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Volume 12, Number 3 (1988) reprinted by permission Legal Studies Forum FROM PERRY MASON TO KURT WALDHEIM: THE PURSUIT OF JUSTICE IN CONTEMPORARY FILM AND TELEVISION DAVID P. LEONARD Indiana University School of Law - Indianapolis ing disillusionment about and suspicion toward traditional American in- stitutions. This loss of confidence is reflected strongly in attitudes toward the system of justice and the lawyers and judges who are its officers. Fueled by evidence of fundamental injustice in the nation and adventur- ism abroad, the post-war generation began to question the moral under- pinnings of the justice system. This questioning occurred despite the teaching to which that generation had been exposed, which held that the American system of justice was the single institution which most clearly evidenced the moral superiority of American institutions. Though history had revealed isolated instances of injustice, we were taught that those occasions arose not from the failings of the system's judges and lawyers, whose labors were approached with almost missionary zeal, but from causes outside the system itself. Only the warped talents of those rare people of true evil could render the system impotent to achieve truth and justice. Two clear lessons emerged from this traditional teaching: the sys- tem itself was pure, and the system was capable of finding underlying truths in the cases that were channeled through it. The events of the past twenty years have created fundamental uncertainty about the truth of these lessons. The depiction of the system of justice in American cinema and televi- sion has reflected this loss of confidence. Though counter-examples can of course be cited, it can be said generally that prior to the late 1960's, media presentations of the justice system were largely uncritical. They evi- denced little ambivalence about the system's integrity or its ability to root out and identify evil. In recent years, however, growing doubt about the purity of the system itself, and the concomitant sense that the system is incapable of reaching acceptable findings of right and wrong, have begun to consume cinematic and television treatments of the justice system. This essay will examine this change in the depiction of the legal system. After exploring this theme, the essay will conclude with speculation about an even more troubling possibility: that our doubts about the integrity of the system shelter a deeper societal uneasiness about whether there is truly a clear line between good and evil.1 Prior to the past two decades, film and television portrayals of the law generally placed the system of justice itself in the background. It was not a character, but a silent, dependable partner in the inexorable process of uncovering truth. Perhaps nowhere was this benign and reassuring depic- tion of the legal system more evident than in the "Perry Mason" series, which ran for nearly a decade from the mid1950's to the mid-1960's, and which has been recently reactivated in the form of occasional television movies. Each episode represented a successful search for truth, culmina- ting in the identification of evil and the exoneration of the wrongly accused defendant. At the end of each program, the audience experienced (perhaps intuitively) a strong sense of reassurance that the lawyer's skill can be used to uncover truth. The integrity and constancy of the system of justice were never in doubt; all actors in that system were committed to learning the truth. Even the ever-embattled prosecutor, whose theory al- ways proved flawed, never viewed himself as the loser. He was, instead, a satisfied actor in a system designed to find truth, and he knew that he played an essential role in the process of achieving justice. Events of the past two decades have shaken deeply our faith in the integrity and competence of the system of justice, and the media of film and television have played an important role in highlighting this change in attitude and focusing the deep concerns that change represents. From 1972 to 1974, our televisions brought into our homes undeniable evi- dence of corruption at the uppermost levels of government, reaching not only into the political system but also into the Department of Justice it- self. Though rough justice was ultimately achieved when the President was driven from office and his highest officials convicted and disgraced, we could not escape the fear that what we had witnessed on television was but a symptom of a deeper illness, that the very system which we had been raised to believe set our nation apart was itself rotting away. As real-life events have taken away our nnocence about the integrity of the system of justice and the lawyers and judges who are sworn to uphold it, the film and television media have begun to present images that reflect our sense of unease. The examples are many and dramatic. In the 1987 release "Suspect," Cher plays a Washington, D.C. public defender worn down by a system in which she feels herself merely an insignificant part. She is looking forward to a vacation and, perhaps, a reassessment of her career. But she loses her opportunity for such a break when she is assigned to defend a deaf, homeless man accused of commit- ting a brutal murder. There are at least two ways to view what follows. The first is to see the plot as a relatively engaging thriller which becomes compelling because of the audience's identification with Cher's character and its curiosity about the plot's resolution. At first, we identify with Cher's fear as she tries to penetrate the man's violent, antisocial exterior and establish some communication with him. When she succeeds in breaking through, and becomes convinced of the man's innocence, we are drawn in by Cher's attempt to find proof of the man's innocence and of the true killer's identity. When Cher is approached by Dennis Quaid as a juror in the trial who is himself skeptical of the defendant's guilt, she knows that mere communication with this person is an ethical violation for which she may lose her license to practice. Yet compelled by her attraction to Quaid's character, by her desire to help her client, and by her growing sense that something is terribly amiss, Cher begins to work with the juror to solve the crime, and we go along. The same is true as Cher, now physically endangered, reaches closer to the logical but surprising conclusion. The story is highly improbable. That description, however, characterizes most films in this genre, and the lapses here are no greater than usual. A second way to view "Suspect" is to examine more deeply the mean- ing of its major events. Under its surface, the plot reveals a much darker set of truths. The more we examine Cher's triumph, the more we realize that it is triumph despite, rather than within, the system. The true killer, after all, was not a faceless psychotic but the very judge who was presiding over the case, a man who had orchestrated both the murder and the subse- quent prosecution in order to prevent his own corrupt past from being revealed. The one person in whom we depended most deeply to affirm our values about the system of justice, who in fact personifies that system, serves not just as an unwitting impediment to the discovery of truth (as we were led to believe throughout much of the story), but as the very agent of evil. And the only way in which Cher is able to piece together the diverse clues to uncover the truth is to move outside the constraints of the system of legal ethics by establishing contact with the juror, a Washington lobbyist of questionable morals who would bed a congresswoman in order to obtain a favorable vote for a client. So while the truth may be revealed in the end, Cher's victory is at best an ambivalent one. We come away somewhat reassured that good can prevail, but despite rather than because of the system. Indeed, the character most personifying the system itself is utterly corrupt, and Cher's strict adherence to the constraints which the system would place on her conduct would have prevented her from un- covering the facts which led to the identity of the killer and the exonera- tion of her client. The 1985 film "Jagged Edge" explores somewhat similar themes. There, Glenn Close plays a lawyer hired to defend Jeff Bridges, who has been charged with the brutal murders of his wife and maid. As with "Sus- pect," the film can be viewed on at least two levels. Superficially, it is a relatively well-constructed mystery, with the lawyer quickly deciding that the client is innocent and beginning to search for clues to the true crimi- nal's identity. That the lawyer falls in love with her client only increases her zeal to discover the truth. She does a good job; her client is acquitted, and all seems well. But after the trial, the lawyer accidentally uncovers a key piece of evidence proving conclusively that her client was in fact guilty. When the client learns that his lawyer has uncovered the truth, he tries to kill her. But she is prepared, and kills him. On a deeper level, "Jagged Edge" also explores the frailty of the criminal justice system and the ability of some people to undermine its truth-determination function. Early in the story, we learn that Close's character had once been an assistant prosecutor in the district attorney's office, working for the man who has now risen to the position of District Attorney and who is prosecuting her client. On one occasion while Close was an assistant prosecutor, she handled a case on which her boss unethi- cally suppressed evidence which would have exculpated the defendant. Close got a conviction, and the man was sent to prison where he was murdered. Close feels enormous guilt over her complicity in this matter, and the underlying tension created by her remorse for her past misdeed and her extreme dislike for this prosecutor seriously clouds Close's judg- ment. Consumed by this emotion, and led astray by her client's mock sincerity, she ignores the prosecutor's warnings of her client's evil and becomes an unwitting participant in the undermining of the system. Though the guilty client pays his dues in the end, it is not the system itself that has brought him down. It is his own lawyer, acting independently, after the system has failed. Once again, serious questions have been raised about the possibility of achieving justice through our formal institutions.2 In the 1987 film "Nuts," Barbra Streisand plays the middle-aged daughter of wealthy parents. The character has suffered severe emotional problems which have caused the breakup of her marriage and led her to become a prostitute. One day, she kills a customer. The audience is shown in unequivocal terms that the character acted in self defense; her customer had become extremely violent, and posed a clear and immediate threat to her life. But agents of the criminal justice system are unaware of these facts. Finding the woman's behavior aggressive and uncooperative, the state begins proceedings to have her declared mentally incompetent and institutionalized rather than brought to trial for the killing. The woman's parents, convinced that she is insane and believing that institutionalization represents her only hope for regaining a normal life, become eager parti- cipants in this proceeding. As the audience knows, however, Streisand's character is not crazy, and the remainder of the film consists of her efforts, supported by lawyer Richard Dreyfuss, to prove herself competent to stand trial. When she triumphs in the end, it is not because of the mental health and justice systems, but despite them. Her victory has been achieved by a fight over, rather than in cooperation with, the system. Dennis Quaid, whose morally ambiguous juror in "Suspect" was of central importance in solving the crime, played a similar character in another 1987 film, "The Big Easy." Here, Quaid is a New Orleans police officer, following a long family tradition. The department is highly cor- rupt, and Quaid is as deeply involved as the other policemen and detec- tives. He willingly accepts his cut of bribe money paid by crime figures, and plays along in other corrupt practices. Ellen Barkin is a government attorney, called in from outside New Orleans to conduct a murder inves- tigation. She possesses little knowledge of the depth of the system's cor- ruption, and shows no understanding or toleration when that corruption begins to be revealed to her. The more she learns of the system, the more debased she believes it to be. But her investigation leads nowhere until she somewhat unwillingly accepts Quaid's help. Disgusted by his methods but drawn by his personal charm and intimate knowledge of both the system and the criminal world, Barkin begins to make progress, and ulti- mately solves the crime. But she has done so only by dealing with the very corruption which she so abhors. Toward the end of the story, when Bar- kin is drawn to a Cajun community where Quaid teaches her a local dance step, it is more than to a new kind of music that she is learning to move. She is also learning to dance with a system she despises but knows she must work with in order to do her job. It may be true that at the conclu- sion of the story, Quaid stops participating in the system's corrupt prac- tices. But he does so at great cost, and we are left with the sense that the debasement of the justice system is very deep indeed. Any hope that the system may be purified must be tempered by that realization. Many of these themes have been reinforced in the television series "L.A. Law." In this program, the legal system is often portrayed as bureaucratized and unwieldy to such a degree that if truth emerges, it is only because persistent lawyers (often dragging demoralized clients be- hind them) have the tenacity to keep fighting. In these depictions, the system is constantly shackled by detail, its actors unable to capture the larger meaning of cases absent the heroic efforts of lawyers who simply will not concede. And at times, it is the system itself which comes under attack. In one of the more challenging "L.A. Law" plots, lawyer Anne Kelsey, played by Jill Eikenberry, represents a psychiatrist in a civil action brought by the parents of a murdered woman who was one of his patients. One of the psychiatrist's other patients had allegedly carried a machete into the psychiatrist's office and told him that he was going to use it to kill the woman. The psychiatrist fails to warn the patient of the threat, and the woman is killed. The machete-wielding patient pleads guilty to the crime, and is imprisoned. In the course of the civil trial, however, Kelsey becom- es suspicious of the credibility of the confessed killer, who has been called as a witness. Kelsey manages to create sufficient doubt in the minds of the jurors about whether the man actually killed the woman that the jury refuses to hold the psychiatrist liable for failing to predict the man's vio- lent behavior. After the trial, Kelsey tells the psychiatrist that she believes the real killer is still loose, and seeks his help to track the killer down. The psychiatrist then tells Kelsey that it was he who killed the woman because the woman had threatened to reveal that they had had an affair. The psychiatrist reminds Kelsey that he has just divulged confidential informa- tion in the context of the attorney-client relationship, and that she will face disbarment if she reveals that information. Kelsey is apparently disabled by the very system she has sworn to uphold. She is told that she cannot reveal what she knows, but she is aware that unless that information comes to light, an innocent man will remain in prison, the victim's family will continue to be deprived of any compensation from the man who in fact committed the murder, and the killer will remain free. For Kelsey, as well as for the audience, it is not just the killer who prevents justice from being done, but the system of justice itself. In the show, a rough form of justice is ultimately achieved when the fact of the psychiatrist's guilt is "unethically" leaked to the newspapers by an ill, aging attorney who has little to lose. This act will almost certainly end the psychiatrist's career, and may even make his prosecution possible. But the doing of justice has occurred outside the system, not within it. We are told to accept that there is no route within the justice system by which this guilty man can be punished and the innocent man exonerated. Several episodes later, Kelsey once again faces an ethical dilemma when defending a company accused of creating severe health risks by pol- luting a body of water. When she learns of the client's actual responsibil- ity, and of its indifference to the human consequences of its actions, she blackmails the client into making payments far beyond those which it would otherwise have had to make. Once again, the achievement of jus- tice has required Kelsey to abandon her institutional role as representa- tive of a client, and to become its adversary. But unless Kelsey takes these actions, we believe, true justice will not be done.3 If the bureaucratization of the legal system is a nuisance in many "L.A. Law" plots, it is the very subject of Terry Gilliam's 1985 "Brazil." In this desolate portrait of the near future, law and justice are no longer merely impeded by an unwieldy bureaucracy, they have become bureaucracy. Indeed, we see no lawyers or judges at all; every public func- tion is handled by countless individually insignificant bureaucrats. Impor- tant tasks have been divided into such minuscule pieces that none of these tiny actors has any perception of the ultimate effects of his or her actions. When a dead insect drops into a machine as it is printing the name of a man who is to be arrested, a single character in the spelling of the name is accidentally changed. That the information on the paper may be inaccu- rate is of no concern to the authorities charged with apprehending the man, for it is the performance of the arrest - itself a bureaucratic act - which is important, not the facts which might have given rise to the deci- sion to arrest. Here, in contrast to most other films and television pro- grams, justice does not prevail. In the end, the man is indeed apprehended, and tortured to death. It is no wonder that the studio for which the film was made was so reluctant to release the movie. Gilliam was only able to cajole the studio into releasing the film by purchasing a full-page ad in a trade journal begging, in essence, that the studio let his film be seen. The Los Angeles film critics immediately voted "Brazil" the best picture of the year. There is much to be learned from the change in the media's depiction of lawyers in recent years. These films and television programs show us a society fundamentally in doubt about the honor of its most valued institu- tions, and this is deeply troubling. But there may be an even more dis- turbing truth beneath the surface of our loss of confidence in the system of justice, and this truth, too, may be reflected in the media of film and television. The possibility is this: that in addition to our growing doubt about the ability of our system to root out evil, we are also beginning to doubt that there is a clear distinction between good and evil themselves. This troubling possibility was not reflected in earlier media presenta- tions of the justice system, which were largely positivist. Perry Mason's in- evitable victories affirmed not only the strength and competence of the sys- tem but also the bright line between right and wrong, between good and evil. The show justified our faith in these beliefs each time we watched, and thus our knowledge that Perry Mason would always win compelled rather than bored us. Like Michelangelo, who held that the pure sculp- ture already existed inside the rocks on which he worked, we accepted that truth was clear and could be revealed if only we possessed the skill and determination. Observing Perry Mason at work in his own artistic context reaffirmed our faith in the existence of the truth inside the rock. Even today, reruns of the old episodes are highly successful in syn- dication, and the several television movies which have brought the charac- ter back to life have found large audiences. At the same time, the popular- ity of such "reality" programs as "People's Court" has been extraordinary. Manifestly, a part of our collective selves still yearns to believe in clear truth, and in the basic wisdom and competence of the system. Though we no longer possess the sense of innocence and trust that underlies the con- ception of the legal system in these shows, we still want to be able to believe in that image of the system. We want to suspend, even if only temporarily, our disillusionment. Through these characterizations, we find a kind of satisfaction that our sense of reality does not permit. This is not to suggest that the post-war generation is the first to have suffered a sense of loss and disillusionment. Undeniably, the generation which came of age in the 1920's and 1930's bore witness to the most illusion-shattering period of human history. After the revelations of the Nazis' atrocities, it was difficult to believe fully in the essential goodness of all people. The impact of this experience on the sensibilities of the pre-war generation cannot be minimized, but the disillusion which accom- panied these horrible revelations was of a different type. Though the rev- elation of the atrocities of World War II cost our society its innocence, it did so at that time precisely by exposing the undeniable malevolence of certain forces in the world. The world contained far more evil than could previously have been imagined, but the evil was identifiable and clear, or so it seemed. And our need to be able to continue to see this evil embo- died in particular individuals and institutions made it possible for figures such as Senator Joseph McCarthy to rise to prominence. Above all else, the promise he held out was the very identification of evil, and we accepted his efforts with gratitude until his own excesses were themselves revealed. By the time the post-war generation reached adulthood, however, the division of the world into forces of good and evil was no longer quite as easy. Perhaps certain totalitarian regimes had committed unspeakable atrocities, but when the hands of the democratic powers were examined, they too were found unclean. How could the world's democracies have refused to accept desperate refugees from murderous regimes? How could our own nation's military have been deeply segregated along racial lines? And how could the United States have been the only nation ever to have used the ultimate weapon of destruction against the population of another nation, even though a sworn enemy? Although there are rational responses to each of these questions, the point is that the very need to face such issues creates enormous uncertainty about the moral superiority of our institutions and the line between good and evil, both of which we had been taught to take for granted. A recent Home Box Office presentation provides perhaps the most subtle but fullest realization of this phenomenon. In the lengthy produc- tion "Waldheim: A Commission of Inquiry," an international panel of judges is convened to hear evidence presented by two distinguished lawyers on the question of "whether there is sufficient evidence to war- rant an answer by Dr. Kurt Waldheirn to allegations that he wrongly par- ticipated in acts which were contrary to the international laws of war" while a soldier with the German army in World War II. This was not a dramatic presentation in the usual sense. It was a film culled from forty hours of presentation of testimony and documentary evidence in an adversarial context, followed by six weeks of deliberation by the panel of judges. There were no "actors" in the program. The judges were actual current or former judges representing five nations, and the lawyers pre- senting the evidence for each side were seasoned trial counsel.4 Though obviously carrying no legal authority for its proceeding, and though made in the absence and without the cooperation the inquiry's subject, the com- mission's purpose was to try to determine, in a dispassionate, formal con- text, whether there is sufficient evidence to bring Waldheim to trial. It was an ambitious undertaking. Its unstated goal, no doubt, was to help the audience to come to a clearer understanding of the nature of good and evil. No one asserted that Kurt Waldheim wielded the weapons which murdered innocent people or personally placed screaming women and children into crematoria. Most of those responsible for committing such acts, or for directly and knowingly ordering that such acts be carried out, have long since been brought to justice. But at the same time, neither the counsel presenting the evidence against Waldheim nor the man whose job it was to challenge the evidence doubted that Waldheim was a part of a machine which engaged in the most brutal and wide ranging crimes in the history of the world. It is easy to imagine that the filmmakers hoped that even in this era of increasing uncertainty about the difference be- tween good and evil, the proceeding, and the program to be made from it, would reveal a bright-line distinction. Allan A. Ryan, Jr., who presented the evidence against Waldheim, recognized the underlying moral ques- tion involved, and argued eloquently for a clear resolution: To reach a fair conclusion, this Commission must consider theThe Commission listened to the evidence, deliberated at length, and determined that the evidence was insufficient to warrant an answer by Waldheim. As viewers, we can understand why this result was reached, but we are most ambivalent. We watched the show in hope of reaffirma- tion that good and evil are clearly distinct, and that the system can root out evil once presented with the evidence. We believed that this type of formal tribunal, the very embodiment of our system's greatest strengths, could make things more clear. But it could not. If we cannot clearly dis- tinguish among those who should be held responsible for the most mas- sive and inhuman crimes ever committed, there cannot be great hope that such distinctions can easily be drawn by our justice system in handling the day-to-day cases with which it is faced. The program held a mirror before our eyes, but we could not see more clearly. as war and police stories, the essay will for the most part limit its discussion to those films and television programs in which lawyers and judges are the central characters. 2. "Jagged Edge," of course, is not the first film to portray a devious client who leads his lawyer, and the system, astray. In the classic 1958 drama "Witness for the Prosecution," murder defendant Tyrone Power outwits both his lawyer Charles Laughton and the jury. But the plot gives us no strong reason for disillusionment with the system itself. 3. Not all recent films have played fair in their characterizations of the failings of the legal system. Two films in particular, "The Verdict" (1982) and "The Star Chamber" (1983) have grossly distorted and exaggerated these failings. The thesis of "The Verdict" appears to be that the civil justice system is so corrupt that neither side stands a chance without engaging in unethical conduct. The story is presented not as satire but as an accurate portrayal of the way lawyers work, and as such it is deeply flawed and unjustifiably cynical. The same comments apply to "The Star Chamber," a film which implies that large numbers of violent criminals must be released because of legal technicalities. The film trivializes the constitutional underpinnings of these "technicalities" and, like "The Verdict," is especially troubling because of its effort to convince the audience that it presents an accurate portrayal of the system. 4. In the sense that this program was unscripted, and that the filmmakers controlled neither the evidence presented nor the outcome of the inquiry, the film is different from each of the others discussed in this essay. This type of work does not as clearly represent the point of view of the filmmakers. In some ways, though, the film provides an even clearer picture of a society in the act of debating its most fundamental moral terms. The judges are being asked to determine the nature of moral responsibility, and this process is being preserved on film. |
