Chapter Twelve Constitutional History and the "Cultural Turn": Cross-Examining the Legal-Reelist Narratives of Henry Fonda Norman L. Rosenberg Law is a vast construction of representations. Studies of representation and narrative, familiar concerns in cul- tural history,1 are becoming part of legal and constitutional history as well.2 Interest in representation and narrative, in turn, dovetails with broader projects, especially those that bring together legal and cultural studies, and thereby expands the types of sources to be read as "legal texts."3 The category of "legal writing" now embraces titles from the literary canon, artistic products, popular fiction, motion pictures, television shows, and a variety of textual traces of "the law.4 As a consequence of this cultural-linguistic turn, "legal reelism," the study of Hollywood films as legal texts, has become a recognized genre of legal-constitutional writings.5 The Hollywood film industry has long looked at, and spoken about, law. Much like an appellate court opinion, a film explicates a legal controversy through narrational frameworks and represen- tational codes that, while similar to those found in other types of cultural texts, incorporate their own unique qualities.6 Few other modes of storytelling have ever reached more people than the Hollywood cinema, and legal reelism might be said to epitomize what Karl Llewellyn once called "jurisprudence for the millions."7 Even before movies began to talk, the silent cinema told legal tales, including ones set in courtrooms, and the coming of sound made the trial film a Hollywood staple during the 1930s.8 Most of these films, such as A Free Soul (1931), for which Lionel Barry- more won an Academy Award, center on a colorful but corrupt criminal defense attorney - a "mouthpiece" or "shyster."9 To suggest a way of locating the place of Hollywood films in constitutional history, I want to highlight several motion pictures that feature Henry Fonda. A film "Star" (rather than simply a "star") during five decades,10 Fonda became one of those "representative figures" who help citizens to construct, through mass-mediated imagery, their nation's constitutional culture. Representative fig- ures, the political theorist S. Paige Baty argues, provide "a common means of relaying stories and constructing histories which are easily circulated and imaged across great distances of time and space." They supply these histories with "iconic figures through whom mul- tiple meanings, references and roles are remembered."11 "Mass- mediated representative characters incorporate citizens into a repre- sentational nation, enabling them to interact with a virtual community," Baty concludes.12 More specifically, Hollywood Stars such as John Wayne, Clint Eastwood, and Henry Fonda can provide enduring symbols around which cultural narratives about the nation's consti- tutional culture can be represented.13 Even after their death, these representative figures remain part of an ongoing process of cultural production, reception, and reproduction as their iconic images con- tinue to circulate within a mass-mediated mode of information.14 The legal-reelist texts of Henry Fonda construct his "populist outlaw hero" as a representative character. As the cultural historian Richard Slotkin suggests, Fonda came to represent "an uncommon common man, laconic, folksy, commonsensical, basically decent, yet quick, skillful, tough, unsentimental, and capable of effective and violent action."'15 Fonda's iconic character articulates what seems to be an intuitive, commonsense vision of justice.16 This character ap- pears in a number of legal-reelist texts, and I will look at several of these to suggest how Hollywood films might be seen as part of "constitutional history." To move beyond more traditional sources and look at motion pictures requires cross-examining filmic texts in ways that, ini- tially, may seem strange to constitutional historians.17 As the law professor Paul Kahn argues, however, "we shall never understand the meaning of the rule of law in American political life if we look only at particular laws and particular [court] decisions." The study of legal-constitutional history involves "an examination of the ways the imagination shapes political meaning in the American polity."18 This "imaginary" dimension of constitutional history, this chapter suggests, appears most vividly in Fonda's final legal reelist role as Clarence Earl Gideon, a leading character in the drama that students of constitutional history know as Gideon v. Wainwright (1963).19 Gideon's Trumpet (1980) - a filmic representa- tion of this case, which itself involves multiple issues of legal rep- resentation, relies on the meanings that had come to cluster around the Star image of Henry Fonda. Over time, an iconic film Star such as Fonda accumulates and changes meanings in a way that is roughly analogous to how a legal doctrine, such as the "right-to-representation-by-counsel" issue at stake in the Gideon case, accumulates and changes mean ings. In the case of both a film Star and a constitutional doctrine, past "performances" are important. Just as the meanings of a doc- trinal principle accrue over time, case by case and treatise by trea- tise, so the meanings signified by a filmic icon such as Henry Fonda are constructed and reconstructed intertextually, movie by movie and role by role.20 Thus, familiar legal texts such as the Supreme Court's opinion in Gideon v. Wainwright or Anthony Lewis's Gideon's Trumpet,21 a journalistic account that inspired the Fonda film of the same name, trace the pre-Gideon case law to explain how the Supreme Court came to interpret the right-to- representation-by-counsel doctrine as it did in the Gideon decision itself. In much the same way, this chapter focusing on the legal work that the Star image of Henry Fonda performs in Gideon's Trumpet will look at pre-1980 films to highlight the "legal-reelist process" through which the law-related meanings of Fonda's iconic image were constructed. Ironically, accounts of the chang- ing meanings of the right-to-representation-by-counsel doctrine and of Fonda's legal image begin at roughly the same point in time, the 1930s. At about the same time that the U.S. Supreme Court was wrestling with the meaning of this doctrine, particu- larly in the Scottsboro cases, Henry Fonda was emerging as a Hollywood film Star. Fonda's representative character took shape slowly, as the actor starred in an extraordinary number of legal films. In Fritz Lang's You Only Live Twice (1937), Fonda played a man whom a jury wrongly convicts, and sentences to death, for committing a murder. Eventually, he escapes from prison but is hunted down and killed by the police.22 Two years later, in 1939, Fonda por- trayed both Abraham Lincoln, at the beginning of his legal career, and Frank James at the outset of his extralegal one with brother Jesse.23 The following year, Fonda became firmly identified with the populist outlaw image when he starred in The Return of Frank James (1940) and played John Steinbeck's Tom Joad in John Ford's film version of The Grapes of Wrath (1940). During the 1940s, Fonda starred in The Ox-Bow Incident (1941), an antilynching drama, and played the famous law officer Wyatt Earp in Ford's My Darling Clementine (1946). During the 1950s, he played the title role in Al- fred Hitchcock's The Wrong Man (1956) and portrayed the pivotal figure in one of this nation's most famous (albeit fictional) trials, the case of 12 Angry Men (1957). After a number of other legal films (particularly in the western genre) during the 1960s and 1970s, Fonda ended his legal-reelist career with Gideon's Trumpet (1980).24 As a means of focusing this discussion, I want to use Fonda's iconic image to highlight the differing portrayals of criminal defense attorneys in four of these film narratives. Young Mr. Lin- coln and The Wrong Man seek to translate, through different cine- matic forms, a real-life legal cause into a legal-reelist one. Many students of law consider the third Fonda film, 12 Angry Men, "realistic" enough to be used in undergraduate and even law school classes. And Gideon's Trumpet offers a popular dramatiza- tion of an important Supreme Court case on the defense counsel issue. Taken together, these four films employ the iconic character of Henry Fonda to help represent a wide range of roles for a defense lawyer. The kinds of "imaginings" in these four films-textual traces of broader legal-constitutional discourses-can help to give mean ing to Gideon v. Wainwright. By emphasizing the role of Stars, I want to suggest how the representative character of Henry Fonda has come to shape the popular imagination of this Supreme Court decision on the right-to-representation-by-counsel doctrine. Gideon's Trumpet sympathetically employs Fonda's iconic image as the populist outlaw hero to help link, in the nation's popular constitu- tional culture, the right to representation by legal counsel to the search for justice. A legal-reelist history of Gideon v. Wainwright might begin with Henry Fonda's performance as a criminal defense lawyer in Young Mr. Lincoln. Since this film appeared at the end of a decade during which the "mouthpiece" genre dominated legal-reelist filmmaking, the law professor Anthony Chase plausibly sees it as one of the first motion pictures to feature "the positive image of the virtuous lawyer."25 Other possible readings of the film, how ever, complicate this judgment. Fonda's Lincoln confronts a legal-moral dilemma when he takes the case of Adam and Matt Clay, two brothers accused of stabbing to death a frontier ruffian named Scrub White. Each de- fendant, while knowing that he didn't kill White, assumes that the other did and, therefore, refuses to say anything in court. Lincoln promises their mother, who also refuses to testify, that he will derail the trial judge's plan to save one of the brothers by estab- lishing the guilt of the other. Mrs. Clay would rather lose both sons, she tells the court, rather than allow the law, any more than she, to choose between them. Both of her boys, the innocent along with the guilty one, seem headed for the gallows, and Lincoln appears too inept to represent them effectively. The legal machinery tests Lincoln's skills. An eyewitness, J. Palmer Cass (Ward Bond), testifies that he can identify one of the boys as White's killer. Still, the brothers refuse to break ranks, and Lincoln's apparent incompetence, on display during a bumbling cross-examination of Cass, prompts the presiding judge to urge the young attorney to seek assistance from the more experienced Stephen A. Douglas (Milburn Stone). Lincoln refuses and, instead, recalls Cass to the stand. After more, seemingly pointless ques- tioning (which filmgoers subsequently discover is designed to dis- arm Cass), Lincoln suddenly turns on the state's star witness. During a savage verbal grilling, Lincoln reveals that Cass could not possibly have seen, aided only by the light of the moon as he had earlier testified, either of the boys stab Scrub White. The Farmer's Almanac, which Lincoln pulls from his top hat, reveals that the moon had already set by the time of White's killing. J. Palmer Cass's lie about having been able to see the killing under the moonlight, Lincoln insists, was designed to conceal the fact that he, and neither of the defendants, had killed Scrub White! Cass, unhinged by Lincoln's brutal cross-examination, sobbingly confesses his guilt. Young Mr. Lincoln does depart, of course, from the mouth- piece films of the 1930s. The young attorney displays total devo- tion to both his clients and to the larger cause of justice. Despite the absence of any financial reward, he sticks with the boys' case. And in the context of the 1930s, when the Supreme Court of the United States was beginning to consider in what circumstances the Constitution guaranteed a criminal defendant a competent attorney, Young Mr. Lincoln might be said to offer a powerful, pop- ular representation of the claim that meaningful defense counsel is essential for a fair trial and the protection of civil liberties, at least in a capital case.26 But Young Mr. Lincoln also displays dark, brooding, and un- settling representations of the legal process and of the defense lawyer. The camera captures Fonda's Lincoln roaming the edges of the film's frame, as if unsure of his place within the judicial sys- tem. Moreover, as a famous essay in the film journal Cahiers du Cinema argues, the film can be seen to represent Lincoln, espe- cially as he overwhelms J. Palmer Cass and then shambles awk- wardly from the courtroom, as a castrating figure who resembles the vampire-protagonist of the German expressionist film Nosfer- atu (1922). Lincoln, in this reading, is primarily concerned with demonstrating his own potency and displays only flashes of human emotion.27 Here, Lincoln may use this power to achieve justice. But what is the broader implication, the film might suggest (especially to audiences of the 1930s), of allowing such a "mon- strous" figure to invoke the lethal power of the law? Modifying this line of criticism, it might be argued that Young Mr. Lincoln tries to contain this potentially disturbing discourse about a defense attorney's power. When Fonda's Lincoln first con- siders law as his calling, for example, he is reading a copy of Black- stone. After considering only a few passages of this treatise, Lincoln decides that practicing law is a simple matter: "[T]hat's all there is to it, right and wrong." This cultural narrative, then, con- sistently plays down the reel-life Lincoln's legal knowledge learning that the real-life Lincoln clearly did possess and shows tern of the moon from the Farmer's Almanac rather than by parsing legal precedents. Fonda's Lincoln displays the natural ability to see what other people might have seen for themselves had they not been blinded by wrongheaded, legalistic assumptions. Only Lincoln recognizes that the narrative scripted by legal authorities has begun with the wrong question. The story should begin by asking who killed Scrub White, not which of the Clay boys did it. Fonda's defense attorney saves his clients not because of any special legal skills or knowledge but precisely because he lacks the qualities that mark a trained lawyer. In a number of ways, then, this film identifies "its hero as someone who works within but is not really of the legal machinery."28 Fonda's portrayal of Young Mr. Lincoln closely parallels another of his iconic roles, that of Tom Joad in The Grapes of Wrath. In the latter film, a corrupt legal-political system forces young Tom, an Oklahoma farmer who has migrated to California, to flee from the safety (and the confines) of his family and to fight for jus- tice. Tom promises his mother - and the film audience - that "I'll be around in the dark .... Wherever you can look. Wherever there's a fight so hungry people can eat, . . . wherever there's a cop beatin' up a guy, I'll be there." Fonda's character represents the populist outlaw hero who will fight to restore the natural law val- ues that the legal system appears to have corrupted. In these films, Fonda is last seen, as both Lincoln and Joad, walking up a hill, out of the filmic frame, and into "history." Taken together, Young Mr. Lincoln and The Grapes of Wrath underscore, through the iconic image of Henry Fonda, "the essential unity of the populist outlaw and the Great Emancipator," Richard Slotkin argues.29 The film 12 Angry Men (1957), by recalling this iconic image, seeks to re-present Fonda's "Young Mr. Lincoln" and "Tom Joad" as an independent-minded, justice-seeking citizen-hero. Here, Fonda's character convinces other members of a jury to reverse course and acquit a young man of the charge of having murdered his father. As in Young Mr. Lincoln, "Fonda's function [in 12 Angry Men] is to serve as the great unifier, dispelling prejudice, faulty reasoning and uncommon haste to allow others to discover the truth they would not have otherwise seen."30 And just as most filmgoers are likely not surprised when Abraham Lincoln literally pulls crucial evidence from his hat, they are probably not shocked when the iconic Fonda - the narrative does not even give his char- acter a name until the final minute of the drama - convinces his fellow jurors to change their minds and follow his lead. Fonda's juror, like the young Mr. Lincoln, can notice things that a defense attorney and eleven other jurors, including a savvy stockbroker (E. G. Marshall), overlook.31 In 12 Angry Men, then, the image of both Fonda's Joad and his youthful Lincoln seems to inhabit the jury room. From this perspective, Fonda's representative charac- ter embodies the populist constitutional ideal that preserving legal forms and protecting rights is not simply the responsibility of legal professionals, judges, and defense lawyers but that of every member of the polity.32 The film 12 Angry Men conspicuously downplays the role of the defendant's attorney. It begins, after final arguments, with the judge instructing the jurors about their duty. The defense attorney's performance, as a consequence, remains outside the filmic frame, and the audience must reconstruct it from the jury's subsequent arguments. During these heated discussions, Fonda consistently spot- lights exculpatory evidence that the defendant's court-appointed lawyer has failed to see and assumes, though a layperson, the role of the young man's attorney. As Fonda debates other members of the jury, the narrative valorizes his powers of observation and rea- soning over those of the never-seen defense counsel. After Fonda convinces one juror to change his vote from "guilty" to "not guilty," another juror explodes in anger. Even the defendant's attorney did not believe in his client's case, he rages. Right from the beginning, "you could see it!" Yes, Fonda quietly concedes, the defendant's court-appointed lawyer probably wanted no part of a case that would bring neither money nor glory. And, yes, he seems not to have believed in his client's cause. In contrast, Fonda declares, by quiet example, as much as by dramatic exhortation, that citizens must insist that the law operate by a higher standard than the one embraced by this defense attorney. Although the juror in 12 Angry Men is not quite the quintes- sential outlaw hero, his stance toward the law seems consistent with that of the representative character with whom the iconic Fonda has become popularly identified. This juror is someone who, particularly in contrast to the defendant's lawyer, has not been jaded by too much contact with the legal system. Although adopting a pose of cool detachment while framing his arguments, Fonda's character will not stand by while the legal process mechanically grinds out an automatic, possibly unjust result. From a contemporary, intertextual perspective, this character might even be seen as the "Ghost of Tom Joad" in a Brooks Broth- ers suit.33 Fonda's legal performance here also differs in at least one cru- cial respect from that in Young Mr. Lincoln: 12 Angry Men eschews the "who-done-it" framework. Fonda's juror claims no special insight or opinion about the guilt or innocence of the defendant. His primary concern is to ensure that the process works, that the young man receives a fair hearing and the kind of legal represen- tation that his defense attorney has failed to provide. To do this, he simply wants "to talk," he tells the jurors who want to brand him as a bleeding-heart liberal. As the film scholar Bill Nichols observes, Fonda brings closure to the narrative "less by arriving at conclusive certainty, than by eliminating the proclivity to easy answers and quick fixes in a complex world."34 More important, the narrative of 12 Angry Men is not resolved - or justice vindi- cated - through the skills of a professional lawyer but through the commonsense judgment and tenacity of the representative charac- ter of Henry Fonda.35 But what might happen if Fonda's iconic character were not available to represent an innocent defendant, as in Young Mr. Lincoln, or to stop the rush to convict, as in 12 Angry Men? Arguably, Alfred Hitchcock's The Wrong Man asks these ques- tions. Here, a character played by Fonda himself desperately needs a savior, but no human agent, not even a thoroughly dedi- cated defense attorney, seems of much help. The Wrong Man, with its images of entrapment and despair, falls within the cycle of film noir that came to dominate motion picture making about "things legal" during the 1940s and 1950s. The cycle of noir films contains so many texts with legal themes, in fact, that it seems possible to identify a subcycle that I call "law noir."36 Law noirs portray defense attorneys in a number of ways. Updating the mouthpiece genre, Force of Evil (1948) pictures Joe Morse (John Garfield) as a complex, conflicted lawyer who, by faithfully representing the interests of his mobster client, unwit- tingly sets in motion the sinister forces that kill the brother he is trying to help.37 Other law noir defense attorneys seem amoral cynics. Kingsley Willis (Stanley Ridges), who is hailed as "the best defense lawyer in the country," accepts his usual high fee to defend the title character (Barbara Stanwyck) in The File on Thelma Jordan (1949). "The world is full of innocent lambs, and I'm their lawyer," Willis assures Thelma. A jury acquits her, though she is - since this is a law noir - later revealed to have conspired to kill her wealthy aunt.38 In Angel Face (1952), Diane Tremayne (Jean Simmons), unlike Thelma Jordan, willingly admits that she is guilty of murder. But Frank Barren (Leon Ames), her attorney, refuses to let her confess this "truth." Truth is "what the jury decides," Barren tells her, and he orchestrates a courtroom narra- tive that ends with a verdict of "not guilty."39 If Kingsley Willis and Frank Barrett exhibit a world-weary cynicism, defense lawyer Andy Morton (Humphrey Bogart) in Knock on Any Door (1949) may not be cynical enough. A fervent civil libertarian who jeopardizes his reputation to defend a vicious punk, Nick ("Pretty Boy") Romano (John Derek), against a murder charge, Morton conducts a passionate, skillful defense.40 This law noir denies the audience a clear view of who committed the crime for which Romano is on trial, and its narrative encourages viewers to identify with the defense attorney and his handsome, if flawed, young client. Morton pokes numerous holes in the prosecution's case, and a verdict for acquittal seems in the offing.41 But true to his credo of "live fast, die young, leave a good-looking corpse," Nick Romano recklessly insists on taking the witness stand. There, aggressive questioning by the district attorney (George Macready) cracks his fragile psyche, and he ends up confessing his guilt.42 At the end of the trial sequence, a high-angle shot depicts Andy Mor- ton, Romano's once confident defense counsel, as a small, insigni- ficant figure who is dwarfed by the majesty of the presiding judge's bench.43 After investing so much in his representation of Romano, Morton must struggle to place his own personal and professional commitment within a broader legal-moral context. Fonda's defense attorney in The Wrong Man (played by Anthony Quayle) resembles Bogart's Andy Morton, but this law noir shifts the narrative focus away from the defense lawyer to the criminal defendant.44 The Wrong Man represents the ordeal of Manny Balestrero (Fonda), a musician at New York City's swanky Stork Club, who is charged with committing a string of small-time holdups. Piece by piece, coincidence by coincidence, the evidence against Balestrero mounts. Needing money for his wife's dental work, Manny visits a loan office that recently has been robbed by a man who closely resembles him; seeking refuge from the pres- sures of his hardscrabble life, he pretends to play the horses, a hobby that the police mistake for the real thing and a motive for Manny turning to crime; and while writing a sample hold-up note for the police, Manny makes the same grammatical mistake as the stickup man. Eyewitness identifications - the crucial one, as in 12 Angry Men, by a woman who wears glasses - convince the police that Manny is the "right man." The Wrong Man creates the haunting vision of an ordinary per- son trapped within a harsh cityscape and an impersonal legal bureaucracy.45 A shot of Manny descending into New York City's subway system, for example, lacks a complementary one of him emerging from the city's depths. And when Manny does magically appear above ground, on his own doorstep, he is suddenly whisked away by police officers who do not even allow him to talk to his wife, Rose (Vera Miles). The trio rides to the police station in silence, with Manny jammed between two burly officers. Yet the police, in contrast to those in law noirs such as Force of Evil, are not represented as corrupt or mean-spirited. Competent (if uncaring) professionals, they do their job with plodding efficiency. They tell Manny that they are only following "procedure" and that his trip to the station is just a "routine" matter. "An innocent man has nothing to worry about," they assure Manny while persuading him to write the sample holdup note. Once he is booked, the film employs grat- ing sounds and a darkly lit mise-en-scene to represent his isolation. Finally, when Manny is arraigned in a shabby courtroom, a name- less lawyer suddenly pops into the film frame, slinks from a bench, sidles up to his side, enters a plea of innocent, and fails to win a reduction in his bail. The story of The Wrong Man derives additional force because it is Henry Fonda - conspicuously playing against his iconic role as the confident, independent, outlaw hero - who por- trays the helpless victim. By the time Manny finally gets back home, he is too traumatized even to seek legal counsel. Rose must contact Frank O'Connor (Quayle), who agrees to handle Manny's defense and assures the couple that his fee "will take care of itself." The Wrong Man, by representing O'Connor's role in an ambiguous man- ner, offers a narrative in which the role of a defense attorney cannot easily be plotted on any simplistic mouthpiece-versus-virtuous law- yer scale. Recalling an early example of law noir - The Stranger on the Third Floor (1940) - the film assigns the burden of gathering excul- patory evidence to a romantic couple rather than to agents of the legal system. In Stranger, the fiancee of a man falsely accused of murder saves the day by tracking down the real killer herself. But Manny and Rose, trying to locate people who can substantiate his alibi, discover that potential witnesses have either died or disap- peared.46 In time, Rose even begins to doubt Manny's innocence. "How do I know you're not guilty? You don't tell me everything you do," she accuses him. Finally, she suffers a breakdown and must be institutionalized.47 The Wrong Man cuts directly from a shot of the mental institution, in which Rose will reside, to one of the courtroom in which Manny will be tried. The film's trial sequence, like those in the police station, rep- resents the legal process as mind-numbing, bureaucratic routine. As the prosecutor mechanically outlines his case, it increasingly appears as if Manny must be guilty. While sympathetic to Manny's plight and committed to his defense, O'Connor domi- nates his client as completely as the police had done earlier. He, not Manny, first recognizes the psychological toll that this ordeal by legal process has taken on Rose. And O'Connor's legal repre- sentation seems of little help to Manny and of scant interest to anyone else in the courtroom. As O'Connor is cross-examining one of the state's eyewitnesses, boredom settles over the proceed- ings. Not even Manny's relatives seem attentive to O'Connor's attempt to shake crucial testimony against his client. Then, sud- denly, a juror who is anxious to convict Manny blurts out, "Your Honor. Do we have to sit here and listen to this?" The result is a mistrial. (Ironically, then, Manny's fate turns on the emotions of a juror who behaves much like those whom Henry Fonda confronts in 12 Angry Men.) O'Connor must tell his client that he will have to endure another trial. "Can you make it, Manny?" he asks. Nearly catatonic, Manny seems to need extralegal, perhaps divine, intervention. "I think I could've stood it better if they'd found me guilty," he tells his mother. She suggests prayer, and he retreats to his bedroom to stare at a picture of Jesus. Then, in a highly stylized sequence that breaks with the film's neodocumen- tary mode, a close-up of Manny gradually dissolves into that of another man's face.48 As the camera pulls back, this second man, who resembles Manny, tries to rob a small grocery store but is subdued by the owner. When the holdup man enters a police sta- tion, one of the faceless, by-the-book officers who had earlier arrested Manny notices the similarities between this suspect and the "wrong man." Soon the legal bureaucracy sets Manny free. The film ends abruptly with a written text informing viewers that, after two years in an institution, Rose was also released and that the Balestrero family now lives in Florida. A brief long shot cap- tures four people, supposedly Manny and his family, walking away from the camera and down a street lined with palm trees. Just as students of Hitchcock's films can offer a number of credible, and competing, interpretations of The Wrong Man's enig- matic ending, so can students of law legitimately differ over the film's ambiguous representations of the legal process and of the role of a defense lawyer. In what ways does O'Connor's legal expertise assist Manny's cause? In what ways might a defense attorney's intervention seem irrelevant? And in what ways does the film suggest that even dedicated and well-meaning lawyering may only confuse and immobilize a client already shaken by a nightmarish trip through the legal system?49 Legal-constitutional historians once would have dismissed these kinds of questions as ones for film reviewers assuming the role of legal buffs or for lawyers playing at being film critics. But the claim of legal reelism - and, more broadly, of legal-constitutional studies after the cultural turn - is that readings of mass-mediated imagery should not be separated from readings of other forms of legal representation.50 Paul Kahn's study of Marbury v. Madison, after underscoring "the representative character of law's appear- ance," concludes that law "is a state of mind before it is an order of the state."51 Going further, William Ian Miller's essay on the legal films of Clint Eastwood suggests how legal-reelist narratives can effectively cross-examine the representations of constitutional government and of the rule of law that are constructed in official, state-sanctioned accounts such as court opinions. "Popular cul- ture just might not be all that wrong in its view of a law blind to its mission of keeping an orderly society in accordance with just principles," Miller's piece maintains.52 And Carol Clover's work on trial films argues that any account of the relationship between legal and mass commercial culture should recognize an ongoing process of cross-examination: "[T]he legal system has always drawn on the entertainment system, playing to the spectator in us all," and the entertainment system, in turn, "draws on the legal system, playing to the juror in us all."53 It is in this context, then, in order to underline the cultural dimensions of constitutional his- tory, that I want to suggest one possible way of cross-examining the reel-life cases of Henry Fonda, especially the film version of Gideon's Trumpet, and several other, more traditional representa- tions of the real-life cause of Gideon v. Wainwright.54 To begin, images similar to those appropriate to a law noir such as The Wrong Man could be used to tell the story of Clarence Earl Gideon. A middle-aged ex-convict from Florida, Gideon ima- gines that the Constitution guarantees him an attorney in a crimi- nal case, even if he lacks the money to hire one. After a Florida judge, following state law and the U.S. Supreme Court's decision in Betts v. Brady,55 refuses to appoint a lawyer for Gideon, the defendant ineffectually represents himself during a trial for hav- ing allegedly robbed a pool hall. Found guilty of burglary, Gideon is sentenced to five years in prison. Eventually, the case is appealed to the U.S. Supreme Court, which votes to hear argu- ments on whether or not to overrule Betts v. Brady and to hold that the Constitution requires states to provide indigent defendants with an attorney. The petitioner's brief, from the elite Washington law firm that handled the Gideon case before the High Court, does use noirlike imagery that might be found in a law noir, or in a noir-inspired TV police drama, to portray the relationship between the legal constitutional apparatus of the state and citizens such as Gideon. Only an "experienced lawyer," the petitioner's brief insists, "can possibly know or pursue the technical, elaborate, and sophisti- cated measures which are necessary to assemble and appraise the facts, analyze the law, determine contentions, negotiate the plea, or marshal and present all of the factual and legal considerations" that "make up a criminal defense." The frequency of guilty pleas "suggests that those who are arrested, particularly the penniless and persons who are members of minority groups, are more likely hopelessly to resign themselves to fate than aggressively to act like the defense counsel portrayed on television."56 Here, the brief might even be read, in a cultural context, to be arguing for realign- ing the constitutional law of the state with the "imaginary" justice system represented in commercial mass culture. Justice Hugo Black's opinion, for the Supreme Court, em- ploys similar imagery. This legal text, like many other constitu- tional narratives about criminal procedure cases, pictures "the authority of the state [as] no longer aligned with a comprehensive scheme of justice. Instead, it is aligned against the individual, who must be protected."57 The state spends "vast sums of money to establish machinery to try defendants accused of crime," and it has become an "obvious truth" that lawyers are now "necessities not luxuries," Justice Black's opinion argues.58 Consequently, this account concludes with an order granting Gideon a new trial - one in which he will be represented by a court-appointed lawyer. But in contrast to a law noir narrative such as The Wrong Man, Jus- tice Black's opinion implicitly assumes that a competent, real-life lawyer will provide the expertise needed to realign the legal sys- tem and to protect the rights of indigent defendants such as Gideon. A similar assumption frames another important narrative of the Gideon case: Gideon's Trumpet, Anthony Lewis's journalistic history that appeared only a year after Justice Black's opinion. In Lewis's narrative, however, any trace of noirlike imagery disap- pears. This account begins with Gideon, forgoing the kind of divine intervention that had rescued Manny Balestrero, handwrit- ing his own in forma pauperis petition for the U.S. Supreme Court. Then Lewis's story goes on to detail how Abe Fortas, the prominent Washington, D.C., attorney who was appointed by the Supreme Court to argue Gideon's appeal, mobilizes the resources of his law firm and convinces the Court to overturn Gideon's con- viction and to reverse Betts v. Brady. The book concludes with Gideon returning to court and, with a lawyer representing him, winning an acquittal on the original burglary charge. The emplotment of Gideon's Trumpet, as with that of any other historical account, requires choices in narrative strategy and repre- sentational imagery. Anthony Lewis's decision to represent Gideon's tale in one way invariably suppresses other, equally plau- sible options. Another history, for example, might see the Gideon case as much less dramatic than Lewis's book manages to make it seem. Fortas's role might legitimately be reimagined so as to em- phasize the ways in which his performance, similar to that of Frank O'Connor in The Wrong Man, seems relatively insignificant, in light of "higher" forces, to legal decision-making. An alternative telling of Gideon v. Wainwright, for instance, could portray Fortas's role as less compelling than Gideon's Trumpet constructs it. By 1963, few "reasonable" people favored retaining the rule of Betts v. Brady. Thirty-seven states (though not Florida) and the federal courts had already rejected the Betts approach to providing counsel for indi- gent defendants. Chief Justice Earl Warren had instructed his law clerks to be looking for a petition, such as Gideon's, that could pro- vide the occasion to overturn Betts. During oral argument before the Supreme Court, when an attorney representing Florida starts to argue for retaining the rule of Betts v. Brady, one of the justices asks, "You don't really expect to win this case, do you?" And some years later, Justice Potter Stewart tells Fortas's biographer that "probably no lawyer could have lost that case."59 Thus, much of the drama that Lewis's book imputes to the Gideon case, from a literary-rhetorical perspective, depends on constructing a narrative in which it appears that an apparently irreconcilable moral-legal dilemma might cause Fortas to "lose." Fortas, like virtually every member of the elite bar, wants a Supreme Court ruling overturning Betts v. Brady and guaranteeing all criminal defendants in Gideon's position an attorney. But his primary responsibility, Gideon's Trumpet constantly emphasizes, must be to represent Gideon's own interests, even if this requires an argument that stays within the "special circumstances" dis- course of Betts v. Brady and does not help the justices address broader constitutional issues. Can Fortas negotiate this dilemma? asks Lewis's book. This background structure - which parallels that of most clas- sical Hollywood films, including Young Mr. Lincoln60 - yields a narrative in which Fortas must resolve a conflict that would have confounded a less talented legal defense attorney. Lewis's book details how Fortas and his legal team craft an argument that addresses both Gideon's personal interests and broader constitu- tional values so clearly and compellingly that any "rational" law- yer was bound to be "persuaded" by its force and logic. Lewis's narrative represents the Gideon case, then, as an example of textbook-perfect defense lawyering: dedicated attorneys work within a labyrinthine, but principled, legal arena in which advocates as resourceful as Fortas need not choose between achiev- ing the narrow needs of clients and championing expansive consti- tutional principles. The properly crafted argument can speak simultaneously to the interests of individual litigants and to broader constitutional aspirations. Lewis's book represents the defense law yer, embodied by Abe Fortas, as a "heroic" figure. In contrast to Fonda's young Mr. Lincoln, however, Fortas need not wander the edges of the filmic frame during the trial sequences of Gideon's Trumpet but can confidently operate at the center of the legal arena. Abe Fortas, while remaining inside the legal machinery, can still assume the heroic mantle of Abraham Lincoln because Gideon's Trumpet represents the Gideon case very differently than Young Mr. Lincoln portrays the prosecution of the Clay brothers. In contrast to John Ford's film, Anthony Lewis's book unequivocally celebrates the legal process itself. It emphasizes how Fortas's well trained legal staff and, then, the justices of the Supreme Court recognize the competing interests and values at stake in Gideon's case. The odd couple, Clarence Earl Gideon and Abe Fortas, also play complementary roles: Gideon intuitively imagines he has a right to an attorney, and Fortas translates this intuition into rea- soned, constitutional arguments. His personal legal performance can be represented as meshing smoothly with the workings of the legal system itself. Fortas need not, as did Fonda's youthful Lin- coln (or Raymond Burr's Perry Mason), be represented as stand- ing apart from the day-to-day workings of the legal apparatus.61 Gideon's Trumpet, grounded in the liberal legal culture of the War- ren era, imagines constitutional litigation as a thoroughly rational, entirely principled enterprise. During the late 1970s, producer-actor John Houseman, a legal-reelist celebrity because of his portrayal of the law professor Charles W. Kingsfield in Paper Chase (1973), began to plan a made-for-TV film of Gideon's Trumpet that would feature Henry Fonda.62 Although this drama was to follow the narrative struc- ture and representational economy of Lewis's print version, Fonda's iconic, legal-reelist presence, along with the passage of nearly fifteen years of legal-constitutional history, threatened the cultural meanings that surrounded Gideon's Trumpet and the Supreme Court decision it had so skillfully represented. In this sense, it is interesting to speculate on the casting of Henry Fonda. What role might his representative character play in the drama of Clarence Earl Gideon?63 Why not, for instance, have young Mr. Lincoln become the twentieth-century legal wizard, Abe Fortas? (Fonda's age would not be an insurmountable barrier, since the role of Fortas, who was a youthful fifty-two when he rep- resented Gideon, eventually went to Jose Ferrer, who was not much younger than Fonda.) Or might Fonda cap his legal-reelist career by portraying a member of the Supreme Court? (These parts were assumed by Fonda's Hollywood contemporaries, including Sam Jaffe, Dean Jagger, and Houseman himself, in the scene-stealing role of Chief Justice Earl Warren.) But Fonda's iconic image, it can be argued, simply did not "fit" any of these roles. To have cast Fonda as Fortas or as any of the Supreme Court justices was to risk recalling his earlier roles in legal narratives whose representations of the legal process (and especially of the role of a defense attorney) were at odds with the celebratory mode of Gideon's Trumpet. Fonda's iconic status as the outlaw hero, in other words, could have disrupted the film's nar- rative pattern and representational economy if he had tried to por- tray a legal "insider" such as Fortas, Black, or Warren.64 In addition, any film project based on Anthony Lewis's War- ren era text had to deal with the passage of time. In 1964, Justice Black, Abe Fortas, Lewis, and other celebrants of the Warren Court could confidently place the Gideon case within a cultural constitutional narrative that inexorably moves toward a triumphant conclusion. Decisions such as Gideon v. Wainwright, according to the liberal story frame of justice Black's opinion and of Gideon's Trumpet, represented the legal process at its best: reasoned argu- ments, learned opinions, and progressive policy making. Wise lawyers and Herculean judges, such "grand narratives" imagined,65 could use certain parts of the legal machinery to check potential excesses by other parts. If the prosecutorial arm of the state threat- ened to overwhelm indigent defendants such as Gideon, the legal process itself could provide lawyers who would represent their claims in ways that would guarantee fair trials and social justice.66 The film version of Gideon's Trumpet, in contrast, took shape at the beginning of the Reagan era. The Warren Court was no longer in session; a new constitutional "regime" seemed to be emerging; and there was sharp controversy over decisions, partic- ularly Miranda v. Arizona,67 which had sought to extend the frame work of the Gideon case.68 Popular legal-reelist narratives, especially those such as Dirty Harry (1971) and Death Wish (1974) in the "revenge" genre, were representing constitutional decisions protecting the rights of criminal defendants "as too narrowly con- cerned with wrongful acts rather than evil characters."69 At the same time, lawyers and legal writers still committed to the narra- tives of the Warren era were acknowledging that the day-to-day operation of the criminal justice system seemed to mock the lib- eral imagination of the mid-1960s. A few years after the 1980 release of Gideon's Trumpet, the film, a number of the same legal observers who had participated in the Gideon case - and who had helped to construct the background frame through which so many liberal narratives had initially represented its meanings - participated in several symposia designed to mark the twenty-fifth anniversary of the Supreme Court's decision. Not surprisingly, they expressed scant optimism about the relationship between Supreme Court opinions and the ability of ordinary attorneys to do heroic work on behalf of criminal defendants.70 The promise of the Gideon holding, "that all criminal defendants would eventu- ally receive representation from skilled and adequately funded attorneys," had yet to be realized, Anthony Lewis conceded.71 The 1980 film version of Gideon's Trumpet tries to negotiate this passage-of-time issue in several ways: by anchoring itself as se- curely as possible within the constitutional culture of the Warren era; by trying to avoid any reference to post-1964 perspectives; and, most important, by invoking the iconic image of Henry Fonda to smooth over issues related to the historical contingency of the crim- inal justice system as it had been imagined in Anthony Lewis's view of the Gideon case.72 In contrast to Lewis's book, (Fonda's) Gideon, rather than (Ferrer's) Fortas, seems to center a filmic narrative that looks back, nostalgically, on the era of the Warren Court and on the iconic, legal-reelist image of Henry Fonda.73 Fonda's representative character, who had triumphed, as the outlaw hero, in earlier legal reelist films, prevails again but as a different kind of champion of the underdog in the film version of Gideon's Trumpet. Fonda's portrayal of Gideon can recall his contrasting legal performances in The Grapes of Wrath and The Wrong Man. When Fonda first speaks directly to the camera at the beginning of Gideon's Trumpet, for example, it might seem as if Tom Joad - now an aged, four-time loser to the criminal justice machinery - has returned from the 1930s for one final battle. Fonda's Gideon stub- bornly insists that an ordinary person cannot have a fair trial unless the state provides a lawyer, and he continues to haunt the prison library, in search of legal precedents, much like his Tom Joad had promised to roam the hills of California, in search of jus- tice. The film also draws on Fonda's outlaw image when his char- acter marches defiantly through the prison yard, followed by a crowd of younger prisoners who hope that, by winning his case, Gideon might lead them from bondage to freedom. Yet, at most other times, especially during the lengthy sequence when the camera shows Fonda clumsily trying to conduct his own defense during the initial jury trial, his portrayal of Gideon intertextually invokes his role as Manny Balestrero, another person who becomes dazed and confused when confronting the state's vast legal bureaucracy. The outlaw hero, while still legible in the iconic figure of Henry Fonda, seems as much an anachronism as an inspiration. To improvise on Anthony Lewis's musical metaphor, the "Ghost of Tom Joad" can sound a trumpet, but only the lawyer in the Brooks Brothers suit can conduct a complicated legal constitutional symphony. The film version of Gideon's Trumpet still, however, manages to employ Fonda's iconic image to bring closure to its representation of the results of Supreme Court decisions. Portrayed economically, with few dramatic flourishes, Gideon's second, lawyer-conducted, trial ends amid applause from a diegetic, small-town audience in a swift acquittal. Following the verdict, Fonda's Gideon, as at the beginning of the film, faces the film-viewing audience head-on. And to the question of whether or not he had "accomplished any thing" by his struggle, he responds simply, "Well, I did!" Then the film's final sequence reprises the endings of Young Mr. Lincoln, 12 Angry Men, The Grapes of Wrath, and The Wrong Man: once again, Henry Fonda's iconic character walks away from the camera until he disappears, for the final time, into history.74 As with most representative figures, Fonda's lives on in media res and continues to generate popular re-memberings,75 including those of Gideon v. Wainwright. Within the promotional and "taste-making" commentary that now prepares audiences to view Gideon's Trumpet,76 for instance, this legal-reelist narrative has come to center, more firmly than ever before, on the reel-life image of Henry Fonda rather than on Abe Fortas, the Supreme Court justices, Clarence Earl Gideon, or any of the other real-life participants in the original case. The Museum of Television and Radio, while celebrating Gideon's Trumpet as its "Movie of the Month" for April 1998, featured comments from John J. O'Connor of the New York Times and Tom Shales of the Washington Post that emphasize the iconic performance of Fonda rather than any other aspect of the Gideon case.77 The graphic design package for a recent video edition of Gideon's Trumpet goes even further in its use of Fonda iconogra- phy. An elaborate illustration mixes religious and civic republican imagery to suggest a reading of the filmic narrative that literally elevates Fonda's Gideon above the professionals who work within the legal system. Fonda's representative character, now aged but still majestic, flanked by two U.S. flags, looms above a stylized courtroom scene. This iconic image gazes downward, much as one of Tom Joad or Abraham Lincoln might do, presumably judg- ing whether or not the defense lawyer and the other participants in the legal system are pursuing the cause of justice.78 The case of Gideon v. Wainwright, as it is now being represented in popular legal-cultural imagery, can easily appear to be the cause of (the iconic) Henry Fonda .79 |
