Lights, Camera ,,, Your Witness

I spent the weekend watching aspiring film makers do their thing. There were some actors, a camera operator, a few others who helped with the sound, production, props, and the all-important food breaks.

I was particularly interested in the young guy who was directing the piece. While the others were responsible for their particular roles, each came to him to make the final choices about all the details that seemed to be critical to the success of the project. Though there were suggestions and alternatives offered from all sides, his was the final word each time. Even for a one day "shoot" of an 8 page script on a mini budget, he had to make decisions about almost every aspect of the work. I couldn’t help comparing his job to mine.

Every case, especially those that come to a trial, involves hundreds of similar decisions. A "story" has to be told, usually a mystery. Sometimes a whodunnit, or why, or how, but always some riddle that has to be decided. On occasion, the trial becomes a thriller or a comedy and almost all criminal cases have elements of tragedy.

The lawyer is performing, orchestrating by his questions, his arguments — molding a "script" for his audience. Where should the emphasis be placed? How should the scenes be set? It is a performance that demands a certain amount of "craft."
But there are certainly differences.

For one, the director of the film can shoot his scenes in alternative versions and then edit at leisure to tailor his story. The performance of the trial is more akin to a "live" show. The lawyer has to edit on the fly, if at all, by trying to keep out "bad" evidence, to prevent blurted deviations from his theme.

Rarely, the lawyer gets a "do over" when there is a mistrial, a hung jury. Then the drama has to be played out again, with the handy "script" that we call a "transcript," the record of the previous testimony. With the surprise now gone, these shows tend to be anti-climactic and dull, at least for the lawyers. That is, until one of the lawyers decides to "edit" by presenting different or additional witnesses.

Or, as sometimes happens, a witness decides to be creative by improvising new answers to the questions previously asked. That gets to be fun.

The lawyer has one advantage over the film director. He has only to please an audience of 12. But he picks them from among a large pool of unwilling applicants. The director is at the mercy of a random audience which he cannot choose, except by advertising his production in order to entice a favorable pool.

As I watched the director coaching his actors to produce the greatest impact for each scene, I found myself imagining how nice it would be to be able to "coach" witnesses and clients in a criminal trial. Coaching witnesses is supposed to be a no-no, because it implies feeding them lines, but some lawyers find it impossible not to do it.

I’ve never been able to bring myself to do it. Maybe I don’t want to win badly enough — its probably a character flaw. But I just always have the nightmare that if I tried it, my client or witness would mess up and blurt out, "Well, that’s what the lawyer told me to say!"

I’ve caught prosecution witnesses that way on occasion and it is not a pretty sight.
I have had the miserable experience of hearing my client tell a completely different version of the "facts" on the witness stand than the one he told me was the "truth" when I interviewed him. I looked down at my notes of the interview and listened to this new "story," felt the beads of sweat drip in my armpits, and asked "What happened next?" trying to sound to the jury as if I really knew what he was going to say.

That must be how the actors and director feel when Robin Williams or Robert De Niro begin to "wing it" during filming, except that the director can yell "cut" and the result is almost always more entertaining than the original lines.

My client wasn’t as entertaining, at least not to me. But then again, the D.A., judge, and the jury were laughing.

Questions About "Capote" and "In Cold Blood"

After viewing the DVD of last year's movie, "Capote," I was impelled to re-view Richard Brooks' movie of Capote's famous "non-fiction novel," "In Cold Blood." Apart from their merits as art or entertainment, I was reminded of the the power of film to crystallize issues or to distort them.

The best art / entertainment forces us to question our assumptions without lecturing or boring us with its answers. I was left with many questions. Here they are, with some of my personal thoughts, not meant to be definitive answers.

Would Perry Smith, the primary focus of Capote’s book and the movies based on it, be given the death penalty today?
His crimes certainly fit within the category of those which merit it — brutal and senseless executions of 4 innocent, helpless people in their home.

But "heinous" or "shocking" crimes do not lead intevitably to death verdicts. I know of similar, and even “worse,” crimes for which juries refused to order death. I could cite other cases in which juries voted death for crimes that were far less "heinous" than those.

What makes the difference?
No one really knows. There are too many variables to count. The skill and attitude of all parties - police, families, witnesses, judges, prosecutors, defense lawyers, jurors, investigators, experts. Money and time available to prepare. Degree of publicity. Politics. Religion. Ambition. Integrity.

Then there are unknowns, random factors that no one could foresee, but which often determine the choice. The way the defendant looks to a juror, whether a lawyer or witness is likeable, how jurors relate to each other ... and a thousand other imponderables that no one has figured out.
In practice, there are so many variables involved that it is impossible to predict an outcome. All we can say for sure is that system operates in a chaotic and capricious way.

Even in Kansas at the time the events occurred, opinions were apparently divided. According to the Lawrence, Kansas Journal-World, April 6, 2005 , most in the community of Holcomb, Kansas certainly were pleased with the verdict. But not all. Howard Fox, the brother of victim Bonnie Clutter is reported to have publically urged mercy for the killers on Christian principles: “The deed is done, and taking another life cannot change it... Instead, let us forgive as God would have us do ..."

In a recent interview (2004), he is again quoted as saying: "You have to (forgive). Otherwise, you can't live with yourself. (The criminals) should've been put away, of course, but hanging is an old-world way of things."

The same article also noted the ambivalence of Kansans to the death penalty: “Since its beginning, the state of Kansas has swung back and forth in its support of the death penalty. In 1859, when Kansas was still a territory, it passed its first death penalty law. The law was done away with in 1907, reinstated in 1935, again repealed in 1972 and finally reinstated in 1994. The method of execution until 1994 was hanging. After that it became lethal injection.

“Since the law was reinstated, seven men have been sentenced to death in Kansas, but there have been no executions. Their death sentences were thrown in doubt in December 2004, when the Kansas Supreme Court struck down the state's death penalty statute because of problems with how juries consider evidence during the sentencing phase of a capital murder trial ....”

I don’t claim to be an expert on the facts of the Clutter case. Reading a “nonfiction novel,” watching a “docu-drama” movie, and reading news articles on the subject fail to qualify me to reach a verdict, but even a cursory internet surf reveals facts related to the case that, in the least, raises hackles.

For instance:
• The lawyers and jurors all knew (or knew of) and admired the victims before the crimes. Despite that, the appointed defense lawyers did not ask for a change of venue (supposedly advising their clients that local ministers had preached against the death penalty).
• Psychiatric testimony - by today’s standards - was primitive and sketchy. One supposed expert opined that the 31 year old Smith’s “enurisis” (bedwetting) was a characteristic of a serial killer, though there was no evidence of any other muders in Smith’s record.
• Even so, a local psychiatrist testified that Hickock was sane, but he could not be sure about Smith.
• Smith was in thrall of his crime partner, Hickock, described as a con man, who kept urging the unstable Smith to leave no witnesses.
• Smith had won a Bronze Star in the Korean War.
• Smith had a cruel, violent childhood with alcoholism, neglect, abuse, suicide rampant.
• He had expressed remorse, but little effort was apparently put into his defense (the trial took 8 days).
• The alternative of life without parole was not available in 1960 in Kansas.

Would these points — or any one of them — make a difference to an “impartial” jury?
My experience tells me the answer is possibly yes ---
IF these facts were presented through effective lawyering --- urging consideration of not just the circumstances of the crime, but also the background of the defendant, as is required by today’s capital laws.
Then again, none of it might sway a jury, even today. It's a crapshoot.

It seems clearer that, in the atmosphere (and state of the law) of the 1950's, the verdict was probably inevitable. In 1950's rural Kansas, brutal crimes were rare. Today, we are inured to such events.

Should that make a difference in the punishment?
Would (and should) the same crimes in California or New York demand “automatic” death for the culprits?
L.A. had its version in The Manson Cases in the early 1970's, resulting in death verdicts (which were later converted to life after California’s then existing capital law was overturned).

Finally, the movie "Capote" contains chilling moments in which Smith urges the writer to use his book to argue against his imminent execution. Capote is depicted as dissembling, really waiting and hoping for the execution to occur before finishing his book.

If Capote had used his talent to assist Smith, would (or should) that have made a difference?
He was a celebrity and could have marshaled others to make it “a cause.” Around the same time, Caryl Chessman had his supporters in California, including Burt Lancaster and other celebs who actively petititioned the governor to spare his life. That effort failed.

In “Capote,” the author claimed to hate himself for choosing his art and his ambition over his feelings for Smith, whatever they were in truth. He is said to have “believed” that Smith and Hickock deserved to die, despite his empathy for Smith, in whom he saw a tortured soul not unlike his own.

Was it his own self-loathing death wish that impelled the writer’s duality, his actions and inaction?
Was it the need for fame, success, the need for recognition of his genius, his own “just reward.”
Or simply his sense of the best — the most dramatic — ending for his book?
Did the execution provide closure, at least for Capote?

He claimed that the “experience” stayed with him for the rest of his life. But he was notoriously unreliable about his own “truths.” An epilogue reminds us that he never finished another major work and became a hopeless alcoholic. He is mostly remembered in his last years as a silly celebrity a self-parody, famous for being famous.

I can't answer my own questions to my complete satisfaction. I don't know if anyone can. The popularity of movies that intelligently raise the issue (e.g., "Dead Man Walking"), show only that the questions continue to haunt us.