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Tuesday, February 27, 2018



To me the movie is important for three reasons.

First, recognizing that we are today near the end of Black History Month—this film finally brings to light an episode in the career of a heroic American. 

Thurgood Marshall was the first African-American Supreme Court Justice (appointed, 1967). As counsel for the NAACP, he had argued many cases before the Court, including the landmark case that ordered desegregation of public schools, Brown v. Board of Education (1954)

This film involves his early legal career as a trial lawyer for the NAACP, when he was traveling the country defending black people accused of crimes for which they might easily be wrongly convicted and executed if not summarily lynched along ... with their lawyer.

Second, this was a rape case in which the defense went to great lengths to challenge the alleged victim’s veracity, cross-examining her intensively, challenging her story, and urging that in fact she had been the aggressor in the sexual encounter and had made up the rape charge to save her reputation.

The alleged victim was a wealthy white woman for whom the black defendant, Joseph Spell, worked as chauffeur and house servant, in Greenwich Connecticut, 1940. She claimed that while her husband was away, Spell raped her, kidnapped her for ransom. She then escaped from him and jumped into a river. She waved to a motorist for help and was taken to police, dressed only in a slip. A doctor concluded her injuries were “consistent” with her claim of rape by a Negro. In fact, he found, “colored skin” under her nails.

Spell at first denied all charges. Then he changed his story to claim consent. He claimed the woman was depressed about her abusive husband and he comforted her. This led to a night of sex, after which she panicked, fearing discovery of their tryst. They went riding around in her car and she became frantic, ranting that she might become pregnant with his child. He couldn’t quiet her. She ran from the car and jumped from a bridge into the river. He drove away, frightened.

In that pre-feminist but paternalistically protective age, the wronged woman insisted that she be believed and vindicated by the male judge, prosecutor, and police; but not only because she was a woman, also because she was a Christian, white, and a wealthy member of the upper classes whose honor had been besmirched by a man, a servant, a black man.

The case reminds me of “To Kill A Mockingbird,” a novel in which a white woman accuses a black man of rape and demands to be believed based on that presumption. 

Today, we are warned to believe the victim—that is, any woman claiming sexual assault, abuse, or harassment—to right the wrong of society's traditional censure and disbelief of victims. This case reminds us of the other societal tradition: the misuse of a rape charge as a racial bludgeon.  

In the Spell case, the woman never recanted her charge; the defense argued a lack of corroborating evidence and the illogic of her story. Although Spell admitted lying when he denied any sexual encounter, his explanation—that where he came from (Louisiana) any sex with a white woman was a lynching offense—rang true to the northern jury (that included a southern white woman who had left that corrupt society and was elected foreperson).

The third interesting element for me is the distortion of the truth, the whole truth and nothing but the truth of the historic event for the purposes of the drama. The usual license is taken with chronology of events, insertion of action and dialogue to emphasize a point or dial up the conflict. These are expected and necessary in a drama “based on a true story” that is to be shown in feature length.

But when a central character, a person who lived, who has a reputation and exists in the memory of his peers and descendants, is depicted in a way that is almost a slander of his character for the purposes of hyping up the drama, then it is for me an issue.

In the movie, the young Thurgood Marshall is sent by the NAACP to Greenwich to defend Spell. He needs a local member of the bar to sponsor him as co-counsel in the case. He is directed to Samuel Friedman, who is in partnership with his young brother, Irwin, who is shown to be friendly with the local but tiny NAACP chapter.

Sam is depicted as an inexperienced lawyer who defends an insurance company, successfully denying a claim of a wheelchair bound victim. He gets a pat on the back from the corporate client, promising more lucrative cases. Thus, when approached to join the defense of this unpopular client, the cinema Friedman stammers and all but falls into a faint.

Friedman is played by Josh Gad, an actor whose appearance recalls Jason Alexander or Stephen Furst aka “Flounder”. He is no match for the forceful super-heroism of Marshall, as played by Chadwick Bozeman, (Jackie Robinson, James Brown, and now starring as The Black Panther.)

When the imperious and clearly racist and anti-Semitic judge (played with appropriate snarls by James Cromwell) refuses to allow Marshall to speak at all as counsel, Friedman is alone, with Marshall feeding him courage pills, whispered cues, orders. Marsjhall is shown manipulating the client to satisfy the demands of the larger issues when conflicting with the defendant’s interests. At one point when Marshall is called away for a phone call, Friedman is shown as lost in confusion, staring wistfully at the door, unable to form a question to a witness. When Marshall must leave before final argument, he is shown to give Friedman the exact words and phrases he must use in order to win.

Friedman is shown to be timid at first, afraid to offend the judge, the prosecutor, his wife, others in his synagogue and community. As he gets into the case and Marshall gets into his ear like a guiding angel, he finds his voice. After he is beaten by thugs one night (an invention for dramatic effect) he stands taller.

He is proud when the jury forewoman announces the not guilty verdict and he receives the thanks of his client, who of course asks after Mr. Marshall, who has gone to Mississippi to defend another innocent man.

Michael Koskoff, a Bridgeport, Conn. lawyer, is given co-writer credit with his son, Irwin, a screenwriter. Koskoff knew the Friedmans and befriended Sam Friedman’s daughter, who has a theatrical background and helped in the process of getting it to the screen.

They claim to have thoroughly researched the case before writing. Perhaps. The trial was extensively covered in the local and national press. Apparently there was no trial transcript so they had to construct the testimony from their imaginations and by reference to the news reports.

In an interview for Connecticut Jewish Ledger in 2016, Michael Koskoff was full of praise for Sam Friedman and his courage and friendship with Thurgood Marshall. But Koskoff apparently didn’t do his research. He says that Friedman entered law practice "in 1936" and thus was inexperienced in trials.

Roger Friedman, a long time movie critic and coincidentally a grandnephew of Samuel Friedman, in reviewing the movie notes that Sam began law practice in 1926, not ’36. Thus by 1940 he was greatly experienced in trial practice, though not criminal cases. The lack of criminal trial experience would be of concern in such a serious matter, but an experienced civil trial lawyer could get up to speed quickly. The skills of preparation, examination, cross-exam, argument are very similar. 

In fact, it seems that Sam Friedman did not need to be spoon fed the questions or tactics. Daniel Sharfstein, writing about the case in Legal Affairs Magazine, in 2005, notes, that Friedman was an experienced lawyer with a reputation as “a tenacious advocate with a flair for courtroom drama.” 

Sharfstein who viewed a video of Friedman speaking to another lawyer about the trial, writes:
At trial, Friedman questioned witnesses while Marshall, satisfied with his co-counsel's performance, took notes from the second chair.

During his two-day cross-examination of Strubing, Friedman combed through her story for discrepancies until she lost her temper. Once he'd shaken her out of the role of helpless victim, Friedman guided her back through her testimony.

Why hadn't she called out to the policeman who stopped Spell? Friedman tied a handkerchief over his mouth, and asked Strubing if Spell had similarly gagged her. She said yes. Later, the lawyer retied the handkerchief as tight as he could and tested Strubing's claim that she could not make a sound. "I let out a shriek," he recalled. "The jurors almost jumped out of their seats!" 

Friedman skewered Strubing's "fantastic story" and "evasive answers"—"her resort to tears, her antics on the stand, her resort to every possible trick in the cards."

But looking at the all-white jury, he knew that discrediting Strubing was too risky. He had to offer the jury a way to affirm Strubing's social standing and still acquit Spell.

In a move that the Baltimore Afro-American described as "brilliant," Friedman appropriated the prosecution's rhetoric, explaining how he overcame his own doubts to believe in Spell's innocence.

"They had this improper relationship all through the night. Joseph sees nothing wrong in it. The formality of marriage and divorce means nothing to him," Friedman argued.

"But not to Mrs. Strubing. She has moral fiber and dignity. . . . She knows she has done wrong." Strubing had plunged into the water with thoughts of killing herself, Friedman surmised. "But as soon as she hit the water she was a changed woman. She was a good swimmer and she simply couldn't drown."
Otherwise, the screenplay is salted with a few beats that ring true to me as criminal defense lawyer. For one, the judge’s bias is evident as his rulings favor the prosecution. He permits the DA to present hearsay, but sustains his objection to the defense eliciting hearsay.

Also familiar, the defendant withholds facts from his lawyers, and the dilemma of a tempting plea offer to one who maintains innocence but fears the system. 

But the writing of the cross-examination of the victim is awful. Friedman is depicted as doing all the wrong things: asking the leading, “I put it to you, madam. . .” accusations that make me shudder. 

As Friedman explained in his interview, supra, he confronted her with all the inconsistencies in her story, the absence of corroborating evidence, the contradictory facts and elicited her arrogant and increasingly thin answers. He left the argumentative points to . . . final argument.

Thurgood Marshall remains a heroic figure, and like John Adams and Abraham Lincoln, he is an icon in the history of American criminal defense advocates. But as one movie critic observed, he deserves a better biopic.

As for Sam Friedman, he was—contrary to the inference left by the start of this movie—a conscientious advocate for civil liberties and a supporter of the NAACP. I can be permitted to feel a certain amount of pride in the fact that he was a Jew who contributed to a just cause, especially at a time when Jews were being victimized by race prejudice at home and around the world.

Friedman was only one of many Jewish lawyers who took great risks to defend unpopular clients such as Joseph Spell. 

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