LAW AND THEATER
“ANATOMY OF A MURDER,” PART II (THE PLAY)
How often do you watch a legal drama on television or at the movies, and say something to the effect of, “Oh, come on! That’s ridiculous!” You don’t have to have gone to law school to spot the most egregious examples of dramatic license (TNT’s recent train wreck Franklin & Bash leaps to mind). So it is refreshing when you find a work that gets the details right. “Anatomy of a Murder” gets most of the details right, and is a riveting courtroom drama, to boot.
I went through the historical background of “Anatomy of a Murder” a couple of weeks ago. It’s taken me a while to complete the analysis of the play, primarily because there is so much to discuss. The simple fact is that “Anatomy of a Murder” is incredibly accurate, all things considered. This is one of the benefits of: (1) well-written source material written by an author (John D. Voelker) who had a strong foundation in both literature and law; and (2) the fact that Voelker doesn’t appear to have strayed too far from the actual facts of the case. Based on the limited research I’ve been able to conduct, it appears that other than changing the names of the participants and the places, he stuck to the facts.
I’ll take the synopsis from the front of the play itself:
Defeated for re-election after serving six years as District Attorney of Iron Cliffs County, Paul Biegler is dispirited at the prospect of having to establish himself as a defense attorney. But the first case that comes his way is a sensational one: he takes on the defense of an army lieutenant accused of the cold-blooded murder of a bartender, who had allegedly raped the lieutenant’s wife. Biegler’s handling of the case is complicated by the intense dislike he develops for his client, as well as by the distractions provided by the lieutenant’s seductively attractive wife. Aided only by an aging, retired, boozing lawyer friend, Parnell McCarthy, Biegler fights desperately against the forces of the state, as represented by a shrewd member of the Attorney General’s staff from the state capital, as well as by the slick young man who has taken away Biegler’s job as D.A. It is a see-saw battle all the way, one dramatic courtroom confrontation following another, as Biegler uses every device available to him in evidence and law to save the lieutenant’s neck. Victory or defeat? The irony is that there’s a measure of both for the new attorney for the defense.
The play is divided into three acts. Each act focuses on a different aspect of the process. For the sake of simplicity, I’ll label them as follows: (1) Act I: Discovery; (2) Act II: The Prosecution; and (3) Act III: The Defense. Warning: Spoilers ahead (fairly warned by ye, says I).
Act I: Discovery
The first act of the play deals with the initial phases of the case, what I will call, for lack of a better term, Discovery. Paul Biegler is made aware of the case by his friend and mentor Parnell McCarthy, a retired defense attorney (there are hints that Parnell has a bad reputation in the local legal community due to his drinking). He meets Lieutenant and Mrs. Manion, and eventually agrees to take the case. It is clear that Paul and Lt. Manion do not particularly like each other. Paul and Parnell begin investigating the facts and the law, and begin formulating a defense (not guilty by reason of temporary insanity). The act ends with Paul and Parnell getting the results of a psychiatric examination of Lt. Manion, that, combined with language from the case of People v. Durfee (29 N.W. 109 (Mich. 1886), for those who care), gives them the hope that their insanity defense might work.
This act illustrates many issues that lawyers face when first taking on a case, and does it in an entertaining, rather than pedantic, way. Among these issues are:
The Financial Question – There are two parts to this issue. First, as Parnell points out early in the play, Paul, like many solo practitioners, has a major cash flow problem. He needs paying clients in order to survive. As Parnell puts it, Paul can’t catch enough fish to survive the winter.
The second part of the Financial Question deals with how Lt. Manion is going to pay him. Manion admits early in their first meeting that he doesn’t have any money. Eventually, Paul and Manion come to terms. Manion agrees to sign a promissory note and pay off the fee in installments. Paul and Parnell are on their way to get Manion’s signature on the promissory note when they find out that the Manions have skipped town (see Act III, below).
This is one of the few minor irritants I have with the show, from a legal standpoint. I don’t know of a single attorney who would wait until the end of his or her representation of a client to work out the financial arrangements. Even if Paul and Lt. Manion agreed to sign a promissory note, there is no logical reason not to sign the note prior to the trial. This just doesn’t ring true to me.
Dealing with Difficult Clients – Sometimes we just don’t get along with our clients. It is apparent from their first meeting that these two men do not really get along. Lt. Manion is cool and aloof. I get the feeling that he is holding something back throughout the play (which is kind of the point). There really is no easy solution to this problem, short of dropping the client. In this situation, of course, Paul doesn’t have that option (as noted above, he needs the money).
Theory of the Case – This is a necessary part of every legal action. Paul and Parnell have to come up with a theory of the case. Paul considers and rejects several options (mistaken identity, self defense, defense of habitation, defense of property, defense of relatives or friends, to prevent a felony, intoxication), before settling on the insanity defense.
Paul walks an ethical tightrope in this discussion. Manion suggests that perhaps he caught Quill in the act of raping his wife, as he didn’t tell the police one way or another. Paul immediately tells him that that wouldn’t work, because Manion told Paul that he didn’t catch Quill in the act. In addition, Paul has to be very careful to ensure that Manion really was temporarily insane. Each state’s rules of professional conduct prohibit an attorney from making false or bogus claims.
In Utah, there are several sections of the Rules of Professional Conduct that apply. For example, Rule 3.1 states:
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good-faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
Likewise, Rule 3.3 states, in part:
(a) A lawyer shall not knowingly:
(a)(1) make a false statement of act or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(a)(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6 [Rule 1.6 deals with confidential information].
And Rule 3.4 states, in part:
A lawyer shall not:
(a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;
(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of the an accused….
Michigan’s corresponding Rules of Professional Conduct are identical. The effect of these ethical rules is that, if the trial were held today, Paul could not present the insanity defense if he did not have a good faith belief that Lt. Manion was temporarily insane at the time of the shooting.
Evidence Necessary to Prove the Theory – The bulk of Act I deals with Paul and Parnell gathering the evidence they need to make their case. Paul visits the tavern where the shooting took place and interviews Alphonse Paquette, the bartender and one of the prosecution’s star witnesses. They discuss the necessity of getting an expert witness to testify that Lt. Manion was insane at the time of the shooting (and they discuss how to pay the witness fee). And they discuss the inadmissibility of the results of a lie detector test as evidence.
Act II: The Prosecution
Act II begins with the jury being sworn in and the prosecution’s opening statement. This is followed by the testimony of the following witnesses: (1) Dr. Homer Raschid, who conducted the autopsy on the victim, Barney Quill; (2) Warren Burke, who took photographs of the murder scene, Quill’s body, and Mrs. Manion; (3) Paquette; and (4) Detective Julian Durgo, the investigating officer. The testimony of other prosecution witnesses is skipped (mainly because their testimony would be duplicative). In addition, the prosecution introduces affidavits from other witnesses to the shooting who were unavailable to testify at trial. Paul’s primary goal throughout this part of the trial is to get the jury to believe that Quill did indeed rape Mrs. Manion.
Again, there are a number of valuable lessons that lawyers can take away from this act, particularly handling witnesses on the stand, including:
– Laying the proper foundation for a witness’ testimony.
– When and how to object properly.
– How to conduct a proper cross-examination (Paul’s cross-examination of Paquette is particularly effective).
There is one rather troubling aspect of this act, in my opinion. There are times when both Paul and Dancer get a little too emotional, in my opinion. It becomes less about justice, and more about ego. I was left wondering how much of Paul’s actions are based on emotion, and how much was just grandstanding. Either one is troublesome.
One of the biggest problems a lawyer can face is to let a case become a personal battle with the other side. I’ve seen cases where the attorneys on both sides let the dispute become personal. It rarely works out well for the parties on either side.
Act III: The Defense
The final Act begins with Paul’s opening statement, and continues with the testimony of the three defense witnesses: (1) Mrs. Manion; (2) Lt. Manion; and (3) Dr. Matthew Smith, the Army psychiatrist who examined Lt. Manion. In addition, Mr. Paquette, the bartender, is recalled to testify. Finally, the prosecution calls a rebuttal witness, Dr. W. Harcourt Gregory. The play skips the closing arguments, and goes straight to the verdict. The jury finds Lt. Manion not guilty. The play ends with Paul and Parnell going to the trailer park where the Manions live in order to get Manion to sign a promissory note for his legal fees, only to find that the Manions have already left for parts unknown.
From a legal standpoint, the highlight of Act III is probably the testimony of Dr. Gregory, the prosecution’s rebuttal witness. Dr. Gregory testifies that the examination by Dr. Smith, the defense’s expert witness, is faulty, and that Lt. Manion was sane at the time of the shooting. Paul’s primary job on cross-examination is to impeach Dr. Gregory’s testimony. He does so by challenging the basis for Dr. Gregory’s conclusions:
Paul: You have ventured an opinion on the sanity of this man that night without the benefit of any personal observation or tests or history whatever, isn’t that correct?
Dr. Gregory: Yes, sir.
Paul: Doctor, is that normal and accepted psychiatric practice?
Dancer: I object to that. Counsel asked a question and got an answer, and now he doesn’t like it.
Judge Weaver: The objection is overruled. Answer the question.
Dr. Gregory: No, it is not normal psychiatric practice.
The current federal standard for expert witness testimony comes from the case of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Federal Rule of Evidence 702. Under this standard, the judge acts as a “gatekeeper,” and must make a preliminary determination of the admissibility of any proposed expert testimony. According to Rule 702, an expert witness may only testify if the testimony: (1) is reliable; (2) based on sufficient facts or data; and (3) has been reliably applied to the facts of the case.
Had the case been tried today, Dr. Gregory’s testimony would probably have been excluded by a motion in limine prior to trial. By the same token, the prosecution would probably have demanded that Dr. Gregory be allowed to conduct an examination of Lt. Manion prior to the trial. In that case, his testimony would probably be admitted.
Both the real case and the play take place prior to the Daubert decision in 1993 or the adoption of the Federal Rules of Evidence in 1975. The governing standard at the federal level in the 1950s was the Frye standard, based on the 1923 case of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Under this standard, scientific evidence must be “generally accepted” by a meaningful segment of the associated scientific community in order to be admissible.
This is reflected in Paul’s question to Dr. Gregory concerning the “normal and accepted psychiatric practice.” By admitting that it is not, Dr. Gregory admits that his testimony fails the Frye standard. Paul does a very effective job of dismantling Dr. Gregory’s testimony on cross-examination. He asks pointed leading questions, to which Dr. Gregory can only respond with “yes” or “no” answers. He uses those questions to get Dr. Gregory to commit to his prior testimony. And finally, he uses those questions to get Dr. Gregory to admit that his opinions are not based on accepted psychiatric practice. In effect, he gets Dr. Gregory to impeach his own testimony.
Neophyte Lawyer’s Review
As a courtroom drama, this is one of the best plays I have ever read. It gets almost all of the details right, and the ones it doesn’t are relatively minor, for the most part. Again, this may stem from the fact that Voelker’s novel is a very thinly-veiled depiction of the actual Johnson case, and since Voelker was the defense counsel, he was in a position to get all of the details correct. When Elihu Winer adapted the novel for the stage, he wisely left most of these details intact.
One of the strengths of the play is how it handles the whole insanity defense issue. Neither the audience nor Paul is ever quite sure whether Lt. Manion was insane at the time of the shooting, or if he is just putting on a front. The evidence isn’t really conclusive one way or another, the expert witnesses disagree, and Lt. Manion is such a creep that it is hard to believe anything he says, even if it is the truth. Even the ending is ambiguous, although it seems to support the idea that Manion got away with murder.
The play also wisely skips all of the duplicative testimony, focusing on the major witnesses. I think this is a wise move. The cast is large enough as it is, and keeping the testimony of the eight witnesses who do testify is going to be tricky enough for most audiences.
I do find it a little odd that the closing arguments are also skipped. Closing arguments are often the most dramatic elements of a trial, as the lawyers take their final opportunity to persuade the jury. Perhaps time constraints were an issue here. The play is fairly long as it is, with three acts and two intermissions.
All in all, “Anatomy of a Murder” (the stage version, at least) deserves its reputation as one of the best legal dramas. I give it a solid nine mockingbirds out of ten on my Mockingbird Scale, if only for Paul’s dismantling of the prosecution’s expert witness, Dr. Gregory: