Written by guest blogger Judge McGahey
I was mulling over what movie to use for this month’s review when I heard the startling news about Justice Scalia’s death. Like him or loathe him, Justice Scalia was one of a kind. In addition to being a frequent topic in the blogosphere, he was also the subject of art: an opera (Scalia/Ginsburg) and a play (The Originalist). Those thoughts eventually brought me to the movie for this month’s review: The Magnificent Yankee (MGM, 1950), a sentimental biography of Justice Oliver Wendell Holmes and the only movie I can think of where a real-life justice of the Supreme Court is the subject.
The Magnificent Yankee stars Louis Calhern as Holmes. This movie was Calhern’s only top-billed starring role, although he was a terrific supporting character actor in some excellent films, perhaps most memorably as a crooked lawyer in one of the greatest of films noir, The Asphalt Jungle. Calhern had played Holmes in the Broadway play of The Magnificent Yankee and rumor has it that MGM bought the property for Calhern to star in as a reward for his years as a stellar supporting actor. It was worth it: Calhern was nominated for a Best Actor Oscar for his portrayal of Holmes. The movie also stars Ann Harding as Holmes’ wife Fanny, and Eduard Franz as Justice Louis Brandeis.
While the movie devotes some time to Holmes’ career on the Court, the cases he decided, his judicial philosophy, and especially his crusty persona, the sentimental subtext of the movie is about how Holmes related to and treated his law clerks. Holmes and his wife had no children, and the movie advances the thought that the law clerks filled that void. Indeed, when this movie was released in England, it was re-titled The Man with 100 Sons.
The real Justice Holmes was one of the towering figures in American Jurisprudence and in the history of the Supreme Court. He was the son of prominent Boston gentry, a graduate of Harvard, a thrice-wounded veteran if the Civil War, a former Chief Justice of the Massachusetts Supreme Court and one of the truly original thinkers and writers in American Constitutional Law. Holmes was the great proponent of the doctrine of Legal Realism, best expressed in his famous statement: “The life of the law has not been logic; it has been experience.” Holmes served on the Court for thirty years and retired at age 90, the oldest Justice ever to serve.
Any lawyer worth his or her license should understand Holes and recognize the part he plays in the history of the law in this country. And one can do much worse than to watch – and enjoy – The Magnificent Yankee when it shows up on TV, usually on Turner Classic Movies. Please find it and have fun watching it!
 That Civil War service was so significant to Justice Holmes that he listed it above all other accomplishments on his tombstone in Arlington National Cemetery. The actual tombstone appears in the movie, when Justice Holmes visits his wife’s grave.
Written by guest blogger Judge McGahey
Ray Rice. Adrian Peterson. The issues of domestic violence and child abuse are at the forefront of the news once again, jumping into our consciousness because of high-profile cases involving NFL players. But violence like this is hardly a new phenomenon. For this month’s film I’ve chosen a film from 1931, in black and white, in a foreign language, that is one of the most powerful cinematic statements – if not THE most powerful cinematic statement – about the horrors of child abduction and sexual assault on children. It will chill you to the bone.
M is a German film released in 1931. It was directed by Fritz Lang, one of the all-time great directors. It was Lang’s first sound film. Lang also wrote the script with his wife, Thea Von Harbou. Of all his many movies, M was Lang’s favorite. He stated years later that the story came to him because Germany was plagued by a number of serial killers. However, the subject matter of the movie was not one that the public was happy about. When Lang announced that he would make a movie about this subject, he received death threats and his regular studio refused to allow the film to be made there. Lang would eventually come to the United States after Hitler came to power and would make a number of remarkable films after moving here.
M tells the story of a mentally ill man who abducts, sexually assaults and kills children. We see the pursuit of the killer on two fronts. There is the frantic search by the police authorities, led by Inspector Karl Lohmann. That search leads to a crackdown on the city’s criminal class and that crackdown in turn leads the criminal underground to begin its own parallel search, at the direction of a character known as The Safecracker. The criminals find the killer first and put him on trial before a kangaroo court made up of the criminal underground. I won’t spoil the ending – but it will move you.
The killer is played by Peter Lorre in his first starring role. If you only know Lorre from his slightly silly performances in low-budget horror films of the ‘60’s, his acting here will be a revelation. The anguish of a crazed and obsessed killer is palpable. Watching him during the trial, one can almost feel sorry for him. Almost.
M is filled with images that will disturb and even shock you – but given the time of its making, we see nothing explicit or even very direct. Rather than battering us with the kind of graphic images easily available to us today on the internet and television, Lang instead conveys fear, terror, obsession and loathing by carefully crafted images that leave everything to our imaginations. The power of Lang’s visual language is such that I have seen people weep or cry out in shock or fear while watching M.
Yes, this movie is 83 years old. Yes, it’s in black and white. Yes, it’s in German with subtitles. None of that matters. Watching it will be powerful and unforgettable experience for you. M reminds us that violence against our fellow beings is a scourge that is always with us and is, sadly, nothing new. Every one of us in the legal system sees this every day, no matter where we are: sex assaults on children in criminal, sexual harassment suits in civil, protection orders in domestic, D&N’s in juvenile, abuse of the elderly in probate. The maltreatment of human beings by other human beings is a constant thread in our work. But our knowledge of that sad, frightening thread should remind us that we, as a society can do better.
And we must do better.
 Among other movies, Lang also directed Metropolis, a silent film about a future society and its relationship to robots, found on every list of movie classics and a must for all sci-fi fans.
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.
Written by guest blogger Judge McGahey
Have you ever tried to unkink a hose that’s been lying around in the yard all winter? Or tried to get through a big plate of spaghetti when the noodles are all twisted together? Or sorted through a huge box of family photographs that have been sitting in a basement shelf for years? Those are the kinds of images that went through my head when, after a conversation with a co-worker, I renewed my acquaintance with 1990’s Presumed Innocent. I didn’t remember how convoluted and complicated the plot was—and how much fun it was to try tounravel it.
Harrison Ford stars as Rusty Sabich, a prosecuting attorney. He is tasked with leading an investigation into the rape and murder of another prosecutor, Carolyn Polhemus, played by Greta Scacchi. Rusty has one problem, though: the married Rusty had had an affair with Carolyn, who’d dumped him after she decided that he couldn’t help her move ahead in her career. Rusty manipulates the investigation, hoping to keep his role quiet. But then another problem arises: Rusty’s boss (Brian Dennehey) loses an election and the new DA, aided by a cop who’s not Rusty’s friend, finds evidence that points to Rusty as the killer. Knowing he’s in a jam, Rusty hires Sandy Stern (Raul Julia), a leading criminal defense lawyer, to help him. Eventually, the case goes to trial, with an upright judge, some missing evidence, a twist in the forensic evidence, a little perjury, etc. After all of that, the murderer is revealed—but that’s just another kink in the hose.
Even with all of the switchbacks, plot twists, and “wait a minute” moments, this movie is a real treat. It will keep you guessing right until the very end—and the end may not be something that you like very much. The acting is first class, and Alan Pakula’s direction is top notch. In 2008, Presumed Innocent was picked as number 11 on the ABA’s list of the 25 Greatest Legal Movies, and that’s high praise indeed.
Scott Turow was a creative writing fellow at Stanford when he decided to go to law school. After graduating from Harvard, he joined the U.S. Attorney’s office in Chicago, prosecuting cases involving government corruption. He then returned to writing. In 1987, his book Presumed Innocent came out, and after that Turow continued to publish exciting, believable thrillers with legal settings. (Two others were turned into movies.) He continues to practice law, doing mostly pro bono work.
This is one that I’d sort of forgotten, but one I was glad to discover again.
Written by guest blogger Judge McGahey
You knew I’d get to A Few Good Men eventually, didn’t you? Yes, it’s best remembered for Jack Nicholson’s famous line, but this movie has much else to recommend it.
The film revolves around the court martial of two Marines, Dawson and Downey, for allegedly murdering Santiago, a fellow Marine. Santiago was an ineffective soldier and during the investigation, Lt. Commander Galloway (Demi Moore) begins to suspect that Santiago was the victim of a “Code Red,” an unofficial punishment either directly or tacitly ordered by Santiago’s commanding officer, Colonel Jessup (Nicholson).
Although Galloway wants to represent Dawson and Downey, their defense is instead assigned to Lt. Kaffee, played by Tom Cruise. Kaffee is hardly a paragon of lawyerly behavior: he’s lazy, hedonistic, doesn’t take his job seriously, and prefers plea bargains to trials. In his representation of Dawson and Downey, he initially cuts a deal with the prosecutor, Captain Ross (Kevin Bacon), but his clients turn it down, forcing Kaffee to take the case forward to trial.
Through numerous twists and turns, Kaffee eventually discovers the truth—although that isn’t the truth Colonel Jessup is talking about in his outburst on the witness stand, the line that everyone remembers from this movie: “You can’t handle the truth!” (That line is Number 29 in the American Film Institute’s list of the top 100 movie quotes.)
Having never been a JAG officer, I can’t comment on how accurately the court martial scenes reflect the military justice system; accurate or not, they are certainly dramatic and well acted. There is one excellent example of how real lawyers should conduct themselves: Captain Ross’s opening statement is succinct, premised on statements of fact, devoid of emotion but not of passion and drama, and offers a clear view of what his case is about. I’ve showed it to my students at DU Law School, who think that an opening statement has to be long, flowery, and argumentative to be effective. Perhaps I should show it to some of the lawyers who appear in my courtroom, too.
This movie was nominated for Best Picture and Nicholson for Best Supporting Actor (although how anyone could see Nicholson as having a “supporting” role is beyond me). The movie was directed by Rob Reiner, famous as “Meathead” Michael Stivic, Archie Bunker’s son-in-law. Reiner also directed one of my favorite non-law movies, The Princess Bride. There are a number of recognizable faces in the cast, including Kiefer Sutherland, Cuba Gooding, Jr., and Kevin Pollack.
If you’ve never seen A Few Good Men, cue it up. See if you can handle the truth!