We have lost too, too much. Don’t let history disappear.

I am not sure at all that my students understood that Wednesday morning last November that we were living in an extraordinary historical moment, that I could not have imagined growing up that a black would be elected President.  I try too to explain to my son how horrific a year 1968 was to me as a boy of almost 9.  41 years ago tomorrow Martin Luther King was killed.  Two months before King’s assassination, the Viet Cong began the Tet Offensive, which made plain to to most Americans that winning the Vietnam War would require more resolve than it was worth. Less than one month after King’s assasination, a combination of a nationwide workers’ strike and student uprisings led to street fighting in Paris that verged on genuine revolution.  One month after that  Bobby Kennedy was shot dead just moments after winning the Democratic primary in California, thereby appearing to have gained the electoral momentum to get the party’s nomination and, I think likely, to be elected President on a strong anti-war platform.  But the Democrats imploded later during their convention in Chicago, where Mayor Daly loosed his police force on anti-war protestors, whom the cops outnumbered 5 to 1.  In August, Soviet tanks rolled into Prague and crushed the brief brigtht moment known as the Prague Spring, a moment that the SolVidarity uprising 21 years later in Gdansk echoed, an echo that made anyone who remembered 1968 skeptical that 1989 would be any different.  In November of 1968 Richard Nixon was elected President, which resulted in an escalation and expansion of the war in Southeast Asia (and the straight line from there to the Khmer Rouge’s genocide in Cambodia) and an administration which used its governmental powers to silence people it explicitly identified as its “enemies” and engaged in criminal enterprises to ensure it would remain in power. It was a very scary time.  Today is no golden age, but it’s much, much better than 1968.  We need to remember that.  And, believe it or not, historical memory is an important issue in arguments over the rights of copyright holders to control the use of their works.

Anatomy of a Murder, or How to Coach a Witness

In the Michigan Bar Journal, Frederick Baker, Jr. writes “Reflections on the 50th Anniversary of Anatomy of a Murder (pdf),” noting the movie‘s realism and its creation of the law thriller as a whole new literary genre:

[C]onsider “the lecture,” in which Polly [the defense attorney hero] tells his client the law so that Mannion [the defendant in a murder trial] could tell him the facts that might sustain an insanity defense. It is such a deft example of how a lawyer can walk the fine ethical line between coaching a client and counseling the client on what testimony might offer salvation that it is included in Ladd and Carlson’s evidence text, which is where I first encountered Anatomy of a Murder, while studying evidence with Ronald Carlson.

John [Voelker] literally created a new fictional genre with Anatomy. Before then, no novel had so truly depicted the actual preparation and trial of a case. The Grishams and Turows who followed all owe a debt to John, who wrote a novel that was both true to life and true to himself.

As Michael Asimow writes, both the novel and the film version (which he describes as (probably the finest pure trial movie ever made) are filled with legal and ethical issues that resonate to this day:

In his famous “lecture,” Biegler [the defense attorney in the movie] skates close to the line of unethical witness coaching—that is, knowingly altering a witness’ story about the events in question. When Biegler first meets Manion [his client] in jail, he manages to overcome the client’s intense mistrust and then the discussion turns to whether the client has a defense. How far can counsel go in suggesting a defense to a client who hasn’t a clue? And should the lawyer discuss possible defenses before asking the client what happened? Because once the client has told the attorney his story, that freezes the client’s version of the facts; it’s too late to mold the facts to fit a particular defense.

Clearly it is improper to assist the client to make up facts that never occurred. . . . But it’s perfectly OK (indeed obligatory) for counsel to interview a witness and to discuss his testimony in order to assist the witness to testify effectively. And surely it is appropriate to tell a client what the law is, even if that suggests a defense to the client that he might not have realized was available. The problem is that a clever attorney can convey an implicit message to a witness that alters the witness’ testimony—without ever coming out and actually telling the witness to do it.

In the film, Biegler is obviously quite aware of the limits on witness coaching but most observers think he stayed on the ethical side of the line. Without first asking Manion exactly what happened, he tells Manion about the categories of justification and excuse and rules out each possible claim. For example, killing in the defense of another is a possible justification—but not an hour after the purported rape occurred. Biegler also nixes the “unwritten law” which allows you to kill someone whom you discover in flagrante with your spouse. Not recognized as a defense in Michigan, unfortunately.

So Biegler keeps Manion guessing until Manion says “I must have been mad.” Sorry, bad temper isn’t a defense. “No,” says Manion, “I must have been crazy. ” “Well, Lieutenant,” replies Biegler, as he steps from the room, “in the meantime, see if you can remember how crazy you were.” So the client comes up with the defense, albeit with a bit of gentle prodding from the attorney, and either remembers or fabricates the facts to support that defense. We’ve screened this scene before quite a few audiences, and hardly any attorneys have ever voted to discipline Biegler, even though it seems quite likely that Manion’s testimony is different than it would have been in the absence of the lecture and that Biegler intended exactly that.

In the book however, Biegler goes a step further. The suggestion for the insanity defense comes from Biegler, not from Manion. Speaking in the first person, Biegler recounts his conversation with his client: ” ‘Then, finally there’s the defense of insanity.’ I paused, and spoke abruptly, airily: ‘Well, that just about winds it up.’ ” Then Manion starts asking questions about insanity. Biegler plays dumb and answers the questions, but tells the reader: “My naivete was somewhat excessive; it had been obvious to me from merely reading the newspaper the night before that insanity was the best, if not the only, legal defense the man had. And here I’d just slammed shut every other escape hatch and told him this was the last. Only a cretin could have missed it, and I was rapidly learning that Lieutenant Manion was no cretin.” (Pp. 45-46)

It can be argued that, in the book’s version, Biegler overstepped the line by coaching his client right into a made-up defense. . . . The movie, however, is more subtle. The client comes up with the defense, but obviously with a lot of covert help from his lawyer.