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Volume 24, Number 2 (2000) FILM COMMENTARY MICHAEL ASIMOW* Rejoice, pop culture fans: heroic lawyers, and their sidekicks, heroic clients, have returned from the grave. In David Mamet’s brilliant and inspiring new film The Winslow Boy, the central characters are a heroic lawyer, Sir Robert Morton, and two heroic clients, Arthur Winslow and his daughter Catherine. The central character in The Castle is a heroic client, Darryl Kerrigan, who wins a smashing victory with the help of a public-spirited lawyer. Arthur persuades Sir Robert Morton to accept Ronnie’s case. Morton is a Member of Parliament and the most famous barrister in England. To some, the case might have seemed trivial or hopeless, but to Sir Robert, it presents issues of surpassing importance. He puts his entire political and legal career on the line for Ronnie Winslow. In the end, Sir Robert pays a high price indeed for serving as Ronnie’s champion. Morton must first engage in a parliamentary struggle to persuade the government to waive sovereign immunity so the case can be heard. The struggle between the lad and the government becomes a huge cause celebre in the press and is discussed everywhere in the country. Ultimately, the government yields by issuing a petition of right, a document inscribed “let right be done.” This allows the case to come to trial and Ronnie finally gets his day in court. If Ronnie’s case arose today, it would probably be in the form of judicial review of the Academy’s decision rather than a trial de novo in court. Morton would have argued that Ronnie had been denied due process because the Academy’s inquiry process lacked basic procedural protections. The same would be true in England, since English law has developed solid procedural protections under the rubric of natural justice. Moreover, sovereign immunity would be no defense. The idea that the King can do no wrong has long since been discarded in actions seeking judicial review of the actions of governmental bodies. Perhaps the best part of The Winslow Boy is its focus on what happens to the Winslow family during the long struggle with the government to bring Ronnie’s case to trial. Arthur Winslow is a middle class retired banker in poor health with three children. He has every reason not to pursue the struggle. After all, Ronnie has relocated to a new school; why not let the unfortunate matter be forgotten? Moreover, on the merits, it looks like the Academy got the goods on Ronnie, so the case is very much an uphill struggle. But Ronnie says he didn’t do it and Arthur believes a grave injustice has been done. He is, therefore, prepared to fight to the bitter end, regardless of the cost. He is staunchly backed by his suffragette daughter Catherine, a marvelously engaging and admirable character, a feminist way ahead of her time. The financial costs to the Winslow family of pursuing Ronnie’s case are crushing. Even worse, the case has a devastating impact on the personal lives of each member of the family and on Arthur’s health. They are engulfed in unwelcome publicity and besieged by the press. Yet an issue of principle is involved and Arthur and Catherine simply will not yield, despite enormous pressure to do so. At first, we thoroughly dislike Sir Robert. He seems cold, harsh, totally lacking in emotion or empathy. Catherine, in particular, detests his conservative politics and what she sees as his opportunism. By the end, however, we see an entirely different side of Sir Robert. Even Catherine, who lost her fiancé over the Winslow case, begins to realize that she has gravely underestimated him. And so Sir Robert turns out to be an admirable person as well as a crafty and skillful attorney. The Winslow Boy is a remake of a terrific 1950 film and an oft-performed 1946 play by Terrence Rattigan. All are based on the 1908 case of George Archer-Shee, who like Ronnie Winslow was a young naval cadet expelled for stealing a money order. Archer-Shee’s case was taken up by the leading barrister of the time, Sir Edward Carson (who had previously prosecuted Oscar Wilde). As in the film, the case became a subject of tremendous controversy in England. Carson induced the government to grant a petition of right that allowed the case to come to trial. Archer-Shee was victorious in the trial; he was killed in World War I. Darryl Kerrigan is a loving family man deeply attached to his home, even though it’s right next to the Melbourne airport and built on toxic waste. Imagine his shock when the airport tries to acquire it through compulsory purchase (“eminent domain” in American lingo) to expand the freight terminal. He decides to fight back on the theory that “a man’s home is his castle.” As obstinate as Arthur Winslow, Darryl fights his way through four layers of the Australian administrative justice system with little regard for the costs. The second stage is Australia’s Administrative Appeals Tribunal. This is an institution unique to Australia. It’s an independent body that provides adjudicatory hearings for all administrative agencies (unlike the American or British system in which each administrative agency provides its own hearings). Representing himself, Darryl’s legal argument is that the law must provide justice and it isn’t just to take away a man’s home without his consent. Needless to say, his argument fails. It’s been a long time since law and justice were the same thing. At the first judicial review stage, Darryl is represented by Dennis Denuto, undoubtedly the single most incompetent lawyer in the history of film (but perhaps the funniest). Denuto is reduced to relying on “the vibes” from Australia’s famous Mabo decision which recognized aboriginal land claims. The breakthrough comes when Darryl makes the acquaintance of a kindly older gentleman who turns out to be a retired Queen’s Counsel, a distinguished barrister named Lawrence Hamill. Hamill takes Darryl’s case pro bono to the Australian Supreme Court. He relies on a provision in Article 51 of the Australian constitution providing that a compulsory purchase can only be on “just terms.” Hamill argues that acquisition of someone’s house for a freight terminal owned by a multinational corporation is not “just terms,” regardless of the fairness of the price to be paid for the property. Needless to say, this is not good constitutional law in Australia or anyplace else, but it sounds great in the film. Indeed, like the denouement in The Winslow Boy, it is downright inspiring. The Winslow Boy and The Castle bring the heroic lawyer and the heroic client front and center. Both involve pigheaded clients who found great lawyers willing to fight for a principle. These films can be celebrated, even if Sir Robert and the Winslows, and Lawrence Hamill and the Kerrigans are from lands far away and (in the case of The Winslow Boy) a time long ago. If these films are as successful as they deserve to be, perhaps filmmakers will again see possibilities in making movies about great lawyers and great clients. (February 1998) Manion clearly gunned down Barney Quill in Quill’s bar. But why did he do it? Icy prosecutor Claude Dancer (George C. Scott in an awesome debut) claims it happened in a jealous rage when Manion found out that his wife Laura (a very sexy Lee Remick) and Quill were having an affair. Homespun defense lawyer Paul Biegler (Jimmy Stewart in an unforgettable portrayal) would rather be catching trout. He claims it happened because Manion was seized by an irresistible impulse––he just found out that Quill had raped Laura after picking her up in the bar. The trial is a slam-bang affair with wonderful twists and turns, always informed by a deep understanding of the unexpected dilemmas and quick decisions that confront every litigator. The film is loaded with fascinating legal issues, such as the validity and applicability of the irresistible impulse version of the insanity defense. It raises numerous issues of trial practice, tactics, and ethics. It poses the issue of whether a cross-examiner should ever ask a question to which he doesn’t know the answer. The sensational jazz score was written by Duke Ellington. The wise-owl judge was played by Joseph N. Welch, who won fame representing the Army in the Army-McCarthy hearings of the early 1950s. In his famous “lecture,” Biegler skates close to the line of unethical witness coaching–that is, knowingly altering a witness’ story about the events in question. When Biegler first meets Manion in jail, he manages to overcome the client’s intense mistrust and then the discussion turns to whether the client has a defense. How far can counsel go in suggesting a defense to a client who hasn’t a clue? And should the lawyer discuss possible defenses before asking the client what happened? Because once the client has told the attorney his story, that freezes the client’s version of the facts; it’s too late to mold the facts to fit a particular defense. Clearly it is improper to assist the client to make up facts that never occurred. Model Rule 3.4(b) states that a lawyer must not “counsel or assist a witness to testify falsely.” But it’s perfectly OK (indeed obligatory) for counsel to interview a witness and to discuss his testimony in order to assist the witness to testify effectively. And surely it is appropriate to tell a client what the law is, even if that suggests a defense to the client that he might not have realized was available. The problem is that a clever attorney can convey an implicit message to a witness that alters the witness’ testimony–without ever coming out and actually telling the witness to do it. In the film, Biegler is obviously quite aware of the limits on witness coaching, but most observers think he stayed on the ethical side of the line. Without first asking Manion exactly what happened, he tells Manion about the categories of justification and excuse and rules out each possible claim. For example, killing in the defense of another is a possible justification–but not an hour after the purported rape occurred. Biegler also nixes the “unwritten law” which allows you to kill someone whom you discover in flagrante with your spouse. Not recognized as a defense in Michigan, unfortunately. So Biegler keeps Manion guessing until Manion says “I must have been mad.” Sorry, bad temper isn’t a defense. “No,” says Manion, “I must have been crazy.” “Well, Lieutenant,” replies Biegler, as he steps from the room, “in the meantime, see if you can remember how crazy you were.” So the client comes up with the defense, albeit with a bit of gentle prodding from the attorney, and either remembers or fabricates the facts to support that defense. In the book version, Biegler goes a step further. The suggestion for the insanity defense comes from Biegler, not from Manion. Speaking in the first person, Biegler recounts his conversation with his client: “Then, finally there’s the defense of insanity.” I paused, and spoke abruptly, airily: “Well, that just about winds it up.” Then Manion starts asking questions about insanity. Biegler plays dumb and answers the questions, but tells the reader: “My naivete was somewhat excessive; it had been obvious to me from merely reading the newspaper the night before that insanity was the best, if not the only, legal defense the man had. And here I’d just slammed shut every other escape hatch and told him this was the last. Only a cretin could have missed it, and I was rapidly learning that Lieutenant Manion was no cretin.” (45-46). It can be argued that, in the book’s version, Biegler overstepped the line by coaching his client right into a made-up defense.1 The movie, however, is more subtle. The client comes up with the defense, but obviously with a lot of help from his lawyer. Do we now tolerate any sort of coaching short of telling the client to lie? It’s very rare for an attorney to be punished (criminally or ethically) for witness coaching, because the offense occurs in private. Yet current events in the nation’s capitol remind us that subornation of perjury isn’t always a well-kept little secret. The great film Anatomy of a Murder makes us focus on the elusive distinctions between appropriate witness preparation and inappropriate coaching. (November 1998) Just another day at Donnell, Young, Frutt and Dole, the law firm in The Practice. Its first four episodes in its third year produced crackling legal dramas, maintaining and often exceeding the high standard this Emmy-award winning show set in its first two seasons. Camryn Mannheim, who won the best actress Emmy for her portrayal of Ellenor Frutt, continues to turn in superb performances. In my view, The Practice and Law and Order, and the superb 1960's era show The Defenders, are the finest legal drama series that have ever appeared on television. For those who haven’t seen The Practice (Sunday nights, ABC), it’s all about the practice of a scrappy, struggling Boston law firm. The Practice was created by David Kelley who writes many of the episodes; Kelley also created and still writes Ally McBeal, a relationship show set in a law office that I personally find unwatchable. Needless to say, Ally McBeal continues to pull in fabulous ratings; young professional women relate passionately to its protagonist. Originally the firm consisted of Bobby Donnell and his associates, but after an internal struggle, Bobby made Eugene Young, Ellenor Frutt, and Lindsay Dole partners. Jimmy Berlucci is still an associate, but his skill level seems to be improving. In a major surprise, overqualified receptionist Rebecca Washington passed the bar and became an associate (nobody knew she was going to law school). So far she seems to be a terrific lawyer. One of the best things about The Practice is that it thrashes out thorny issues of legal ethics on screen. In the case of the severed head, for example, the attorneys engage in a passionate debate about what to do. The lawyers seek a legal opinion from noted ethicist Anderson Pearson, who they happen to be representing in another murder case. Pearson says they have no obligation to turn over the head. Ultimately, the lawyers decide to deliver the head to the District Attorney and they surrender the client at the same time. This is largely a tactical decision. Since the client professes innocence, the best strategy is to cooperate with the police. But what is the firm’s ethical obligation in the severed head case? Must the attorneys turn over the head to the police? If so, must they identify the client as the source? Must they also turn over the client’s medical bag (which will probably lead the cops to the client)? Can the attorneys represent the client but not deliver the head to the police by refusing to take custody of it? Under that scenario, how should they explain the situation to the client? It seems clear that if the attorneys take custody of the head (or any other physical evidence of crime), they must turn it over to the police. Probably they must deliver the head in the medical bag in which the client claims he found it (otherwise they would be tampering with the evidence). Since the evidence came from the client, they should not disclose the source to the police. At trial the jury should not learn that the evidence came to the police from the defense attorney. On the other hand, an attorney is not required to disclose the existence or location of evidence that he never took custody of, as long as the attorney does not move that evidence or make it more difficult for the police to find. The famous dead body case of People v. Belge,2 held that attorneys who knew but failed to disclose where victims were buried committed no crime. A subsequent ethics opinion indicates that the lawyers in Belge violated no ethical rules either. Cases like Belge may mean that the attorneys could avoid the whole problem by not taking possession of the head. They might first explain their ethical obligation to the client. The client can then simply pick up the head and take it away. Some would say that this course of action violates ethical canons because it is likely that the client will quickly dispose of the evidence. But others would respond that this case is no different from Belge, where the attorneys ethically avoided any obligation of disclosure of the location of bodies yet were allowed to represent the client. In another show, a frantic client calls Ellenor on his cell phone. He’s just run down a pedestrian and he had been drinking. In fact,. there’s an open bottle of whiskey in the car. What should he do? Ellenor thinks a bit and advises him to start drinking it “to settle his nerves.” Then when he flunks the breath test, the cops can’t tell whether he was drinking before or after the accident. It seems clear that Ellenor’s advice was grossly unethical. It is like counseling the client on where to hide the gun that was used to commit a crime. She obstructed the police’s access to evidence and unlawfully concealed material having potential evidentiary value, in violation of the Model Rules of Professional Conduct, Rule 3.4. She also assisted the client in conduct that the lawyer knows is criminal or fraudulent under Rule 1.2. But the ethical issue didn’t disappear; everybody called Ellenor on her ethical lapse, including her boss Bobby Donnell (who happened to be the pedestrian struck by the client). This criticism triggers a serious identity crisis of the sort all lawyers must undergo from time to time. Ellenor wonders how she could have sunk to such depths. Fortunately, by the next episode, she is back to her usual self. The Practice serves up tasty ethics puzzles and explores with great sensitivity the personal crises that arise in the practice of law. The show is always interesting, sometimes corny, often downright terrific. |
