Written by guest blogger Judge McGahey
Movies like to blend fantasy with fiction. “Based on a true story” or “based on real events” are phrases used to give a film legitimacy or authenticity. The trouble is figuring out exactly where the facts end and the fiction starts. For example, Young Mr. Lincoln features a real person and contains kernels of truth (Lincoln’s stepmother encouraged him to read, he was a lawyer in Springfield, he was known for quirky humor, etc.) but embellishes other events or makes them up entirely. Judgment at Nuremberg is another example: there were, in fact, war crimes trials held after World War II in that German city, but the movie itself is pure fiction. This month’s movie, Murder in the First, offers another example of this kind of melding. It tells us it’s “inspired by a true story,” but, it turns out, not so much.
Starring Kevin Bacon and Christian Slater, the movie was released in 1995. It tells the story of Henri Young (Bacon), a 17-year-old orphan who steals five dollars from a store during the Depression to feed himself and his sister. Unfortunately for Young, the store also had a post office in it and he’s prosecuted in the federal system, ending up at Leavenworth. He’s later transferred to Alcatraz—“The Rock”—where he and two other prisoners try to escape. The escape fails due to another prisoner’s betrayal. Alcatraz’s sadistic warden (Gary Oldman) tortures Young and throws him into solitary for three years. Not surprisingly, Young loses his marbles. After being put back into the general prison population, he attacks his betrayer with a spoon in the cafeteria (where else?) and kills him. Put on trial for murder, Young’s lawyer, an inexperienced P.D. played by Slater, decides to defend Young by putting the prison system, Alcatraz, and the warden on trial, asking the jury to find that Young’s treatment turned him into a killer. The trial turns into a political circus, replete with shouting, surprise testimony, an overbearing judge who tweaks the evidence to help the prosecution, etc. Eventually, the jury finds Young guilty of involuntary manslaughter, but also returns a “verdict” against the warden and suggests an investigation of Alcatraz. Before Young can be transferred to another prison, he’s (mysteriously) found dead in his cell. A voiceover at the end tells us the warden was convicted of prisoner abuse and that Young’s conviction caused Alcatraz’s underground cells to be closed.
But how much of this is true? Well some of it, but not much. There really was a Henri Young, but he wasn’t the innocent played by Bacon. He was, in fact an experienced criminal, who’d been convicted of bank robbery (not a five-dollar theft) and had committed a murder in 1933. He’d previously spent time in state prisons for burglary and robbery and also in other federal facilities before being transferred to Alcatraz because he was an incorrigible prisoner. Young did kill another prisoner at Alcatraz, but in their book Reel Justice, Paul Bergman and Michael Asimow suggest it was “likely the result of a lover’s quarrel.” The murder took place in the prison laundry and Young used a knife. How long Young was actually in solitary can’t be confirmed, since no records currently exist, although contemporary newspaper accounts do reference the three-year claim. Young never served time in Alcatraz’s underground cells, since they were closed before he got there. It’s unlikely Young really was represented by a “Public Defender,” since that system didn’t become common at the state level until after Gideon v. Wainwright. Perhaps most interestingly, Young didn’t die in Alcatraz. He was transferred to the federal medical facility in Springfield, Missouri in 1954 and, after finishing his federal sentence, was then transferred to a state penitentiary in Washington to serve a life sentence for that 1933 murder. He was released on parole in 1972—and promptly disappeared, never to be seen again. If he’s still with us, he’d be ninety-six years old.
As you can see, this movie’s claim to be “inspired by a true story” is a serious stretch. Nonetheless, it’s interesting to watch and certainly brings to mind the current concerns about the effects of long-term solitary confinement on prisoners, an issue of particular significance in my home state of Colorado after the murder of Department of Corrections head Tom Clements by a paroled prisoner who spent substantial time in solitary. (Clements’ successor, Rick Raemisch, had himself placed in “ad seg” for twenty hours. If you haven’t read his story, you absolutely should. It can be found in The New York Times for February 20, 2014.)
As trial lawyers, we like believe that trials are the best way to bring the truth out of conflicting stories. Helping fact finders discern the truth is perhaps our most important goal as advocates. Every one of us has seen examples of truth that’s stranger than fiction. But sometimes the real problem is telling the difference between the two—and Murder in the First is a perfect example.
The National Institute for Trial Advocacy Awards recognize outstanding work by our family of Program Directors, Team Leaders, faculty, and staff. These people contribute to NITA by working on Public Programs, Custom Programs, and Public Service Programs. They are authors, teachers, and innovators.
NITA’s work in 2013 generated the largest number of nominations in some years, and the NITA Awards Committee struggled to make choices from an array of highly qualified NITA advocates. This year’s Awards Committee was comprised of Mark Caldwell (NITA staff and committee chair), John Baker (2012 Oliphant awardee), Barbara Barron (2012 Marshall awardee), Jim Gailey (2012 Keeton awardee), Nancy Vaidik (Program Director), and L.C. Wright (NITA Board). The committee considered all of the nominations and made its recommendations to Executive Director, Karen Lockwood, for her final selection.
The three awards—the Robert Keeton Award for NITA teaching, the Robert Oliphant Award for outstanding service to NITA, and the Prentice Marshall Faculty Award for the innovation—each are named after one of the pioneers of NITA who exemplified the nature of the specific award.
The recipients of the 2013 awards are:
Robert Keeton Award for Outstanding Service as a NITA Faculty Member (recognizing exceptional work as a NITA faculty member):
Ben B. Rubinowitz, Partner, Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz. In considering his nomination, it was recognized that “Ben is a ‘best’ teacher and deserves the best teacher award.” He began teaching early in his career, and has contributed to new and evolving methods, such as “drills” and the drill room. He lectures in the same persona that he presents to a jury—a consummate role model.
Elizabeth J. Sher, Partner, Day Pitney LLP. Throughout comments nominating her, Beth’s lasting teaching contributions to NITA include accolades such as, “Beth has dedicated herself to teaching, program directing, and team leading.” “She is the consummate faculty member, always prepared and on time, willing and ably delivering lectures as well. She shares ideas, thinks carefully about the program and how to make it better.” “Collaborative, supportive, and—most importantly—a great teacher, she is always loved by participants.”
Robert Oliphant Award for Outstanding Service to NITA (recognizing service to NITA through program administration, volunteer service, and other participation that enhances NITA’s Mission):
Daniel E. Toomey, Duane Morris LLP. Paraphrasing from his nominations, “Dan has not limited his NITA service to being Program Director and Team Leader of the DC Trial Program. Rather, he has participated as faculty at many programs, including National, Southeast Regional, Building Trial Skills—Florida, Teacher Training at Harvard (under Urban Lester and Sandy Brook), Teacher Program at USF Law School (under Mike Kelly), DC Deposition (under Don Green and Dick Leighton), and Philadelphia Deposition (under Lou Natali and recently Hayes Hunt). He continues to regularly teach in the program he led for over 20 years, the Building Trial Skills: DC Program. In 2010, Dan was selected to the NITA Faculty for Belfast, Northern Ireland. Dan has also directed and been a faculty member on in-house programs during his almost 38 years of service to NITA. Dan continues as an ‘apostle’ for NITA through his instrumental work setting up the D.C. Advanced Trial Program and—just last month—the first off-shore public program, the San Juan, Puerto Rico Trial Skills program (with Ken Suria, Esq., of San Juan, P.R.).”
Prentice Marshall Faculty Award for the Development of Innovative Teaching Methods with NITA (recognizing creativity in program development or teaching methodology):
James L. McCrystal, Brzytwa, Quick & McCrystal LLC. Mr. McCrystal’s dedicated imagination and craft creating constant innovations in NITA’s Deposition Skills Programs have brought improvements to both program structure and teaching methods. His efforts in public service and assistance in leading newly created programs, most recently the San Juan Puerto Rico Trial program, demonstrate his creativity and service to the organization.
The NITA family is filled with exceptional people who regularly do exceptional things. In 2014, we recognize these four special people for all they have done for NITA through the years. We know they will continue to contribute, always in energetic and imaginative ways.
Please join us in thanking them, and extend your congratulations.
Here are some terms popular now in legal blogs, the legal press, and other purveyors of lawyers’ tools to understand the business of our profession better. (No judgment here – my greatest obsession is to achieve such wisdom.)
Pause!! Let August recharge your individuality with “real person” activities. Here are some to consider:
OK, these are not too exciting. That’s why I am starting a contest to share good and better ideas. What are your best “do-able” ways to see different ways of life. To spend time with people who are simply not thinking of topics that keep your attention. To replenish the human in you. To hear and consider how other people are thinking, what they are worrying about, what news headlines are important to them, what they think about these times and their troubles.
In short, how will you use August to deepen your humanity? To broaden your capacity to know how people think who are not at all like you.
In this, you also find your greatest capacity to excel as a trial lawyer. We lawyers need to be real. We need to know how the jury’s gut and heart inform their judgment. What they fear. How they reason. We need to be in their world. Happily, these qualities of a great trial lawyer are acquired by knowing and grooming your own humanity.
So, every week in August include a bit of reality training! Share with us what you are going to do. You might win!
Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy
written by guest blogger and NITA faculty member Nancy Hathaway
New lawyers want to know how to prevent surprises. My answer is: you cannot prepare away surprises at trial and you must prepare away surprises at trial. Nothing can stop a witness from suddenly forgetting or “forgetting.” But a comfort with the record makes those surprises manageable, even fun.
Once, I was litigating a temporary custody hearing in which a mother hid her children in an attic, sat on the inside steps armed with two kitchen knives, and refused to let the DCF worker and eight police officers into her home to remove her children. My theory of the case was that the mother never threatened her children with harm and overreacted to the police out of panic and fear. As I cross-examined the DCF worker, he went for it. He testified that the mother, from those inside steps, yelled, “If you come inside, I’m going to kill my children.”
Time stood still.
I knew he was freestyling with the truth. I knew it because I had a DCF investigation report, an assessment report, a police report, and the DCF worker’s dictation, none of which mentioned this rather dramatic allegation. I knew it because I was prepared. It was time for Commit, Credit, Confront.
First, the Commit: “It’s your testimony that Ms. X yelled, ‘If you come inside, I’m going to kill my children’?” He answered yes, and looked a little nervous.
Second, the Credit. I started with the DCF investigation report. I took my sweet time. “You’re required to make a report of the results of your investigation. Required by law. Required as part of your job. You’re an investigator. You make these reports all the time. In a way, this is your whole job, investigating and making investigation reports. It’s important that those reports are accurate. That they contain all of the important information. Your supervisor relies on them. The District Attorney relies on them. They’re not reports about store inventory or mileage. They’re reports about the safety of children. Decisions are made about whether children remain with their families, based on your investigation reports. Decisions are made about whether children are safe. You investigate allegations that children are being abused or neglected. If there is an important piece of information about whether children are safe, you include it in your investigation reports. If a parent threatened to kill her children, that is the sort of information that would be important to include in a DCF investigation report.” Well, yes, yes, yes.
By the time I was done getting a series of yeses out of the witness, that document was the Holy Grail. Or, as I said when training public defenders in my home state of New Jersey, I had Bedazzled that report until it glittered. That report was now important, reliable, accurate—and flatly contradicted the witness’s lying testimony. But I’m getting ahead of myself.
Last, the Confrontation: I showed the investigation report to all counsel, asked to approach, and showed it to the witness. I asked the witness to identify the document. I then asked the witness to read through the document, and show me where it said that the mother had yelled, “If you come inside, I’m going to kill my children.” I told him to take his time. And I stepped back to wait. It wasn’t there. He had to testify that it wasn’t there.
I then went through this process with each of the remaining documents the witness had authored. By the end, I felt like Perry Mason and the witness looked like a liar.
When an adverse witness lies, you may not see it coming. But if you are prepared—you know your record and your impeachment choreography—you will know how to dismantle that witness’s credibility, and have fun doing so.
The following is an excerpt from NITA’s book Effective Expert Testimony, 3rd edition, written by David Malone and Paul J, Zwier. This book is available in print, ePub (iPad, Kobo, Nook, Sony) and Mobi (Kindle) formats.
Control Techniques for the “Run-On” Witness