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Volume 48, Number 6 (2001) reprinted by permission of the author and the Law Review TONY RICHARDSON'S THE PENALTY PHASE: JUDGING THE JUDGE Francis M. Nevins* This Essay includes (1) a survey of main currents in the key law-related films of the Warren era and of our own, (2) curricula vitae for both Tony Richardson, who directed this film, and Gale Patrick Hickman, the sitting judge who wrote the screenplay, (3) a lengthy description of the film (necessary because its excellence is equaled only by its obscurity), interspersed with commentary suggesting how the film's Janus faces are related, and (4) a discussion of its relation to literary classics like Oedipus Rex and Billy Budd, to Hegel's theory of tragic collisions, to idealistic law-related films like To Kill a Mockingbird that roughly coincided with the Warren Court's peak years, and to the more recent and more cynical films that are familiar to our own time. In 1977 the Orange County Superior Court appointed him a judge (technically his title is Commissioner) of its Juvenile Division. In January 1985, happily remarried and settled into his black robe, he began spending off hours in his chambers. At a desk cluttered with law books, writing manuals, and copies of Othello,8Leaves of Grass,9 and The Sound and the Fury,10 he began work on the screenplay that ultimately became The Penalty Phase.11 While at work on the screenplay he happened to be visited in his chambers by an attorney who practiced before him and who suggested that, if and when he ever finished, he should send the work to a childhood friend of hers who had co-produced the Sally Field movie Norma Rae,12 Tamara Asseyev. Tamara loved the script and put together the deal that led to its being filmed with Peter Strauss in the leading role and Tony Richardson directing. Cecil Antonio Richardson was born in Yorkshire, England on June 5, 1928.13 Twenty years later, having already founded a young theater group in his home town, he entered Oxford University's Wadham College and immersed himself in all sorts of dramatic activities including putting on productions of Peer Gynt14 and The Duchess of Malfi.15 After graduating with a degree in English literature he got a job as a director with the BBC, but found that institution a bastion of bureaucratic mediocrity. He left in 1954 to direct stage plays, but his ultimate goal was to direct films. His first feature, Look Back in Anger,16 was an international success which he followed up with The Entertainer,17A Taste of Honey,18 and The Loneliness of the Long Distance Runner.19 Among the literary and dramatic classics that Richardson transformed into films with varying degrees of success are William Faulkner's Sanctuary,20 Henry Fielding's Tom Jones,21 Evelyn Waugh's The Loved One22 William Shakespeare's Hamlet,23 Vladimir Nabokov's Laughter in the Dark,24 Edward Albee's A Delicate Balance,25 and Henry Fielding's Joseph Andrews26 Throughout these decades he ping-ponged between English and American projects and kept a lavish home in the Hollywood Hills. By the mid-1980s, with his career in decline, he was persuaded by his friend Tamara Asseyev to come aboard as director of The Penalty Phase. He died of AIDS on November 14, 1991. of this sort, which had been few and far between since the early 1930s. But the leitmotif of the Warren-era films tended to be idealistic, and most of what one remembers of these films tends to cast law, lawyers and our legal system in a flattering light. One thinks of Don Siegel's Count the Hours,27 in which Macdonald Carey, as the aptly named Douglas Madison, is ostracized by both his fiancee and the community for defending a migrant farm couple falsely accused of a brutal murder; of Alfred Hitchcock's The Wrong Man,28 in which Anthony Quayle, as a young attorney with little experience in criminal law, defends the innocent Henry Fonda without thought of compensation; of Trial,29 in which Glenn Ford plays a law professor who goes to bat for a Chicano youth charged with the murder of a WASP girl; of the paean to the American jury in 12 Angry Men;30 and of Spencer Tracy as Henry Drummond in Inherit the Wind,31 fiercely defending the right of a teacher in the Tennessee Bible Belt to discuss evolution. Before any of these, of course, one conjures up Gregory Peck as Atticus Finch in To Kill a Mockingbird,32 using all his forensic skills, oratorical power, and moral authority to save an innocent black man (Brock Peters) falsely accused of rape. A few films of this era are somewhat less idealistic,33 but most share the dominant ethos.34 All that idealism quickly vanished when the Warren era in both legal and film history came to an end and was replaced by a post-Warren Court, anti-Warren Court era. The leitmotif of these films is an acid contempt for law, lawyers, and the legal system. More precisely, the makers of most of these films radically denounce the legal system by employing more or less the same strategy. The films tend to be structured around defining events that are justified dramatically, psychologically, morally, and indeed every way in the world except legally. Think of the crucial Kezar Stadium scene in Dirty Harry,35 in which director Don Siegel pulls the camera back into the night sky so that we see only two specks but hear screams as Clint Eastwood tortures the wounded and helpless Scorpio (Andy Robinson) to make him reveal where he buried a teenage girl alive. Remember Al Pacino in ... And Justice for All36 crying out to the jury that the sadistic judge (John Forsythe) he has been forced to defend on a brutal rape charge is guilty as hell. Set down in the same column Gary Oldman in Criminal Law,37 trying to make amends for securing the acquittal of a psychopathic serial killer (Kevin Bacon) by befriending the man and betraying his confidential communications to the police. And Harrison Ford in Presumed Innocent,38 who is in fact innocent of the murder he's been charged with but gets acquitted only because his attorney (Raul Julia) has blackmailed the corrupt judge (Paul Winfield) into making rulings favorable to the defense. And Tom Hanks in The Bonfire Of The Vanities,39 who commits perjury to temporarily escape the politically correct lynch mob in charge of the judicial system. And Nick Nolte in Martin Scorsese's version of Cape Fear40 who is hounded by his sociopathic former client (Robert DeNiro) because years before, while representing DeNiro, he had suppressed a report that the victim of DeNiro's brutal rape was sexually active. And I haven't even mentioned any of the movies based on John Grisham novels! A few films from the past few decades are not quite so negative, just as a few in the Warren era were not quite so idealistic as the pictures mentioned above.41 But it is the films just evoked that sound the leitmotif for our generation. Within this context, the genius of The Penalty Phase becomes apparent: it is an artfully choreographed duel of juristic values between the spirit and ethos of the Warren films and those of the films of our own time. On first viewing it is easy to dismiss the film as unsubtle propaganda for the Warren court. But the more one watches this amazingly rich and nuanced work, the more one becomes aware of what amounts to a second film, which lies beneath the surface and is perfectly consonant with the first in terms of story-line, characterization, and visual style, but radically at odds with its moral and juristic valuations. The only way I can attempt to do justice to Richardson's and Hickman's vision is to construct a verbal model of the film interspersed with readily identifiable subjective commentary in which I suggest how its Janus faces are related. If I succeed in drawing enough attention to this neglected gem, my detailed description will eventually have outlived its usefulness. "The verdict is in." Judge Kenneth Hoffman (Peter Strauss) finishes lacing his sneakers, puts on his robe, and takes the bench as the jury files in and its decision is handed to him. He begins to read. "People versus Nolan G. Esherman. We the jury in the above entitled action find the defendant guilty of count one of the information, murder, victim Susan Cross, a violation of Penal Code Section 187." Cut. "People versus defendant Nolan G. Esherman." Cut. "People versus Nolan G. Esherman. We the jury in the above entitled action find the defendant guilty of count fifty-three of the information, rape, victim, Stacy Ann Foxmore, a violation of Penal Code Section 261." Cut. "Count fifty-four, People versus Nolan G. Esherman, we the jury in the above entitled action find the defendant guilty of count fifty-four of the information, murder, victim Stacy Ann Foxmore, a violation of Penal Code Section 187." Interwoven with shots of Hoffman reading from the bench (becoming so hoarse that he has to pause every so often for a drink of water), we see the prosecutor Susan Jansen (Jonelle Allen), a clean-shaven obese man among the spectators (John Harkins), some of the families of the defendant's victims, and of course the murderer himself (Richard Chaves), bearded and dressed like an outlaw biker and glaring hate all around.42 Cut to the courthouse corridor with the media and prosecutor Jansen. "Would you care to speculate on the outcome of your race against Hoffman?" "I never feel safe with Judge Hoffman up there on the bench." TV REPORTER: We are here with the mothers of three of the murder victims. [These are the three women we saw on the bench before a word of dialogue had been spoken.] Mrs. Foxmore, we noticed you were the first to cry during the reading of the verdicts. It must have been unnerving waiting four years for this terrible tragedy to end ... . JANSEN: Judge Hoffman's defense rulings are killing me. We have got to get rid of Judge Hoffman. OBESE MAN: We're all gonna be right back here on Monday morning and we're gonna stay here until that - that animal gets the death penalty. REPORTER: Thank you. That was Mr. Hunter, president of the Wasco County Citizens for Justice ... . We will return next week when the penalty phase of the Nolan Esherman murder trial begins.On the street outside the courthouse, Judge Hoffman encounters Art Singleton (Stuart Duckworth), Esherman's assigned defense counsel. Art, I want to see you when this trial is over ... . I'm a little puzzled by some of the things you've been doing. Actually some things you haven't been doing ... . Like why no insanity defense? ... Why no search warrant challenge? You just come around and see me when the trial's over.Next Hoffman joins the other judges of Wasco County who are running for re-election, including his former law partner Donald Faulkner (Mitchell Ryan), for a strategy session prior to a televised debate among all the candidates for judgeships. Most of Hoffman's colleagues are presented as time-serving buffoons who lack minimal integrity and are terrified that his refusal to mouth law-and-order slogans will cost all of them their cushy jobs. The most obnoxious and vocal of them even has a name that sounds like a Nazi. Judge Von Karman (Richard Bright) tells him, "Look, Hoffman, the voters aren't going to give a fat rat's butt about what a nice guy you might be." Says Katie Pinter, public relations person for the incumbents (Jane Badler): "People are afraid out there, Ken. There's no way that you can convey to them the subtleties of being a good judge." Cut to high-school rowing practice on the Wasco River with Hoffman, his sneakers now explained, serving as coach. The comments he shouts to the team ("Jason, sit up taller! Pivot from your hips!") reveal him as a man deeply concerned (obsessed perhaps?) with proper technique. After practice comes a significant bit of dialogue. His son Zach (Ross Harris), who is on the crew, mentions that one of his teammates seems to be suffering from serious back pain. "Do you think I should talk to him?" "It's your boat. You're the coxswain. Use your own judgment." This is followed by a brief exchange along the riverbank between Hoffman and Judge Faulkner's wife Nancy (Millie Perkins). "Such a beautiful river, Ken ... . It'll be a year next week. I miss her so much." "I know you do, Nancy. I miss her too." Previous casual remarks between Hoffman and Zach ("It's your turn to cook, you know") have made it clear that the judge is a single parent. But not until much later will we understand his cryptic exchange with his former law partner's wife as opening the first of several trap doors, so to speak, between the surface of this film and its depths. The next morning, obviously a Saturday, Hoffman, Katie Pinter, and the judge's research attorney Leah Furman (Melissa Gilbert) are in the elevator heading for the debate when they encounter another young woman named Julie (Karen Austin). "She used to be Judge Faulkner's court clerk," he explains to Leah. Why she seems to have made him nervous he doesn't explain at all. Trap door number two. The debate that follows, with the incumbent judges on one side of the stage and the challengers including prosecutor Susan Jansen on the other, vividly evokes the duel between the ethos of the Warren Court and that of this film and of our own time. JANSEN: The people are simply fed up with judges who put their interpretation of the law before the liberty and safety of the common citizen. Time and time again we see the criminal manipulating the system for his advantage. And judges such as these not only walk down the primrose path with them, but they go out of their way to pave that path with newly created rights for which not even they can find constitutional precedent! FAULKNER: I agree, but it's the appellate court that creates these laws. There's no one on this side of the room that wants to see criminals go free ... . HOFFMAN: [To the moderator] I think the folks over there have a very low opinion of the average voter. They think they can press the fear buttons and all the sheep out there will vote them an emotional victory ... .The rhetoric gets so heated that Judge Von Karman slips a note to Hoffman telling him to shut up. That evening, with Zach having just left to go to a movie, Hoffman is alone at home and taking a shower when Leah walks in with some research he asked for and his day's mail from the courthouse. "Your son said to come on in." Their dialogue, separated by the shower door, tells us more about Hoffman's earlier life. "Judge Faulkner seemed so - cautious. How long were you two partners?" "About seven years. Yeah, he's always been the conservative one." Then, as she studies a picture of Zach and a woman we haven't seen before: "Your son sure looks like his mother." "Yeah. They were very close." "And now you don't have a woman in your life?" "Are you practicing your cross-examination?" "I can be a little pushy sometimes." Just how pushy Hoffman discovers when he comes out of the shower wrapped in a towel and finds Leah naked in his bed. What would arouse the protagonists of most movies seems to embarrass this one. "Um, Leah, I'm, uh, uh - I'm, I'm sorry - it's, uh, it's just not the right time ... ." Then, after she has hastily dressed and is about to leave: "Leah, I've, I've made terrible decisions when it comes to women." Trap door number three. As the front door closes behind her, Richardson cuts to a table and one of the letters she's just delivered. Now comes Monday morning and one of the most harrowing scenes in the film as prosecutor Jansen addresses the jury. This is the part of the trial where you will decide to give Nolan G. Esherman life in prison without the possibility of parole, or death. During this hearing you will learn more about Mr. Esherman. His past victims will come here and show you what he did to them. At the end of this hearing I will ask you to order the death of Nolan G. [1566] Esherman, this murderer of seventeen innocent children. Ladies and gentlemen, if I could think of a worse penalty I would ask you to give him that. For indeed death is too kind. Slides, please. [During the rest of her address we see images of torment worthy of the Holocaust reflected on her face and body.] Remember the faces of these beautiful girls during your deliberations. I want these images seared into your memories. These are the same soft eyes Mr. Esherman saw, filled with innocent playfulness. Then fear. Then terror. Then the most unbelievable pain. Then death. Then death.Cut to a recess. Hoffman is opening a letter that came in the mail and, as Richardson presents it, is clearly a copy of the one Leah delivered to his house Saturday. "Get me the court file ... . Get Jansen and Singleton and get "em in here right away," he orders. The ensuing scene between judge, prosecutor and defense attorney not only reveals what was in that letter and how those photographs of Esherman's butchered victims came into the prosecution's hands but brings to center stage the legal issue at this film's heart. HOFFMAN: Art, am I blind or what? The court file tells me you didn't attack the search warrant in the preliminary hearing, you didn't attack it in the motion court ... . Art, we've got a case here that rests entirely upon the photographs found in Esherman's apartment. The police dump the photographs in front of Esherman and he confesses. So the confession is linked to the photographs, right? ... So all the probable cause is created by an anonymous informant. Now we've got a pen pal who says the police invented this anonymous informant and created their own probable cause to get into Esherman's apartment ... . You should have made a motion to suppress the photographs and the confession six months ago. You've got seventeen murder counts resting on the word of an anonymous informant! JANSEN: [furiously] May I inquire just who is the defense attorney here? HOFFMAN: The warrant should have been tested even without these letters. I've got to tell you, with them I don't see how we are going to avoid holding a hearing on it. JANSEN: We're in the penalty phase of this case. Are you telling me you want to stop this case and go back and hear a motion to suppress? ... There's no precedent for that! You can't do that!The scene ends with Hoffman all but ordering Singleton to make a motion to suppress the next morning. Then comes another meeting of the judges up for re-election, at which - over Hoffman's indignant protest - they agree to debate their challengers under the auspices of the Citizens for Justice organization. KATIE: It's not important that we win. It's sufficient that we appear to be concerned, willing to listen, willing to make a commitment. HOFFMAN: A commitment to what? JUDGE VON KARMAN: How about a commitment to reality, Hoffman? If you ... are so hot to get back out on the streets to hustle hypes and whores, then you can do the rest of us a favor and buzz off. HOFFMAN: The public already thinks we're a bunch of political prostitutes. Why should we degrade ourselves further by doing one night stands?Outside the meeting room Hoffman confronts the obese head of the organization. HOFFMAN: I think you like to scare people, Mr. Hunter. I think you found a way to have a little power in your life and like most novices you don't know how to use it. HUNTER: Well, judges must be responsive to the people they serve ... . HOFFMAN: By and large, judges are hard working, unexceptional people. We don't perform very well with the smell of tar and torches in our courtrooms ... . HUNTER: We're watching you very closely, Judge Hoffman, I hope you appreciate that.After these pressures Hoffman needs a few drinks, and the next scene is set in an intimate bar where the judge happens once again to encounter Julie, with whom he seemed so ill at ease at their earlier meeting. HOFFMAN: You look terrific. JULIE: I feel wonderful. Um, I really like the new job and, uh, I'm seeing someone now, um, a nice man, um, he's an attorney. [Nervous laugh] I know, I'm trying not to hold that against him. HOFFMAN: I've thought about calling you. JULIE: No, you shouldn't do that ... . I hope things work out for you too ... .A few minutes later, Leah joins Hoffman at a shadowed table and tries to apologize for last night. LEAH: I want a friend to sleep with ... . What I would like is to find a man who's not a child. We've been working together for the last six months. I thought you might be him. HOFFMAN: Leah, women and I always end up crying. I'm sorry.Returning home, Hoffman listens to his voice mail and hears a message from yet another woman. "I'm the one who wrote you those letters. I just wanted to remind you that I expect you to look into that now. Those cops lied through their teeth about the search warrant. I'll be watching the newspapers to see what you do ... ." The next morning at another conference in chambers, Hoffman plays the tape for Jansen and Singleton and orders the defense lawyer to have an investigator question the cops who procured the warrant. SINGLETON: And what do you think the cops are gonna say? "Yeah, you caught us. We lied under oath. But you go ahead, let this mass killer out it took us years to put away." Have you forgotten that we're dealing with real people out there? I'm going to make a motion to send this to Judge Faulkner. Now he issued the warrant. He's the one who should rule on it. HOFFMAN: The case stays here. JANSEN You may not like this suggestion, but I think you should transfer this to someone who's not up for election this time around. HOFFMAN: The election does not exist inside that courtroom. The case stays here. [Then, to Singleton] Are you going to move on it or not? SINGLETON: And what if I don't? HOFFMAN: I will. I'll appoint an investigator and I'll open a hearing. SINGLETON: Then, Your Honor, you try your case and I'll try mine.When the fuming defense lawyer has gone, there is an exchange between the prosecutor and Hoffman which shows us that, even though she despises his ideology and wants his job, she also cares for him deeply. JANSEN: Ken, in all candor you're committing suicide. HOFFMAN: In all candor, Sue, if you're planning on wearing this robe, you'd better be prepared to do the same thing.The investigator Hoffman hires is Pete Pavlovich (Art LaFleur), a rumpled working stiff with a beer gut who, among the several overweight men in the film, is the only one presented as likable. Says Hoffman: "What it boils down to is yes or no. Did they [Detectives Turnley and Dagenpatt] lie to Judge Faulkner on the search warrant? ... Bad search? No case. Fruit of the poisonous tree. Mr. Esherman takes a walk." The next day, while Hoffman is coaching another practice session along the banks of the river ("Are you guys rowing or killing fish?"), Faulkner comes by to urge him not to pursue the truth too vigorously, and we learn that Pavlovich has gone to San Francisco where Detective Turnley is attending a police convention. "Ken, if this thing blows up, we're all back practicing law next year." (Sounds like a fate worse than death.) Hoffman replies, "If I find out those cops lied to you on the [search] warrant I'm not going to have much choice, now am I?" Richardson then returns us to the courtroom where the penalty phase is going forward. Without objection from Singleton, Susan Jansen presents medical testimony about the tortures Esherman inflicted on his victims. At the end of the day's session Pavlovich reports to Hoffman what he learned in San Francisco. It's not easy keeping up with Detective Turnley when he's on one of his binges... . [He claims] he had nothing to do with getting the search warrant. He says it was Detective Dagenpatt's play all the way ... . But he did say that he was told they wouldn't have to testify about the warrant ... . Dagenpatt and Mrs. Turnley have been taking recess together a little too often ... . Turnley is drinking nonstop these days. He's near crackup ... .That evening Hoffman goes to Faulkner's house for cocktails and poker with the other judges who are seeking re-election and the publisher of the local newspaper whose endorsement they want. "Okay, Don, just don't expect me to kiss his butt." "Come on, partner! You played politics to get a judgeship, you gotta play politics to keep it. Don't be so damn self-righteous!" Again Faulkner urges Hoffman not to push his investigation. "Damn it, Ken, why can't you wait till after the election? ... Why don't you leave the whole thing alone?" Replies Hoffman, "I can't do that ... . It was your warrant, Don. I'd think you'd be interested if the cops lied." An enraged Faulkner tells Hoffman to get out of his house. The next day is Friday and we are back in court with Jansen questioning the only survivor among Esherman's victims, who testifies in sign language through an interpreter. INTERPRETER He, he put me on a table. A workbench of some kind. He untied my ankles. He hurt me. I don't want to tell this ... . JANSEN: What did this man do to you after he raped you? INTERPRETER: He cut my throat. He cut my vocal cords. Do I have to show them?After court Hoffman learns from Pavlovich that Detective Turnley killed himself earlier that day. "Stopped on the side of the freeway and put a hole in his head." Between the end of the business day and the scheduled debate among judicial candidates that evening, Hoffman apparently has some free time. Richardson first shows him working out intensely on his rowing machine, then making a phone call, then enjoying another sort of workout in Leah's bed. Finally the new lovers go to the debate, where Hoffman gives the news about Turnley's death to Faulkner. "It's, uh, it's tragic, but at least you don't have to hold that hearing now." "Probably not ... . I've got a couple of questions, though, I want to ask you. I looked at the Esherman file this morning. I noticed you appointed Singleton [as defense counsel]. I want to talk to you about that." What Richardson shows us of the debate sponsored by Citizens for Justice makes most of the other incumbents and most of the challengers look like hypocritical hacks and Hoffman like the beleaguered lone champion of integrity. Under questioning by a judgeship-seeking prosecutor, Hoffman defends his dismissal of fifteen child molestation cases. [S]ome of those cases were so weak the D.A. waived jury and let the court take the heat ... . You've got a weak case, you don't have the guts to dismiss it, so you let the judge do it ... . In fact, Mr. Prosecutor, it appears to me that I've been getting a greater number of your losers since you guys decided to run against us. Now you, you haven't been playing politics with the trial calendar, have you?Then, after a torrent of lock-up-the-guilty-bastards rhetoric from Von Karman and other incumbents: "We at this table shouldn't and I won't make you a promise I can't keep." Saturday afternoon, while Hoffman is with Leah on the rowing machine in his boat shed, Katie drops by to tell him that he must run for re-election on his own. His colleagues have voted him out of their group and she cannot serve as his PR person. "You're too honest to be a good client." Later in Hoffman's chambers, Pavlovich reports what he's discovered about the assignment of Esherman's defense counsel. "Singleton had a felony drunk driving charge. It was transferred to Faulkner's court. The charge was reduced to a misdemeanor, no jail, no fine. Even got to keep his bar card ... ." Studying the court file, Hoffman remarks, "Faulkner appointed Singleton to the Esherman case on the same day ... ." Hoffman then visits Faulkner's former clerk Julie at her house on the river in an effort to learn more about his former law partner's issuance of the Esherman search warrant, but what we learn from her other comments is far more revealing. "Look, you're a year late coming through the door ... Were you really going to leave her for me?" "Yes," Hoffman replies. "Yes, I was." Hoffman announces that he will hold a hearing on the legality of the search warrant and subpoenas not only the deputy D.A. who was present at its issuance, but also Detective Dagenpatt and Judge Faulkner, who storms into Hoffman's house. FAULKNER: Why did you subpoena me? What is it you want to know? HOFFMAN: I'm going to have to ask you why you appointed Singleton ... . And I'm going to find out why Singleton's been ducking the search warrant issue.Then Hoffman tells his ex-partner what he suspects. HOFFMAN: Those cops had a problem with the Esherman case. They took the problem to [Deputy D.A.] Gene Waterman and ... Waterman trotted down to Don Faulkner's chambers to get it solved ... . Gene says: "Don, ... I need a judge willing to bend the law a little bit. All in the interests of justice, mind you." ... And then ... you needed a defense attorney. One who would agree to look the other way on the search warrant. You thought of Singleton ... . I think you bribed him, Don ... . FAULKNER: [in desperation] Look, Ken, can't we find some kind of middle ground? We're talking about fifteen years' friendship! HOFFMAN: I've got to call you ... . FAULKNER: [echoing prosecutor Jansen's previous statement] You're committing political suicide ... .The next scene takes us back to the courtroom and Hoffman's hearing on how the police obtained their search warrant. Under questioning by Hoffman is Detective Dagenpatt. This new addition to Richardson's gallery of obese grotesques claims to have received a phone call from an anonymous informant to the effect that Esherman was keeping photographs of the girls he had mutilated in his apartment. Then, he testifies, he and his partner Turnley made out the search warrant affidavit and took it to Deputy D.A. Waterman, who in turn took it to Judge Faulkner. Subsequently they entered the apartment, found the photographs in a closet as the informant had claimed, and arrested Esherman when he arrived a few minutes later. "He's lying!" screams Esherman. Dagenpatt goes on to testify that he and Turnley spent two and a half hours searching the apartment before they brought Esherman in for booking. Between segments of the fat, sweaty detective's testimony comes a powerful exchange between Hoffman and the prosecutor. JANSEN: With all the respect due this court, it is infinitely clear to me that by this investigation this court has gone beyond its proper role ... . HOFFMAN: Ms. Jansen ... . JANSEN: And has assumed the role of advocate. HOFFMAN: Sit down, Counselor. JANSEN: I think you have already decided this case. HOFFMAN: Sit down, Counselor. And if you finish that sentence I will have no choice but to hold you in contempt. JANSEN: With all respect ... . HOFFMAN: If you accuse me of willfully refusing to follow the law I'll have no choice, Ms. Jansen. NOW - SIT - DOWN!That evening, while the judge and his son Zach are preparing dinner, comes another exchange. ZACH: Why don't you just have him castrated and let him bleed to death? [Pause] I don't get an answer? ... Two of those girls went to my school ... . I've got a right to think that way. HOFFMAN: I happen to have a job that doesn't allow me to think those things. And if I do - and I'd be lying to you if I said I don't sometimes - then I'm not allowed to get emotional about it ... . ZACH: I can understand that. I just don't like it. HOFFMAN: [enraged] Now where in the hell did you ever hear me say that I liked it?The next witness at Hoffman's hearing is Esherman himself. His version of events is that Turnley and Dagenpatt handcuffed him to his bed and searched his apartment without a warrant. After finding the photographs, Turnley left and only came back with a properly executed search warrant after the fact. The following morning before court, Pavlovich shows up with the woman who sent Hoffman the anonymous letters: Clair Turnley (Stacey Pickren), widow of the detective who killed himself. She admits having been Detective Dagenpatt's lover but claims that he had told her the real story about the search warrant. They knew he had done it, they just couldn't prove it. Anyway, he said he just decided to go inside and search the apartment and see what turned up ... . [T]hey found all those photographs of those d-dead kids. And then all of a sudden Esherman came in and surprised them. And then [Dagenpatt] decided to try to get a search warrant to show that it was issued before they had gone into the apartment so that the search would be okay ... . He said he took some of the photographs they had found and described what they showed. He wrote it in the ... affidavit for the warrant and pretended an, an informant had told him all of that ... . He said they'd never catch him unless they did it that way. He had to do it.On cross-examination Jansen charges that as a detective's wife Clair had the knowledge to make up her story, and that she had motive to do so because Dagenpatt had dumped her. Her reply is that it was she who dumped him, after he tried to molest her fourteen-year-old daughter, although she admits that she had not made such a charge against the detective until now. Whether she's telling the truth about the molestation of her daughter we never learn, and it hardly matters since either way our moral judgment on her is equally devastating: By deciding to get even with Dagenpatt by sending the anonymous messages to Judge Hoffman, she knowingly created a situation that may result in Esherman being set free to rape, mutilate, and murder any number of girls her daughter's age. Later, in chambers, after court has adjourned for the day, Leah confesses to Hoffman that she believes both Esherman and Mrs. Turnley. "I don't think Dagenpatt had the warrant when they made that search." At this point I would dearly love to have seen this conversation continue. I wish Leah had suggested that Hoffman could easily make this agonizing situation go away simply by ruling that he believes Dagenpatt and not the sociopath and the spurned mistress. She might also have reminded her lover (for the benefit of the film's nonlawyer viewers) that whatever ruling he makes about witness credibility is unlikely to be second-guessed by an appellate court. How would Hoffman have replied? In view of the unbounded integrity which has been his most prominent character trait thus far, he would have said something like: "I cannot and will not rule as a judge that I find credible what as a man I believe to be perjury." I believe that the film is the poorer for the absence of such an exchange. What really happens between them is different. Because the credibility issue hinges on the exact time Judge Faulkner issued the warrant, but the numbers on the time stamp are smeared, Hoffman tells Leah that he will call Faulkner as a witness the next morning. As the judge is leaving court, his reporter (Mark Allen) takes him aside. "I, I just don't think you're doing the right thing, Ken." Hoffman comes home to find Faulkner's wife waiting for him, and their dialogue at last begins to give us some insight into the depths of his character and of this film. NANCY: If you're going to put my husband on the witness stand tomorrow, if you're willing to destroy my husband and my son and my life ... . If you do that, I am going to do something so evil, so mean, so beyond my imagination of myself ... . HOFFMAN: He has an obligation to tell the truth. NANCY: Ken, isn't there a point where the legal games and the technicalities come to an end? Are we never allowed to say, no matter what, that man will not get a chance to kill again? Can't you find a way to do that, Ken? HOFFMAN: Nancy, I don't have the right to do that. NANCY: How can you sit up there on the bench and forget the rights of those kids? What about their right to live? Their right not to be ripped apart by a monster? HOFFMAN: Don has to tell the truth. I don't have the power to change that. NANCY: Then we shall all get a good strong dose of the truth, Judge. HOFFMAN: We shall all live by the same rules. And tomorrow morning ... I shall tell your son, Ken, that his mother did not just drown in that river out there last year. That she was weighted down by forty sleeping pills, the same day you told her that you were going to leave her for that cute little court clerk you were messing around with ... . Diane had a desperate lovely little dream, Ken. She thought if you became a judge that you would settle down ... . Do you know who she came to for that dream? My husband ... . And then you broke her heart. I want to go home and tell my husband that he's not going to be crucified because he did the right thing. HOFFMAN: I'm sorry, I can't promise you that. NANCY: Then I will promise you this. If you don't call me by eight o'clock tomorrow morning, I'm telling Zach.We have reached the crucial moment. Until now Hoffman has been presented as a charismatic and compassionate man with a consuming passion for both personal and judicial integrity. Richardson and Hickman have wanted us to believe in this judge, and in order to push us in that direction they have presented most of those who oppose Hoffman or who are threatened by his uncompromising integrity as crypto-Nazis, political hacks, unprincipled power seekers, obese grotesques, alcoholic or child-molesting cops. There have been a few intimations of another side to the coin - the warnings from Sue Jansen (who has every selfish motive to see Hoffman destroy himself and therefore no selfish motive to warn him) and the court reporter (who has no stake in the matter one way or the other) that he is on the road to making a horribly wrong decision, the hints about his relationships with women - but now we know the full truth about his womanizing and we are torn as he is himself by the immediate decision he must make. If he forces Judge Faulkner to admit that he took part in a conspiracy to circumvent Esherman's rights, his son will know the truth about him. If he does not, all pretense of his sterling integrity is smashed. The next moments display Richardson's seldom-seen flair for Hitchcockian suspense. Morning. Hoffman in his chambers, dangling a necklace with a heart-shaped pendant, gazing at a photo of his dead wife and their son. Zach and the crew innocently rowing on the river. The clock on the judge's desk approaching 8 A.M. Faulkner pacing and smoking nervously in the corridor outside the courtroom. Finally Hoffman takes the bench. "The court will call," he says, and then pauses until we are on tenterhooks before he finishes the sentence, "no further witnesses." Was his decision a selfish one? Has he fatally compromised his integrity in order to preserve his privileged status in the eyes of his son? Might the decision be seen as motivated at least in part by an unselfish desire to save from disgrace his former law partner and friend to whom he owes his own judicial appointment? The film gives us no clues either way, but by this point viewers do not see Hoffman in quite the same light as they saw him before. The die has been cast. The pedestal on which he stood has dissolved. From here on we listen to him not as believers taking in the priest's sermon, but critically. Judging the judge. Prosecutor Jansen begins her closing argument. Twelve citizens of Wasco County sat in this jury box for six horrible weeks and determined that Nolan G. Esherman tortured, molested, raped, and murdered seventeen innocent children ... . I don't think even this court is naive enough, or reckless enough, to believe [Esherman's and Mrs. Turnley's] testimony. If you do, if you dismiss this case, then you are carving in stone a message ... that our system of justice has failed.Hoffman's response, which also constitutes his decision, is the longest speech in the film, and the most chilling, and the only sustained attempt by any character in a law-related film of the past few decades to defend the spirit and ethos of the Warren Court. Naive and reckless? No. Naive and reckless is when I refuse to follow the law because I don't like the taste it leaves in my mouth ... . Once we start doing that, there is no law. A judge cannot pick and choose and fashion the law to reach an end he might personally desire. There are rules and they apply to everyone, even to Nolan Esherman. Our law is simple. If the police violate the law to obtain evidence, they don't get to use it. I can't imagine a tougher case for the application of that law. But I will not apologize for it and I will not accept the idea that our system fails when I follow it. And if you keep telling people our system fails when judges do their jobs, then pretty soon they're going to start believing the law doesn't matter anymore. And then there's just fear - and politics. Our law protects our freedoms. And it's my duty to apply that law even when it's painful. Even when it's tragic. There are times when we have to pay a price for our liberties. The testimony presented at this hearing leads the court to the clear conclusion that Detective Dagenpatt fabricated the anonymous informant. The search warrant was illegal and the photographs were illegally seized and the record in this case clearly shows that the defendant's confession was the fruit of the evidence illegally seized at the apartment. The court has no recourse but to order the photographs and the confession suppressed. The charges are dismissed. The defendant is discharged.Since we are listening to this speech with critical ears, we may notice that most of what Hoffman says could have been said by the Nazi judge played by Maximilian Schell in Stanley Kramer's Judgment at Nuremberg43 (except of course that Kramer doesn't believe in giving bad guys good lines). But the moment Hoffman has finished, critical thinking ends and hell erupts. Throughout the speech Richardson has cut between shots of Hoffman on the bench and the reactions of the three mothers and the bearded Foxmore and others in the courtroom: gasps of astonishment and rage, cries of "You bastard!" Esherman smiles gleefully. Amid screams from the other spectators, Stacy Foxmore's father stands up with a gun in his hand. His face contorted by inarticulate fury, he kills Esherman where he sits and also wounds the court bailiff before being gunned down himself. At the end of this brief burst of violence we see Hoffman sitting alone and stunned in his chambers. Leah stands in the doorway, and seems about to come in and console him. But then, in a gesture that leaves us with no doubt about who in her view did the right thing, she shuts the door between them. The final scene takes place in the now empty courtroom with Hoffman sitting alone and despairing in the vast chamber. Zach enters, sits next to him and says, "You had to let him go. You had to." Because we know that the boy is still ignorant of the truth about his father, we are compelled to look at his statement of support with the same critical eyes we fixed on Hoffman during his final speech. The film ends with a dark and quiet exchange between father and son. ZACH: When I was a little kid, I sat right here when you took the oath. You were up there. You seemed so high and far away. I was really proud of you then. HOFFMAN: [on the brink of tears] ... . It - was supposed to be an honor. an unusually absorbing dramatic venture ... [that] generally sticks close to the bigger issues being confronted and, despite its portrayal of Judge Hoffman as a sensitive and dedicated hero, avoids simplistic answers ... . Mr. Strauss's solidly intelligent performance, a fine supporting cast and Mr. Richardson's lean directorial style, wrapped in dramatic arrangements of shadows and light, add up to one of the more compelling movies of the season.44Judith Crist of TV Guide offered similar praise, saying that the film: offers a cogent consideration of judicial responsibility in the very face of vigilantism and public hysteria. Under Tony Richardson's direction, it is a taut, tense topical drama, as absorbing as it is stimulating ... . [A] thriller that is given complexity by the moral, legal and personal aspects of conflict between the letter and the spirit of the law. Strauss [is] at his best as the all-too-human jurist burdened by personal guilt and professional responsibility ... .45But like almost every other movie first shown on television, The Penalty Phase quickly vanished into limbo and, except for a few off-the-cuff remarks of my own,46 has never been the subject of any detailed discussion until now. A large part of this film's excellence and fascination stems from the densely layered characterization of Judge Hoffman. Indeed one might argue that at its deepest level the character harks back to perhaps the most profoundly tragic figure in all of Western literature, Sophocles's Oedipus Tyrannus.47 After all, both Oedipus and Hoffman pursue their relentless quest for the truth despite being warned again and again that it will destroy them, as inevitably it does. At another level Hoffman is a spiritual cousin to perhaps the most tormented judge in American literature: Captain Vere in Herman Melville's Billy Budd.48 If we agree with Richard Posner and other critics that Vere was a good man who had no choice but to follow the law and commit the moral outrage of sentencing Billy to be hanged,49 then perhaps Hoffman is a Vere for our own time, an equally good man who had no choice but to follow the law and commit the moral outrage of freeing the sociopath who tortured and murdered seventeen young girls. If like most present-day lawyers we are unversed in classical drama and high literature but know a bit more about contemporary popular fiction and film, the integrity and moral authority projected by Peter Strauss as Judge Hoffman also evokes Gregory Peck's unforgettable performance in To Kill a Mockingbird - so much so that we might well describe Hoffman as Atticus Finch in a black robe. But Atticus never faces a moral crisis and his situation, like that of most other protagonists in Warren-era law films, is presented in Manichean terms of right against wrong. But if these reflections tempt one to see Peter Strauss's character as a black-robed Atticus Finch, recall that throughout To Kill a Mockingbird, Atticus is seen through the uncritical eyes of his adoring young daughter. Judge Hoffman, like Atticus, is a widower and a single father, but The Penalty Phase never adopts Zach's or any other's idealized viewpoint. One of the strengths of the film's last moments is our awareness that Zach does not know his father at all. However many the similarities between Atticus and Hoffman, we are compelled by the last several minutes of The Penalty Phase to evaluate its protagonist with a stark objectivity that we could never bring to bear on Atticus Finch. In several respects Judge Hoffman is closer to Barney Adams, the reluctant defender played by Robert Mitchum in Man in the Middle,50 who does indeed face a moral crisis: whether he should destroy his career in a foredoomed attempt to save the life, not of a demonstrably innocent black man as in To Kill a Mockingbird, but of a warped and violent white racist who just as demonstrably committed a cold-blooded and brutal murder.51 We might also view Hoffman alongside another cinematic jurist who predates him by only two years. The protagonist of The Star Chamber is Judge Stephen Hardin (Michael Douglas), whose passion for justice is so overpowering that, after being forced to release clearly guilty sociopaths due to of police violations of their Warren Court-created rights, he joins a cabal of vigilante judges who conduct secret trials and impose sentences carried out by their private assassin. The first time the secret court makes a wrong decision and sends out the assassin to kill two sociopaths who in fact did not commit the child-murder for which they were freed on a technicality, Hardin's passion for justice explodes once more. As he races into the night to stop the hit man, the film mutates into a conventional action thriller, at the end of which Hardin has turned informer and is setting up his star chamber colleagues for arrest. The plot of The Penalty Phase, created as it is around a conspiracy by police, a prosecutor, and a judge to violate a sadistic sociopath's constitutional rights, and the character of Judge Hoffman, created as it is around a passion not for justice but for law, might well be understood as explicit condemnations of The Star Chamber - and also of Dirty Harry, ... And Justice For All, and of all the other films of the past few decades that are built around an act that is justified in every way except under the law. Time has been a friend to Richardson's film during the years of its obscurity. A man who combined a brilliant mind, legal training, great charm, charisma, and attractiveness to women but who was later exposed as a compulsive womanizer and, far worse, as almost totally devoid of integrity came to prominence a few years after The Penalty Phase was made and has left the national stage (probably not for long) as this paper was being written. For a viewer who has seen the film any time in the last several years or sees it for the first time today, the first person Judge Hoffman is likely to bring to mind is not Oedipus or Captain Vere or Atticus Finch or any other fictional character, but is Bill Clinton. But anyone who makes this connection goes against the grain of the film, which compels us to reject the view that Judge Hoffman is unequivocally right, but never invites us to see him as a hypocrite with a personal agenda. Alone among all the law-related films that I have seen, The Penalty Phase seems to me best understood in terms of the theory of classical tragedy formulated in the early nineteenth century by the great philosopher G.W.F. Hegel, who realized that at the center of the greatest tragedies of Aeschylus and Sophocles we find not a tragic hero but a tragic collision, and that the conflict is not between good and evil but between one-sided positions, each of which embodies some good ... . One could not wish for more perfect illustrations of collisions in which neither side is simply wicked and some moral claims are present on both sides than we find in The Oresteia and Prometheus [by Aeschylus]. Indeed, the very words "right collides with right' are encountered in The Libation Bearers [which is the second play in the Oresteia trilogy].52And one could not wish for a more perfect example of a Hegelian tragic collision than Tony Richardson and Gale Patrick Hickman gave us in The Penalty Phase. While the seminal films of both the Warren and the anti-Warren eras tend to present moral and juristic conflicts in terms of Manichean simplicity, this one is artfully designed so that we the viewers are left divided as we see both sides of the coin simultaneously - an all but miraculous feat that guarantees The Penalty Phase an honored place in all serious discussions of the films that take judges and justice and lawyers and laws as their province. Of the three best moments in my life, one was the day my first son was born, the second was the day my second son was born, and the third was day [in May 1985] I finished putting all the white-out on the last page and drove up to Los Angeles to the Writers Guild and registered my script. Jalon, supra note 6. 12. NORMA RAE (20th Century Fox 1979). 13. Biographical information on Richardson comes from THE CINEMA OF TONY RICHARDSON, supra note 4. See also DON RADOVICH, TONY RICHARDSON (1995). 14. HENRIK IBSEN, PEER GYNT (Anne Bambrough trans., Faber and Faber 1990) (1875). 15. JOHN WEBSTER, THE DUCHESS OF MALFI (Dympna Callaghan ed., St. Martin's Press 2000) (1623). 16. LOOK BACK IN ANGER (Woodfall Film Productions 1958). 17. THE ENTERTAINER (Woodfall Film Productions 1960). 18. A TASTE OF HONEY (Bryanston 1961). 19. THE LONELINESS OF THE LONG DISTANCE RUNNER (British Lion Film Corp. 1962). 20. SANCTUARY (20th Century Fox & Darryl F. Zanuck Productions 1961). 21. TOM JONES (Woodfall Film Productions 1963). 22. THE LOVED ONE (Filmways Pictures & MGM 1965). 23. HAMLET (Filmways Pictures & Woodfall Film Productions 1969). 24. LAUGHTER IN THE DARK (Woodfall Film Productions et al. 1969). 25. A DELICATE BALANCE (American Film Theatre 1973). 26. JOSEPH ANDREWS (Woodfall Film Productions 1977). 27. COUNT THE HOURS (Ben-Bo Productions 1953). 28. THE WRONG MAN (First National Pictures Inc. & Warner Bros. 1956). 29. TRIAL (MGM 1955). 30. 12 ANGRY MEN (Orion-Nova Productions & United Artists 1957). 31. INHERIT THE WIND (Lomitas Productions, Inc. 1960). 32. TO KILL A MOCKINGBIRD (Universal International Pictures 1962). 33. Otto Preminger's ANATOMY OF A MURDER (Columbia Pictures 1959) is often cited in the idealistic column, mainly perhaps because it's difficult to think of its star Jimmy Stewart in any other kind of role. But a strong case can be made that this story of how Stewart, as shrewd country lawyer Paul Biegler, manipulates the "irresistible impulse" doctrine so as to secure an acquittal for a man (Ben Gazzara) who seems to have cold-bloodledly shot down his wife's lover is among the most cynical of the Warren era. Whether COMPULSION (20th Century Fox 1959) should count as idealistic or not depends, I suppose, on one's feelings about the death penalty. 34. For a study of one of one of the least known law-related films of the period, which is also one of the films most finely calibrated to the period's idealistic ethos, see Francis M. Nevins, Man in the Middle: Unsung Classic of the Warren Court, 30 U.S.F. L. REV. 1097 (1996). 35. DIRTY HARRY (The Malpaso Co. & Warner Bros. 1971). 36. ... AND JUSTICE FOR ALL (Columbia Pictures 1979). 37. CRIMINAL LAW (Helmdale Film Corp. & Northwood Pictures 1988). 38. PRESUMED INNOCENT (Mirage & Warner Bros. 1990). 39. THE BONFIRE OF THE VANITIES (Warner Bros. 1990). 40. CAPE FEAR (Amblin Entertainment et al. 1991). 41. Again, just which recent films should properly be classified as swimming against the tide is a matter on which reasonable minds can differ and which is beyond this paper's scope. Most people would put THE VERDICT (20th Century Fox 1982) in the positive column; some would include THE ACCUSED (Paramount Pictures 1988), A FEW GOOD MEN (Castle Rock Entertainment 1992), and A CIVIL ACTION (Touchstone Pictures 1998), or some combination of the three. But in most of the movies that are not clearly within the cynical mainstream, the filmmakers hedge their bets, seeking like savvy politicians to be on both sides of a controversial issue at the same time. In THE STAR CHAMBER (20th Century Fox 1984), Michael Douglas plays a judge who is so outraged by having to let obviously guilty sociopaths loose on technicalities that he joins a cabal of jurists who render their own verdicts and enforce them with a hit man. This sounds like it belongs squarely in the post-Warren Court, anti-Warren Court column, but by the end of the film Douglas has informed on his fellow rogue judges and they are about to be arrested. In A TIME TO KILL (Warner Bros. 1996) Matthew McConaughey plays a splendidly idealistic young lawyer representing a black client in the racist South. This sounds like a throwback to Atticus Finch idealism, but unlike Brock Peters in To Kill a Mockingbird, the client played by Samuel L. Jackson is guilty - and, by publicly blowing away the white scum who had raped and beaten his little daughter, he is all but indistinguishable from other justified cinematic saboteurs of the legal system like Al Pacino in ... And Justice for All and Nick Nolte in Scorsese's Cape Fear. 42. It takes very little experience with criminal trials to realize that no defense lawyer, even an incompetent determined to lose the case, would allow a client to come to court looking so much like a sociopath. What we with legal training have to remember is that Tony Richardson faced the daunting challenge of making viewers hate Nolan G. Esherman from the get-go and keep hating him throughout the film even though the character has an absolute minimum of dialogue and is confined to his seat except for one scene. Still and all, The Penalty Phase would have been an infinitely more subtle and daring film if the director had presented Esherman as a nondescript man in a nondescript business suit, subliminally evoking the trial of Adolf Eichmann and Hannah Arendt's discussion of the banality of evil. 43. JUDGMENT AT NUREMBERG (Roxlom & United Artists 1961). 44. John J. O'Connor, Penalty Phase Looks at Problems of a Judge, N.Y. TIMES, Nov. 18, 1986, at C22. 45. Judith Crist, TV GUIDE, Nov. 15, 1986, at Ab. 46. See Francis M. Nevins, Reel Justice: The Courtroom Goes to the Movies, 20 LEGAL STUD. F. 145, 146 (1996) (book review); Francis M. Nevins, Using Fiction and Film as Law School Tools, in LEGAL EDUCATION FOR THE 21ST CENTURY 184 (Donald B. King ed., 1999). 47. See WALTER KAUFMANN, TRAGEDY AND PHILOSOPHY (1968), especially the chapter entitled "The Riddle of Oedipus." Walter Kaufmann explores the aspect of the play that connects it with The Penalty Phase, which he describes as "the tragedy of the curse of honesty." Id. at 120 (emphasis omitted). 48. HERMAN MELVILLE, BILLY BUDD, SAILOR AND OTHER STORIES (Penguin Books 1986) (1844). 49. See RICHARD A. POSNER, LAW AND LITERATURE 165-73 (1988). For a radically opposed and almost totally negative view of Captain Vere, see RICHARD H. WEISBERG, THE FAILURE OF THE WORD 133-59 (1984), and RICHARD H. WEISBERG, POETHICS AND OTHER STRATEGIES OF LAW AND LITERATURE 104-16 (1992). 50. MAN IN THE MIDDLE (Belmont et al. 1964). 51. See Nevins, supra note 34. 52. KAUFMANN, supra note 47, at 200-12. |
