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Volume 48, Number 6 (2001) reprinted by permission of the author and the Law Review THE WRITING AND FILMING OF THE PENALTY PHASE Gale Patrick Hickman* The UCLA Law Review Symposium stimulated me to watch The Penalty Phase for the first time in fifteen years. Although I would love to see it filmed again, in black and white - as I saw it in my mind while writing it - with a different cast and editing, the story seems to hold up. If there is a single point made in this movie, it is found in Judge Hoffman's final ruling, and that point is as valid today as when our ancestors first articulated the rule of law: A judge cannot pick and choose and fashion the law to reach an end he might personally desire. There are rules ... the rules apply to everyone... . Our law protects our freedoms, and it's my duty to apply the law, even when it's painful, even when it's tragic. There are times when we have to pay a price for our liberties."How much of a price?" is, of course, a public question answered daily by thousands of judges and justices across this nation. The process of answering that question frequently leads the trial judge to a small and very private room where he is locked in with only a mirror and his conscience for company. He may exit his room with a ruling that keeps his personal code of honor intact, but there will be a professional price to pay for it: This is a reality expressed in The Penalty Phase during the exchange between Sue Jansen, the prosecutor (Judge Hoffman's election opponent), and Judge Hoffman, after he has informed her and defense counsel he is going to appoint his own investigator to examine the legality of the pivotal search and seizure in the case. Jansen tells him: "[I]n all candor, you're committing suicide." Hoffman counters: "In all candor, Sue [points to his robe], if you're planning on wearing this robe, you'd better be prepared to do the same thing." Hoffman's best buddy, Judge Don Faulkner, thought it out, and, however disloyal to his oath of office, was not prepared to have the public pay the price of letting a mass murderer remain free merely because the police committed the procedural faux pas of conducting an exploratory search before obtaining a search warrant. Faulkner is legally wrong but he is not vulpine. Rather, his is the "morally right" voice we have heard from our United States Supreme Court over the past fifteen years: There's too much of a price to pay for our liberties. Tamara did what most producers don't - she produced. She took the script first to Michael Ovitz at Creative Artists Agency (CAA). To get a script personally into the hands of Michael Ovitz in 1985 was equivalent to hand-delivery of your blueprint for the remake of the Creation to God. As a Hollywood outsider, however, and having no special interest in movies, I had no idea who the big or small players were, so from time to time, as Tamara worked the town for takers, I would ask her an atheistic question: "What ever happened to this Michael Whatshisname, the guy with all the big connections?" And Tamara would scream back into the telephone: "Michael Ovitz! He's Michael Ovitz, you idiot! He's the most important man in this town!" Michael Ovitz forwarded the script to Paul Newman, the first to pass on it. He was followed over the next six months by Robert Redford and a solid list of other actors and directors in the CAA stable. Then one afternoon Tamara called from CBS. She told me she was there with Peter Strauss, the actor, that CBS had given the green light to The Penalty Phase as a Movie of the Week, and that she had talked Tony Richardson into directing. She wanted to know if I would go along with the deal. Since no one had called me an idiot yet that day, I ventured an Ovitzian question: "Who is this Tony Richardson?" Tamara zoomed to Tom Jones4 and did five minutes of Tony's credits, sufficient to convince me that if Tony could not be God, then he was at least God's drinking partner. Then I did an analysis of the issue for Tamara. "Let me see. This is the first script I've ever written. An Emmy Award winner is going to star in the movie; an Oscar and Emmy Award winner is going to direct; I'm going to get paid money for it; I will garner enough points to become a full member of the Writers Guild; and my wife and kids and my cat will have new respect for the guy who takes out the trash and cleans the cat box. And the question is?" So we took the deal. One year and thirteen days after I registered the script for The Penalty Phase at the Writers Guild, we were in The Dalles, which is on the Columbia River in Oregon, about a hundred miles due east of Portland, and we were rolling film. In an as-yet unproduced script of mine called Soft Money (which asks the question "When does a campaign contribution become a bribe?"), an idealistic young lawyer congratulates his father, who has sold his soul in buying a judgeship: "Congratulations, father. You bought it fair and square." The father counters: "Life is just one long plea-bargain, son." Like-wise the process of rewriting a script in Hollywood is a dramatic plea-bargain. On the one hand, the writer dreams each scene he's written will be filmed precisely as he has penned it. On the other hand he must understand that although the director and the actors and the other creative elements of his movie stand on his shoulders, they each have different points of view. The collaboration process with Tony Richardson was painless for two reasons: (1) Tony Richardson, and (2) I had the facts on my side. Tony's roots were in the live theatre and he was also a writer, so I suspect he had a primary respect for the groundwork offered by the script. Not once did he direct me to rewrite a scene. Rather he would ask questions about the content or the purpose of a particular scene, then, his high British voice rising a few notes, he would ask me, "Will you run it through the typewriter one more time?" I found rewriting to be a priceless process. I always came up with a richer and more focused scene and, because I had never done a rewrite before, I was as bemused as Tony to see what that magic typewriter would produce each time around. I saw Tony use the same technique with the actors during the filming. He did not tell them how to perform a scene but would simply ask them to try it again, this time perhaps a bit slower, or softer, or tougher. A truth of the law is also a truth of screenwriting: Control the facts and you control the outcome. I wore a black robe during my day job and I had written a story about a judge, a story not based upon a true incident or a novel but one that was totally my creation. I was the expert on the nuts and bolts of the judging business, so there was never a hint that should I fail to agree to this or that change in the script the producers would bring in another writer who knew more about the subject than I. Nor was such a move on Tony Richardson's game board. In fact he told me he had agreed to direct The Penalty Phase precisely because when he read the script he could tell it was written by someone who knew what he was writing about, from the inside out. With one exception, the changes we made to the script had nothing to do with story or structure but everything to do with casting, which, the amateur writer soon learns, can trump the writing in a heartbeat. Two weeks before filming was to begin, Tamara Asseyev, Peter Strauss, and I met with Tony at his home on Kings Road, off the Sunset Strip. (If one sat in the right chair in Tony's living room, there was a view into a small study/bedroom where, flanked by office clutter, stood Tony's three Oscars and his Emmy. Years later I smiled at the juxtapositional irony when I learned that the previous owner of Tony's place had been another film legend, Linda Lovelace of Deep Throat.5 If that little room could talk ... .) In the middle of our meeting Tony came up with a bit of mischief: Would I be able to restructure the script, essentially from a front-end engine to a rear-end engine? I could see both Peter and Tamara were nonplused but I quickly agreed to give it a try. A moment later, when Tony was occupied with a telephone call, Peter whispered to me with concern: "Gale, with only nine days to do it, how can you commit to restructure the entire script?" "With great bravado," I smiled back at him. Bravado is no substitute for talent, however, and my nine-day product was given the unanimous rejection it deserved. We went with the original structure. We made two casting changes of note, one pivotal, the other comical. The first might be titled "Jonelle, Jesse, Duckworth, and the Deal." The first draft of The Penalty Phase had a generic white male prosecutor named Stu Jansen. The story was not about Stu Jansen and I put nothing subtle into his character. By the time the script got into Tony's hands, however, upon the suggestion of my wife, Gloria, and a friend, Susie Strom, Stu had become Sue Jansen, and I thought the character much more interesting because of the gender change. Tony suggested yet another change for the character at a meeting one day. What do you think about making this district attorney a black woman?" he asked me. "Would the American public believe that?" I reflected that it might be a stretch, but in a handful of cities, such as Los Angeles, New York, San Francisco, or Chicago, a black woman might have advanced to that level of responsibility. "Why not?" I responded. "If it's not today's reality, it soon will be." The black woman Tony had in mind was Jonelle Allen, whom he had directed in The Hotel New Hampshire.6 He wanted CBS to let her play the D.A. role and he wanted another friend, Stuart Duckworth, who had never performed on film before, to play Singleton, the defense attorney. Two weeks later Tony regaled me with his account of his meeting with the power people at CBS. "I told them I wanted Jonelle," he said, "and they kept pulling out all of these photographs of white actresses, telling me how wonderful they were. Finally I had had enough of them, and I called them a bunch of racists, and told them perhaps it was time for my good friend Jesse Jackson to come and have a meeting with them." Proud of himself, Tony chuckled. "So I got Jonelle, and Stuart Duckworth, but I had to make one of those ... what do you call it?" "Plea bargain?" I offered. "Yes," he glowed. "They gave me my two but I had to take this girl, Melissa Gilbert." So Tony got Jonelle, his Angel of Death, and dressed her in black in all of her scenes, while Melissa got to play her first adult role as the judge's research attorney and love interest, which included an attempted seduction scene you would never have seen in Little House on the Prairie7 if it had run a hundred years. Until a few days before filming began, the script had it that Mr. Hunter, the head of the local Citizens for Justice pressure group, would be the one to assassinate the killer, Nolan G. Esherman, after he is freed by Judge Hoffman. The script contained an articulate, well-reasoned and even polite speech for Hunter to deliver to Judge Hoffman as he holds the muzzle of a handgun to Esherman's neck. I did not want Hunter to be an inarticulate redneck. Rather I wanted to have him speak for all the victims and family members of victims whose pain translates the esoteric explanations of the law into so much legal mumbo jumbo. Hunter explains that he understands Judge Hoffman is following the law and admires him for keeping his allegiance to his oath. But, he says, "This is just one of those times where the law asks us, the members of this community, to pay too high a price for the liberties of monsters like Nolan G. Esherman."8 Hunter apologizes to Judge Hoffman for what he must do, then he fires a round into Esherman's neck. Right versus right. An "equal time" speech for the victims. Looking back at the fifteen-year history of the Victims' Rights movement, I thought Hunter's speech was not only timely but necessary to provide balance to all the points of view expressed in the story. So how come it's not in the movie? While Tony and I were turning pages of the script a few days before he left for Oregon to scout locations, he asked me, "Do we have to use this Mr. Hunter to do the shooting?" Sensing change and therefore danger, I tried humor. "He is a hunter after all." Tony thought the name-pun clever enough but not emotionally compelling, so I added Mr. Foxmore, the father of one of the murdered girls, to the front row of the gallery, and had him sit next to his wife and the other mothers of the murdered children. In the revised narrative portion of the script, I described him. "He has the strong jaw and erect posture of a career military man; a tight-lipped man in his early fifties." A casting decision which may or may not have been Tony's killed off Mr. Foxmore as I had written him and replaced him with a 300-pound red-bearded mountain man who looked as if he had just hand-hatcheted several tiny forest creatures for breakfast. He was indeed the inarticulate redneck for whom I had not written my Victims' Rights speech. Moreover, when the shooting of this fellow's big speech began, my writing became his victim. He just could not get beyond a grunt and a stammer. We stopped the cameras and I edited the speech. He tried it again. Same result. I edited again. He tried again. He failed. Tony and I had a sidebar conversation. "Actually," Tony grinned, "I have found in my experience that these violent moments happen quite quickly, you know. Probably no time for much of a speech anyway, don't you think?" So we went with the grunt-and-shoot approach. The Victims Rights folks would have to do without my sympathetic speech. The decision to take the gun out of Mr. Hunter's hand and my speech out of his mouth caused another casualty: no one had bothered to inform Ned Beatty, who had hired on to play Mr. Hunter expressly because he wanted to deliver that speech. When Beatty arrived in Portland the day before his scenes were to be shot, he called for the revised version of the script. Words like amateur and lawsuit were melded into the lasagna of profanity Mr. Beatty layered onto Tamara Asseyev in the resulting telephone call. Tamara, Tony, Peter Strauss, and I took a little meeting to discuss Mr. Beatty's ultimatum: "Give me back my lines and I'll shoot! Or if not I'll sue." Tony's snapshot of Mr. Beatty matched the take the rest of us had on him. Tony mused, "This Beatty seems like he would be a rather cheerless fellow to have around, don't you think?" With Ned Beatty ticketed back to Los Angeles we needed a new Mr. Hunter, and the recasting job was assigned to me and an assistant on the movie, a handsome, recent graduate of the UCLA Film School named Richard Olivier. Tony had introduced Richard's parents, Sir Laurence Olivier and Joan Plowright to each other. Tony let Richard direct one scene of The Penalty Phase and cast him in a bit part as the new boyfriend of Judge Hoffman's ex-lover in the cocktail lounge scene in which Hoffman meets his new lover, Melissa Gilbert. Richard got out a giant book containing photographs and bios of hundreds of actors. We turned the pages until we came to John Harkins, a professional and a gentleman, whom I had seen perform in a production of Our Town.9 He was on an airplane in a few hours, knew the script and his lines on arrival, and was the perfect Mr. Hunter. To most directors a writer on the set during the filming of a motion picture is as welcome as a cockroach on a birthday cake. Nips and tucks must be made to the story after the shooting starts, and the director doesn't need needling from the writer as the stitches are being applied. Not only was Tony undaunted by my presence, he gave me a twinkle-eyed piece of advice. "Actors are children," he smiled. "When they find out the writer is here, they shall seek you out. They will want to know who they really are, and things like that. Feel free to talk to them, coach them, tell them what they want to know. And when they screw it all up, I'll know whom to blame." I avoided becoming involved with the direction of the movie until the last evening I was to be on the set. TV movies are shot on a 7 a.m. to 7 p.m. schedule, six days a week, over a twenty-one-day period. At the end of the shooting on my last day, Peter Strauss asked me to stick around in the courtroom for a few minutes. After all the others had left, Peter asked me to walk him through the second scene on the next day's schedule, the one in which he, as Judge Hoffman, makes his big ruling. I went up to the bench and worked through a reading of Peter's speech, suggesting where and to whom he might look during certain parts of the speech. I thought it imperative for example that he look directly into the eyes of the mothers of the murdered girls when delivering the line: "Our law protects our freedoms, and it's my duty to apply that law, even when it's painful, even when it's tragic." Peter took notes and went off to his preparations. The next morning I was sitting in the jury box when Peter entered the courtroom, his face a mask of resolve. Tony greeted Peter and asked him if he wanted to talk over the first scene on the shoot sheet, a confrontation between Peter and Jonelle Allen. Peter shook his head and told Tony he wanted to go right to the next scene, his ruling, and do that one first. Tony raised one eyebrow, then asked Peter if he would like to discuss that scene. Peter shook his head and motioned over to me. "No need to do that," he said. "Gale and I worked it all out last night." Tony slowly turned to me, both eyebrows now raised, but smiling. "So, we are directing now, are we?" I had been a bad chimp. I gave him my best chimpanzee grin and hoped I had not offended too much. Peter did a first take of his scene. Tony had a private word with him and he took a second pass at it. Weeks later, after Tony and I had watched the first print of the movie, I told him I noticed he had used the second take of Peter's ruling. "Ah, so I did, didn't I?" he laughed. "The take you directed was horrible. Peter is sometimes much too energetic. You had him all pumped up, ready to wrestle a bear. But this is the man upon whom you have visited all burdens and tribulations. By this point in the story he should be worn out, barely able to speak. I liked my direction better." Which is how it should be. I did heap several tons of hot coals upon my hero. The D.A. wants his job, the Concerned Citizens people are after his scalp, the local press wants to take him out of circulation, his judicial cronies want him to shut up until the election is over, and his best friend (Judge Faulkner) throws him out of his house. Finally, Hoffman has to choose between calling Faulkner to the witness stand, knowing Faulkner will have to confess to issuing an illegal search warrant (which will get him at least several slaps on the cheeks from the Commission on Judicial Performance but will take the heat off Hoffman) and suppressing the tainted evidence based upon, as Sue Jansen argues, "the testimony of a harlot and a convicted mass-murderer." His campaign manager takes a powder on him, his son and his court reporter tell him they think he is doing the wrong thing, and even the killer's defense attorney rejects Hoffman's investigation: "Then, your Honor, you try your case and I'll try mine." Thank God I didn't give Judge Hoffman a dog. Hoffman's journey gives new meaning to the term independent judiciary. Independent as in lonely. Independent as in isolated. Independent as in there is something inside this man, a personal code of honor, which forces him to tell Judge Faulkner: "It's just a situation where I'm not going to turn my head." Ken Hoffman has a spiritual kinship with my favorite movie hero, Marshal Will Kane, played by Gary Cooper in High Noon.10 Early in the movie, Will and his bride, Amy (Grace Kelly), have left Hadleyville in a buckboard, heading off to a new life, but with full knowledge that a killer Will put away years before is coming back to Hadleyville on the noon train. As they ride, Will is struggling within himself. He brings the buckboard to a halt and tells Amy he has to go back. "They're making me run. I've never run from anybody before." She pleads with him not to go back. "I've got to," he tells her. "That's the whole thing." An independent and courageous judiciary: for me that's the whole thing. Otherwise, as Judge Hoffman tells Deputy D.A. Sue Jansen in his ruling: "If you keep telling people our system fails when judges do their jobs, then pretty soon they're going to start believing the law doesn't matter anymore. Then there's just fear - and politics." |
