge, and a fateful moment can determine one's future destiny.

Is Justice Possible?

According to Rafter, nearly all courtroom films are about one issue: the difficulty of achieving justice (in a capitalistic, money is power, society). Legal films have a "justice figure" (a hero who tries to bring justice to a client(s)) and an "injustice figure" (the person responsible for creating and maintaining the gap between justice and man-made manipulatable, law). Depending on whether the film's true victim is a falsely accused citizen or a crime victim(s), the injustice figure would be in most cases the state prosecutor and defense attorney respectively.

The Verdict (1982). Paul Newman's eloquent summation: "When there is no justice, the rich win, the poor are powerless. We become tired of hearing people lie... We doubt our institutions and we doubt the law." Then Newman puts it right to the jury: "You are the law." No matter what the judge or the attorneys or the courts say, the people are the law.

Justice is not defined legally in Hollywood films. If in a court of law, a decision is rendered for one side on the basis of evidence presented in an adversarial proceeding, that is "justice." The courts rely on man-made laws and judicial procedures to make decisions. For Hollywood, justice is based on a higher principle, one of ultimate rightness, rooted in natural law. When the courts are not able to made a decision to side with the "right," they are critiqued as either corrupt, purchased by the highest bidder or most persuasive attorney, or blind or biased. In mainstream courtroom movies, any injustices suffered by the victim are made right as the "best" attorney (conveniently given to the real victim by the screenwriter) wins the case. Thus, true justice is rendered. In films made before 1980, you could just about be assured that this would be the case. After 1980, films such as Presumed Innocent and Primal Fear (1996) began accepting the impossibility of achieving justice in the courtroom.

In the 1990s, lawyers and judges were themselves depicted as criminals in a number of anti-establishment films. Such films used lawyers as plot devices rather than seriously investigate ethical issues. A film that did attempt to ask questions about morality and law was Judgment at Nuremberg (1961), which looked at the role of German judges under Hitler's regime. Faced with carrying out law they may have fundamentally disagreed with personally, the Nuremberg trials nevertheless attempted to hold some judges responsible for their actions in sentencing Jews to die.

Even when the lawyers are ineffective, it is still typically up to jury to decide the fate of the accused. That the jury is the ultimate safeguard of American law is depicted in films such as Twelve Angry Men (1957).

 

12 Angry Men (1957) is the gripping, penetrating, and engrossing examination of a diverse group of twelve jurors (all male, mostly middle-aged, white, and generally of middle-class status) who are uncomfortably brought together to deliberate after hearing the 'facts' in a seemingly open-and-shut murder trial case. They retire to a jury room to do their civic duty and serve up a just verdict for the indigent minority defendant (with a criminal record) whose life is in the balance. The film is a powerful indictment, denouncement and expose of the trial by jury system. The frightened, teenaged defendant is on trial, as well as the jury and the American judicial system with its purported sense of infallibility, fairness and lack of bias. The jury of twelve 'angry men,' entrusted with the power to send an uneducated, teenaged Puerto Rican, tenement-dwelling boy to the electric chair for killing his father with a switchblade knife, are literally locked into a small, claustrophobic rectangular room on a stifling hot summer day until they come up with a unanimous decision - either guilty or not guilty. The compelling, provocative film examines the twelve men's deep-seated personal prejudices, perceptual biases and weaknesses, indifference, anger, personalities, unreliable judgments, cultural differences, ignorance and fears, that threaten to taint their decision-making abilities, cause them to ignore the real issues in the case, and potentially lead them to a miscarriage of justice.

Fortunately, one brave dissenting juror votes 'not guilty' at the start of the deliberations because of his reasonable doubt. Persistently and persuasively, he forces the other men to slowly reconsider and review the shaky case (and eyewitness testimony) against the endangered defendant. He also chastises the system for giving the unfortunate defendant an inept 'court-appointed' public defense lawyer who "resented being appointed" - a case with "no money, no glory, not even much chance of winning" - and who inadequately cross-examined the witnesses. Heated discussions, the formation of alliances, the frequent re-evaluation and changing of opinions, votes and certainties, and the revelation of personal experiences, insults and outbursts fill the jury room.

Of course, the jury does not "always do the right thing." In To Kill a Mockingbird (1962), the all white Southern jury circa 1932 votes to convict a black defendant of an attack upon a white woman, when reasonable doubt certainly should have prevailed. Mississippi Burning, (1988) based on the real life 1964 trial of 18 men accused of conspiring to kill 3 civil rights workers (7 were found guilty, the rest acquitted or hung jury), again showed an all white Southern jury. In The Juror (1996), the jury system is tampered with by a mafia operative.

The Pre-Trial Legwork is the Hard Part

While Hollywood has turned somewhat sour on attorneys, it has shifted focus to the intensive investigative work and costs required to prepare a case for trial. Two films that fall into this category are Erin Brockovich (2000) and A Civil Action (1998). The two films are similar in that they focus on efforts to bring giant corporations to task for poisoning local water supplies, depict civil attorneys as battling opponents with seemingly endless financial resources (and the top flight legal services these can provide), and fit well within a critical criminology perspective.  The critical perspective would argue that poisonings such as those described in the films should be treated as crimes rather than as civil tort matters. The reason that such killings are not crimes has everything to do with the power of big business to deflect efforts to criminalize these matters.

Erin Brockovich (2000) focuses more on the efforts of legal staff workers to collect the evidence necessary to prepare a tort action and to make sure clients stay on board through trial rather than settle individually.

Erin Brockovich explains why she thinks there is enough evidence for a suit against the company.

While the real life debate about what impact the chemicals dumped by Pacific Gas & Electric have on human beings continues, the company settled the legal case by paying out $333 million to the plaintiffs (largest settlement ever).

A Civil Action (1998) was based upon a legal suit filed against the Grace Corporation which produced an official record of 196 volumes of sworn deposition testimony, 78 days of trial testimony and 57 volumes of pre- and post-trial hearings. From the filing of the lawsuit to the exhaustion of all appeals took eight and a half years.

John Travolta plays a civil attorney whose
 single-minded pursuit of a case nearly bankrupts his law firm.

"All the important events happen outside the courtroom." Liberated from the constrictions (physical and otherwise) of making the trial its foundation, A Civil Action the movie puts its heart into the environmental-disaster case and Schlichtmann's hubristic rise and fall. Most moving is the depiction of the David-and-Goliath struggle between the parents (all lumberjack shirts, big jackets and shapeless cardigans), who simply seek an apology for their children's deaths, and the polluting factories and their haughty lawyers. Cinematic convention in the liberal trial film dictates (see The Accused) that a natural correlation exists between the emotional and the legal: whomsoever the audience identifies with almost always wins the case, with back-slappings, embraces and sanctimony all round. A Civil Action permits this fantasy for a while, only to let us down as the law outsmarts the grieving parents. (From Stella Bruzzi's review).

Atom Egoyan's film The Sweet Hereafter (1997) also dealt with a lawyer trying to find clients to file a lawsuit. As played by Ian Holm, the attorney must convince each potential client (and himself) that the direction for their rage over loss of a child in a bus accident must be to sue. Whether money can bring justice or only more disruption to the town is debated in this "critical" film.