00;00;00;21 - 00;00;32;29

Jonathan Hafetz

Hi, I'm Jonathan Hafetz, and welcome to Law on Film, a podcast that explores the rich connections between law and film. Law is critical to many films. Films, in turn, tell us a lot about the law. In each episode, we'll examine a film that's noteworthy from a legal perspective. What does it get right about the law and what does it get wrong?

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Jonathan Hafetz

How is law important to understanding the film? And what does the film teach us about the law, and about the larger social and cultural context in which the law is embedded? Our film today is 12 Angry Men, a 1957 film directed by Sidney Lumet with a screenplay by Reginald Rose and starring a truly all star cast. With Henry Fonda in the lead and supporting roles by Lee Jacob, Jack warden and a host of legendary character actors.

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Jonathan Hafetz

The film, which was shot in three weeks, is set in New York, and it tells the story of a jury trial of a young man who is accused of murdering his father. And essentially, the film depicts the jury deliberations around the case. And what starts out as what seems to be an overwhelming slam dunk case in favor of the government, with all the jurors quickly ready to vote to convict.

00;01;30;10 - 00;01;59;15

Jonathan Hafetz

There's one holdout juror, played by Henry Fonda, who slowly turns the jury around by forcing them to confront their prejudices and to probe the facts more carefully and to take their civic role seriously. And ultimately, the man is acquitted. And in what is a very emotionally charged and riveting film. Our guest today is Elkin Abramowitz. Elkin is a partner at Moor Villa Abramowitz in New York and a leading white collar criminal defense lawyer in the country.

00;01;59;16 - 00;02;24;08

Jonathan Hafetz

Elkins built his career as a trial lawyer, representing prestigious clients who have fallen into high stakes personal and professional crises, both inside and outside the courtrooms. He has a long list of clients. Probably most famously, he represented Woody Allen and has received numerous awards for his work, including awards from the Office of Appellate Defender, the New York Council of Defense Lawyers, the New York Law Journal.

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Jonathan Hafetz

He's been named since the inception of its award by chambers USA as a leading lawyer in the white collar and government investigation field. He also has a distinguished career in public service before entering private practice in 1979. Elkins worked for New York City agencies, including the Mayor's Office. He served for the House of Representatives, and he was chief of the Criminal Division in the U.S. Attorney's Office for the Southern District of New York.

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Jonathan Hafetz

Elkins, a fellow of the American College of Trial Lawyers and a former director of the New York Council of Defense Lawyers. He's the coauthor of publications on white collar crime and writes a column on that subject for the New York Law Journal. Elkins been described as an unquestioned dean of the field, with a potent combination of experience, intelligence, and composure, and one of the best trial lawyers in the nation.

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Jonathan Hafetz

He's been called a supreme strategist and tactician who's represented a host of well-known individuals and corporations over the course of his illustrious career to date. We're truly fortunate to have him on law and film, one of the great trial attorneys in the country discussing one of the great courtroom dramas. Welcome, Elkins.

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Elkan Abramowitz

Thank you. That's an introduction my mother would have given I appreciate that.

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Jonathan Hafetz

I always try to channel a guest. Mother. It's a good idea, right?

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Elkan Abramowitz

Yes. There it is. I approve.

00;03;40;17 - 00;03;52;26

Jonathan Hafetz

So, I mean, this is a great film, I think, and it holds up well today. So let's just start out. Does the film accurately portray the jury system at the time 1957. And how accurate is it today?

00;03;52;29 - 00;04;17;29

Elkan Abramowitz

Well, I think it certainly portrayed it as of 1957. And the reason that it's really still resonates today is that other than some obvious changes which we can discuss, the method of going through a case where there are people to discuss the evidence in the case coming from all different backgrounds, is very much what the jury system remains and always will be.

00;04;18;03 - 00;04;49;17

Elkan Abramowitz

The major difference today would be it's almost impossible to have a jury of 12 men, and certainly of 12 white men. It's inconceivable. And I mean this from all parts of the country. I don't mean a wholly New York. And, secondly, there would be air conditioning in the jury room. So that whole aspect of the sweat and the, the annoyances of the weather might not play a role in today's juries, but other than that, it was spot on.

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Jonathan Hafetz

Yeah. I mean, the heat does. I mean, it's almost like a 13th person in the jury room and plays such a significant role in the film.

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Elkan Abramowitz

It does. And presumably to get that kind of heat from screaming and yelling at each other. But today it would be with air conditioning and, and not, with a fan that didn't work.

00;05;07;03 - 00;05;20;21

Jonathan Hafetz

So in a way, it's accurate in terms of the composition of the jury, I guess, in terms of the economic and professional diversity. But on the other hand, it's dated in that it's all men, it's all white men, which would not be the case today.

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Elkan Abramowitz

Correct. And I say that meaning in not only New York, I mean all over the country, you'd never get a jury like that. In fact, most of the juries are now, the last 5 or 6 years that I've been involved with juries, mostly women. Now, not all women, but mostly women, which was not true men in the in the 1950s.

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Jonathan Hafetz

Am I correct that women were eligible to serve, but they weren't required to serve, so that maybe diminished the jury pool for women on the jury?

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Elkan Abramowitz

Correct. It's very funny. I mean, people, always moan and groan about getting notices for jury service. But if you take every survey I've read about jury service people after they've served have said it's the most one of the most exciting parts of their lives. They really enjoyed the service of it, and they really enjoyed performing it.

00;06;13;17 - 00;06;29;09

Elkan Abramowitz

But it's something that nobody looks forward to being called. And women routinely got out of it. Lawyers got out of it, doctors got out of it. A lot of people who now are required to go for jury service were, in the 50s, permitted to be excused almost automatically.

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Jonathan Hafetz

It's interesting how that changes happened. And I'd say historically too, for especially for black Americans, I mean, it was a critical aspect of fighting for civil rights, was the right to serve on a jury. Although today, as you say, people get the jury notice or many people get the jury notice and be like, you know, why do I have to go there?

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Jonathan Hafetz

Right?

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Elkan Abramowitz

Right. And, I have to tell you an anecdote. If I have the time. My last one of my last trials was a very long one. Lasted five months. And, you know, to pick a jury in the case that the judge announced is going to last for five months. Not easy. This was before the pandemic.

00;07;03;06 - 00;07;23;20

Elkan Abramowitz

So people were not used to working remotely, and therefore they would have to give up an office job for 4 or 5 months. And, you can imagine it was hard to pick one. One of the jurors that was selected was a bus driver whose union, wrote a letter saying we cannot pay him beyond, four weeks.

00;07;23;22 - 00;07;47;11

Elkan Abramowitz

So trial had already started before the union person wrote the letter. The judge called the juror in and said, look, we have alternates. Your union is not going to pay you after four weeks. You can be excused. He says, I don't want to be excused. This is the most significant thing I've ever done in my life. And I we were all stunned at that.

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Elkan Abramowitz

And it was so moving that I saw some one get, teary eyed thinking about it. And this was only after two weeks of sitting in, I don't think he wanted to sit in the first place, but once he started the trial, once he realized how serious the, task was, he really got into it and said, I can't imagine that this is less important than what I'm doing.

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Elkan Abramowitz

So he's at least five months and he didn't get paid, which was interesting.

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Jonathan Hafetz

And you had to quit. All right. Yes, yes, yes. So. Well, yeah, I did.

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Elkan Abramowitz

We could have won the case, probably without him, but I think I liked him when I picked him, and, I would have been unhappy to lose him. And I thought we were going to lose him, but he didn't want to leave, which I thought was extraordinary. And surveys have shown people, view this experience as one of the most important experiences of their lives.

00;08;40;27 - 00;08;54;28

Jonathan Hafetz

It's quite a story. And, and you can kind of see that in the film with at least some of the jurors, but maybe not the ones who are most resistant to being there, although they have come to their own realizations. But some of the other ones, you can really see this participation in this democratic process, especially the naturalized citizen.

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Jonathan Hafetz

He gives his moving speech to the jury about the during democracy. He was the inspiration supposedly for Justice Sotomayor, having seen the film to go to law school.

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Elkan Abramowitz

Well that's great. Well, well, E.J. Marshall, who plays a kind of rigid finance guy, and I could talk about him, as a stereotype, because he is one for many jurors. He was my inspiration because he had ended up playing a role in the 1960s, 50s, as a defense lawyer. And in The Defenders, which is a case which inspired me to go to law school.

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Elkan Abramowitz

So,

00;09;29;23 - 00;09;42;10

Jonathan Hafetz

There you go. And that was written by Reginald Rose, who did the screenplay for 12 Angry Men. So. Right. That's interesting. Right. So he's he's the skeptical juror. I want to go back to him because I think he's kind of a pivotal juror in some ways.

00;09;42;13 - 00;10;05;04

Elkan Abramowitz

He's very pivotal. And, and, and the comparison between him and, Fonda is important in their way of thinking. Both intelligent, both extremely dedicated, but both, have bring to the jury table a type of thinking that has to be discussed out before it could get resolved and let it well play.

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Jonathan Hafetz

Now, since we're talking about him. So I'm going to play the clip with Henry Fonda, talking about the Beyond Reasonable Doubt standard, which is central to criminal trial and central to the film. So I'd like to get your thoughts on the standard and how it's depicted in the film. Doesn't do a good job of capturing it, but the context here is Henry Fonda has is responding to an outburst of racial prejudice by one of the jurors, Ed Begley.

00;10;30;04 - 00;10;35;03

Jonathan Hafetz

And, he he gives his speech and let me play this clip for you. Now.

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Movie Dialogue

It's always difficult to keep personal prejudice out of a thing like this. Where ever you run into a prejudice always obscures the truth. I don't really know what the truth is. I don't suppose anybody will ever really know. Nine of us now seem to feel that the defendant is innocent. But we're various gambling on probabilities. We may be wrong.

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Movie Dialogue

We may be trying to let a gentleman go free. I don't know, nobody really can that we have a reasonable doubt. That's something that's very valuable in that system. No jury can declare a man guilty unless it's sure we nine can understand how you three are still so sure. Maybe you can tell us. I'll try.

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Jonathan Hafetz

And the film pivots to e.g. Marshall who of the remaining holdouts by that point. This is late in the film, so there are now three holdouts. Of the remaining three, he's the one who has genuine doubts about the case. The other two, Lee Jacob and Jack warden, have their own kind of personal reasons, which are not kind of based in grounded reason.

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Jonathan Hafetz

But let me ask you about them. We find a speech about the standard and then talk about e.g. Marshall and what's going on between them.

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Elkan Abramowitz

Each Marshall represents a type of very intelligent juror who would be, in the mix of selection and who you wouldn't want on a jury if you're looking for intelligent jurors, but who is somebody that has to have an answer? There's a yes or a no. There's no maybe there's no gray accountants or like that engineers or like that.

00;12;08;29 - 00;12;31;18

Elkan Abramowitz

Some finance people like e.g. Marshall is are like that. They are trying to find the right answer and that's it. Henry Fonda is, more like what I call an abstract thinker. He could say, I don't know whether he did it or not, but they didn't prove it. And that's precisely what the judges instructed them to think that.

00;12;31;18 - 00;13;11;23

Elkan Abramowitz

But many, many people come and think like that. Many people cannot sit in a jury room and say, I know he did it, but they didn't prove it. Artists, teachers, musicians, philosophers, academics. Those people can think this way. So hopefully, if you're looking to get the reasonable doubt person to be the leader like Henry Fonda, you want more of those types of people on the jury and if you notice, each Marshall would only change his vote when he was persuaded, as a matter of fact, that the eyewitness wasn't wearing her glasses.

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Elkan Abramowitz

The that that's what changed his mind. Therefore, there's an answer. He's innocent. It's not a question. I have no doubt. I now believe that he's innocent, you know, which is much stronger than you need to get an acquittal. So I thought that those that those two were perfect foils for each other. And the other aspect that, some of the other qualities that you're looking for, the advertising guy who's always wants to please, he'll do whatever the majority is doing.

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Elkan Abramowitz

There aren't many people like that. Advertising is one salesman, people who are in the business of trying to please people, hospitality business and that kind of stuff. They will go along with the majority because they want to be liked. So that I think that's why the movie holds up so well, because you're still today picking a jury.

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Elkan Abramowitz

You look all you have, all these types of intelligent people, and different types of intelligence that can make up a jury pool.

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Jonathan Hafetz

Yeah. It's so interesting. And the. I think that you're the advertising executive, that's Robert Webber. But if you change changes back and forth.

00;14;14;21 - 00;14;38;28

Elkan Abramowitz

He wants to please. So if the majority is starting to lean towards, not guilty, that's the way he'll go. I'm simplifying there, but I think that there's a general attitude about that. And then there's always a bully. Lee Cobb is is a bully. And but also brings to the jury table his personal experiences, which every juror does.

00;14;39;00 - 00;15;07;13

Elkan Abramowitz

And, even the, the, the typical obstruction of the court would be you have your personal experiences. You have to discuss it. That's common sense to talk it out. He didn't really want to talk about his personal problem, but it's something that that really played an important role. And ultimately an emotional one for him. But he came around and the bigotry is bigotry is something I'd like to talk about because I don't know how it would work today.

00;15;07;15 - 00;15;35;00

Elkan Abramowitz

On the one hand, the jurors would be more diverse. So there would be general question in what is said from, a racial or religious or even sexist point of view, if you have a diverse jury, however, today almost anything goes. I mean, in the in the public sphere, people are saying things, of a racial, sexual nature that nobody would have said, five years ago.

00;15;35;05 - 00;15;55;05

Elkan Abramowitz

I don't know how that would get played out today. It might be a fistfight, as opposed to just turning, somebody turning their backs as they do in the movie. But I don't know, my instinct tells me civility prevailed, would prevail, and that the diverse jury would keep that kind of discussion to a minimum.

00;15;55;08 - 00;16;03;02

Jonathan Hafetz

That does play important role. They don't specify the defendant's ethnicity, but I think the presumption is he's Puerto Rican. That's I bet.

00;16;03;02 - 00;16;03;23

Elkan Abramowitz

That's what I thought.

00;16;04;00 - 00;16;18;09

Jonathan Hafetz

He's referred to by, as you say, it's not direct like by multiple jurors. I think Ed Begley, his character, is probably the most offensive, but others will refer to them as these people, those types of things. So that sort of racism and prejudice runs through the case.

00;16;18;11 - 00;16;36;17

Elkan Abramowitz

And class distinctions like, the Jack Klugman part said, listen, I came from that kind of a neighborhood. You don't know what you're talking about. That kind of thing, even though he wasn't Puerto Rico, doesn't appear to be Puerto Rican. He came from a slum. And, he's on the jury. And then after he spoke, the language changed.

00;16;36;17 - 00;16;49;24

Elkan Abramowitz

I think that that's what tends to happen. I mean, I think they, the jurors either listen to each other or they do identify it, start to identify with what people are saying. But the dynamic there was impressive as well.

00;16;49;26 - 00;16;59;18

Jonathan Hafetz

Absolutely. I mean, it's harder now if you if you have a jury that's, mixed or is diverse, it's harder for people, even if they harbor those views as prejudice of used to articulate them.

00;16;59;20 - 00;17;13;06

Elkan Abramowitz

You notice the tone towards him changed once he said it. People paid him more respect. I saw, people were moved by what he said to other jurors. And I think that that helped tame everybody down a little bit.

00;17;13;08 - 00;17;38;22

Jonathan Hafetz

You can see that happen. And ultimately, right, you get the moment where very dramatically the jurors get up when they sort of reject the racist outburst by that Begley character and they turn their backs like it all builds up and they finally seem to kind of exercise that from the right deliberations. Were there any jurors if you were, you know, if you were juror selection, you know, you mentioned some of your concerns with the e.g., martial type, who might you have been skeptical of as a defense attorney might not want it on your juror?

00;17;38;24 - 00;18;05;28

Elkan Abramowitz

Well, it depends. Each case is different. Each martial type would be the right kind of if I had a defense that was a factual defense, and I was pushing a factual theory, he would be the kind of guy I would want. He is smart and strong and everything else. If I had, it was a little mushy, like, you weren't sure about the case, and you're arguing reasonable doubt to the jury.

00;18;06;00 - 00;18;30;21

Elkan Abramowitz

Obviously you want the abstract thing, but I call the abstract thinkers, so it depends. Sometimes you don't want you want to look who's going to be a leader, who's going to be a follower. You probably, in the questioning mature, could figure out that Cobb's going to be a strong bully. You got to be careful of that. You got to make sure that there's a counterweight to that, where, he's going to take it.

00;18;30;22 - 00;18;59;09

Elkan Abramowitz

He's going to take the jury with him. I had an experience once with, white collar trial where I had 11 women and one man, and the man was a fireman. Normally, a defense lawyer would not want to fire up the law enforcement that tend to be pro government. My jury consultant said you should take it. Don't don't get rid of him because the other people on the jury are going to hate him.

00;18;59;11 - 00;19;23;06

Elkan Abramowitz

He's a bully. He's he was a stereotypical bully. And you could tell. And I got a home jury, which was, in that case, a really good thing. And that's what happened. The guy was holding out and everybody else was against him. He was the bully. And, the dynamics of how you pick a jury really depend on who else is in the jury box.

00;19;23;08 - 00;19;36;21

Elkan Abramowitz

And that's and sometimes got to make very fast decisions. But, you can't just look at the individual jury. You got to look at the individual juror and how he or she is going to relate to the person next to her or him.

00;19;36;24 - 00;19;40;15

Jonathan Hafetz

So you're picking a whole jury. And, as opposed to making 12 individual choices.

00;19;40;15 - 00;20;00;11

Elkan Abramowitz

In a way. Correct? Correct. And you got to see how they could relate to each other. Who's going to hang out with each other then? You you know who the leaders of the jury would be and isn't clear or I don't remember Henry Fonda said what he did for a living, but if he was, say, an academic, I would want him on that jury.

00;20;00;11 - 00;20;23;17

Elkan Abramowitz

If I if I had two eyewitnesses and I had the kind of case that the case was about, reasonable doubt was the only way I'm going to win this case. So I need some more people like him. And as I said before, if I had that accounting case where there is an answer I'd rather have, Eugene Marshall, he probably couldn't be a leader because he's not likable.

00;20;23;20 - 00;20;31;01

Elkan Abramowitz

He wouldn't have been likable enough to be a leader on the jury, but he would certainly be a steadfast. Well, and sometimes you want that.

00;20;31;04 - 00;20;48;10

Jonathan Hafetz

It's like a psychology and and sociology and group dynamics. I mean, I think actually Henry Fonda says, I think at the end, right where they they're walking out of the courtroom, the only time we're outside the jury room is the beginning of the end. He walks out and he, he introduces himself or Joseph Sweeney, the old man, and just introduces himself, Henry Fonda.

00;20;48;12 - 00;20;51;20

Jonathan Hafetz

Henry Fonda says he's an I think he's an architect, actually, a fine architect.

00;20;51;20 - 00;20;59;24

Elkan Abramowitz

Right. It fits in with my fits of exactly with what an architect can abstract. That's what they do. And they can think like that.

00;20;59;27 - 00;21;24;04

Jonathan Hafetz

You mentioned the hung jury. That kind of plays a role here, because Henry Fonda knows that he's got to convince this jury, right. He can hang the jury, but if he hangs the jury, he knows that the next jury that's sworn in is going to likely vote to convict. Given the sort of the factual context, the strength of the case, the defendant doesn't have a very good lawyer, it sounds like.

00;21;24;04 - 00;21;32;01

Jonathan Hafetz

What what are your thoughts about the hung jury in this case and generally because here for Henry Fonda, if the jury hangs, it looks like it's going to be a conviction in case two.

00;21;32;04 - 00;21;57;00

Elkan Abramowitz

Well, I in fact, the lead Jacob character says let's do that. He said, listen, you want to play games with another jury, do this. You know, this typical bullying fashion if, Jay Cobb were the holdout, there would have been a hung jury, right? Because I think people would have hated him, not followed him. He would not have figured out a way to get this discussed intelligently.

00;21;57;03 - 00;22;17;21

Elkan Abramowitz

So if you have two stronger character in there, you will get a hung jury. He wasn't going to change his mind unless somebody finally challenged him and got to him through that core story about his son. But if he was the leader and there was nobody else trying to get an intelligent discussion going, there would have been a hung jury.

00;22;17;23 - 00;22;24;18

Jonathan Hafetz

I guess normally as a defense lawyer, if you're a hung jury, you're happy for him. You know, let's fight that battle when we get to a one at a time. You know.

00;22;24;18 - 00;22;44;05

Elkan Abramowitz

What? I'm sure that depending on the vote, you can then hopefully convince the prosecutor if it was 11 and one for acquittal, you should be able to convince the prosecutor not to retry the case so that that's as good as an acquittal. If even if it's six six, you should try and be able to argue the, government out of trying it again.

00;22;44;07 - 00;23;08;07

Elkan Abramowitz

It depends on what? The vote. I mean, if there's one holdout, they've got to do it again. The government is going to try the case again. So at least you've got the preview. But okay. So so you could prepare it a little bit better. But, you know, it's it the one thing that I want to go back to, that many trial lawyers do not focus on is a jury in relation to the other jurors.

00;23;08;07 - 00;23;27;19

Elkan Abramowitz

They just pick the one that they're focusing on, and they don't think about how that person is going to react to the other people. This will be brings out hand how reactions to the other people can change the whole outcome. Group dynamics, which many trial lawyers don't think of. They just think this is the kind of juror I like.

00;23;27;19 - 00;23;39;16

Elkan Abramowitz

I like this, I like that one, even if you like them, if the two of them are going to, hate each other, you're going to be, in trouble if you want to win. I mean, as opposed to to, jury.

00;23;39;19 - 00;23;52;09

Jonathan Hafetz

That's got to be so hard to do on, you know, through voir dire. I mean, just to be able to make that assessment. That's right enough to try to predict how someone's going to vote themselves, right, or other predisposed, but to predict how they're going to interact with other people.

00;23;52;12 - 00;24;12;28

Elkan Abramowitz

Especially if in trial one case you learn. So you look at them, you you're communicating with them and they're communicating with you without or without a word being passed. You can see who comes in together, who's talking to each other when they come in, who's really stomping or looking the other way when someone or someone else don't. You just.

00;24;13;01 - 00;24;36;25

Elkan Abramowitz

These are just human, behavioral pick ups that you do. You may be wrong, but, the help from God to watch. You can't just look down on your paper and, you've got to watch the jury. You got to see the jury. You got to see what their facial reaction is to the question. You got to see if they if you have a Jack warden type who really wants to get out of there, you should not want him.

00;24;36;27 - 00;24;49;26

Elkan Abramowitz

In that case, maybe the government would want him. We want a fast vote for guilty. But you could tell he was he was restless. If somebody looks restless or somebody looks, uninterested, those are things that you pick up on.

00;24;49;28 - 00;24;59;11

Jonathan Hafetz

And these sound like, especially in a longer trial that you're, you're adjusting to not just during selection, but after the jury has been selected during the trial or in terms of framing your arguments, looking.

00;24;59;11 - 00;25;15;23

Elkan Abramowitz

At the well during the trial. If you do, I'm looking at the jury. For example, you can ask a question, you think it's the greatest question in the world. And you see three jurors go like that, you know, you know, go, what, what what did you just say? You have to repeat it. But if you didn't see it, you're going to miss a whole opportunity.

00;25;15;23 - 00;25;35;13

Elkan Abramowitz

That's why you really do have to keep an eye on the jury at all times. And the way it's most courtrooms are set up. You can have your state. That's why they have you standing back at one end of the jury box, with the witness box being at the other end. So you can you really can either sense what the jury's reaction is to it.

00;25;35;15 - 00;25;42;23

Elkan Abramowitz

Sometimes you hear a groan, sometimes to hear it. You know, you you've got to pick that up. That's crucial.

00;25;42;25 - 00;25;44;10

Jonathan Hafetz

I got a million decisions a minute.

00;25;44;10 - 00;25;45;01

Elkan Abramowitz

Correct.

00;25;45;04 - 00;26;19;07

Jonathan Hafetz

So one thing that's striking about this case is it does seem like a strong case on the surface. And it's not, you know, it's not it's not like documents or anything. It's not obviously something that could be picked apart. Right. So, I mean, the prosecution does seem to have a winning case here. I mean, right, so and if so, how realistic is it that you're going to get, Henry Fonda to come in, probe and start flipping the jurors from guilty to not guilty one by one?

00;26;19;10 - 00;26;54;04

Elkan Abramowitz

Well, to that extent, there was a dramatic license, I think, but the case was not a slam dunk. Because I with these cases are never slammed though I would this cases are historically and provably, unreliable testimony to try to find out whether there was a lineup did that person do you have the glasses situation something like that for the El going by, right at the right time at the, you know, at the precise moment there were a number of facts that made it not a slam dunk.

00;26;54;06 - 00;27;14;08

Elkan Abramowitz

I think there was just one eye witness. The woman was the eye witness. Then I thought the demonstration about the knives was, really impressive. Especially the street guy saying that a switchblade wouldn't. He would open it up like that and it would go up. All of that could happen. I mean, that's why it was such a realistic movie.

00;27;14;11 - 00;27;39;14

Elkan Abramowitz

So I wouldn't have said that that was a slam dunk right away, because it would have picked up that the woman was too far away. It was, late at night. And, so the defense lawyer apparently was going through the motions and didn't really get to his or her job, but I think there could have been more at the trial itself that would have given the jurors, food for, arguing this and not just leave it up to Henry Fonda.

00;27;39;17 - 00;27;46;26

Jonathan Hafetz

Not an overwhelming case, but one that the challenges or the holes would probably have been poked more at by the defense counsel.

00;27;47;00 - 00;27;54;00

Elkan Abramowitz

Yeah. And, and, pretty much. And then then Henry Fonda could really, pick it up.

00;27;54;02 - 00;28;17;03

Jonathan Hafetz

To the film, get anything wrong in terms of, well, I mean, at the law, but the jury deliberations, like, for example, would Henry Fonda or the juror, like Henry Fonda have been able to go out kind of conduct his own investigation, purchase a similar knife or switchblade to show how easy it was to get? Because the idea was that this was like a unique, kind of a unique knife.

00;28;17;03 - 00;28;17;28

Jonathan Hafetz

Is that realistic?

00;28;18;03 - 00;28;41;04

Elkan Abramowitz

Yeah, that that was unrealistic. The judge will tell the jurors not to do any research, not to look things up. Everybody. Well, the judge will tell the jurors, don't discuss this with your spouse. Don't discuss with everybody. Does the judge will say, don't go to social media. Don't read the newspapers. They will do. Judge really knows that. But actually going out and buying the knife and then coming in with that, first of all, he wouldn't get past the metal detector today.

00;28;41;04 - 00;29;14;28

Elkan Abramowitz

But that was that was pre metal detectors. No he can't really do that. And and another juror could have complained about it and brought it to the attention of the court. And then there would have been a mistrial. But actually, people reading about the case coming up with their own, investigation that way happens, I'm sure, all the time, you know, if he had looked up, switchblades and said that, you know, there were about a million of these, technically that was do that, but, it's I am sure it's done in every case.

00;29;15;00 - 00;29;20;25

Jonathan Hafetz

Hard to imagine. It's not just, you know, to go, to go on the internet and Google images or something and find a million of them.

00;29;20;28 - 00;29;24;13

Elkan Abramowitz

Report that I know. I'm sure it goes on.

00;29;24;15 - 00;29;34;23

Jonathan Hafetz

Have you learned anything that sheds light on the movie from conversations that you've had over the years with interviewing jurors after the fact, or even serving? If you've served on a jury?

00;29;34;25 - 00;29;58;02

Elkan Abramowitz

Well, I got picked, but I never, sir, I and I got picked to be in the box. But then the case got so and I was really mad because I really what I wanted to say we, we often after trials will have conversations with the jurors and it's extremely helpful sometimes formally. Interview them and find out what worked what didn't work.

00;29;58;04 - 00;30;21;21

Elkan Abramowitz

You know, now if the if the client is sophisticated as the means, there are focus groups of mock trials that you do before a trial where you actually have a typical jury and you then can watch them deliberate through, you know, two way murders and things like that. And all of that is very, very helpful and eye opening.

00;30;21;23 - 00;30;41;27

Elkan Abramowitz

They are human beings, educated or not educated. They know what they're doing. I've never really felt that, the jury system should be replaced with anything else. And every case I've been involved in with even the cases I've lost, they came for the right decision. I've not had a situation where there was a disagreement. The jury heard.

00;30;41;29 - 00;30;56;02

Elkan Abramowitz

And I'm trying to, you know, try to about 50 plus cases. So it's a lot of juries. And what can I say is the system works. I'm not sure how how to go about, historically, but whoever thought of it, the only way to do it.

00;30;56;04 - 00;31;13;10

Jonathan Hafetz

Another way of looking at is it works when there are jury trials. Right now, when you started out many years ago, there were probably many more jury trials, cases went to trial. Now there are fewer. I mean, this case seems like one that probably would have played out. They don't have that penalty anymore, but they would have taken something off the sentence.

00;31;13;17 - 00;31;20;23

Jonathan Hafetz

The kid probably would have been told, encouraged by his counsel, to to plead out. And I would have played out and there would have been more pressure to do so. I mean, is that change?

00;31;20;23 - 00;31;50;20

Elkan Abramowitz

Yeah, two things have changed dramatically. The number of trials has dropped, both civil and criminal, largely because, sentencing guidelines and mandatory sentences and, the whole change in the sentencing system has led people to be afraid to go to trial in situations where before the sentencing guidelines, a defense lawyer could tell a client, even if we lose the case, it's not the end of the world.

00;31;50;23 - 00;32;10;21

Elkan Abramowitz

You know, when we get a six month sentence, you don't get an 18 month sentence. Now you're telling them they're going to get an 18 years sentence. If you lose and an 18 month sentence if we plead. So there are situations and I think unfairly in general. Court judge, has written on this that people plead guilty when they really shouldn't be pleading guilty.

00;32;10;21 - 00;32;35;08

Elkan Abramowitz

They should go to trial. That's on the criminal and on the civil end, because of the cost of electronic discovery and everything else. While the pretrial aspects of modern, businesses, we've priced ourselves out of going to trial because people will say up to $5 million worth of lawyers are going to take six, we've got to settle the case.

00;32;35;08 - 00;33;02;22

Elkan Abramowitz

So and for both those three that I'm simplifying, but I think largely, for those reasons that the guidelines in criminal cases and cost of litigation in the civil cases, the number of trials has dropped dramatically and have what's happened is the trials that do go forward. That's why you're seeing so many cases involving prosecutorial misconduct. They don't understand in trying cases because they don't try cases.

00;33;02;25 - 00;33;25;01

Elkan Abramowitz

You know, you're supposed to turn over exculpatory evidence to the defense of a prosecutor that's tried two cases, doesn't know what exculpatory evidence is. I can't imagine what what it is and can make an honest mistake. But it's a mistake. I think there's just not enough of it going on. And I don't see that improving too much. Frankly, I think trials are going to continue to be fewer or between.

00;33;25;04 - 00;33;34;00

Jonathan Hafetz

Jury system works when we have it, and this is a good depiction of it. But unfortunately the various factors you describe, it's not utilized.

00;33;34;00 - 00;33;58;24

Elkan Abramowitz

And I know when I was an assistant U.S. attorney, I tried 30 cases in three and a half years. I don't think the average assistant U.S. attorney today tries more than, 10 in 5 years or six years. There's a different each time you get up in front of a jury, whether it's a Monday case or it's a six month case, and you learn how to deal with juries and you get more comfortable with a jury, too.

00;33;58;27 - 00;34;09;06

Elkan Abramowitz

You can look at juries, you can get an understanding of how people think. The more you do it, you know, to what, you're not going to be particularly comfortable doing it.

00;34;09;08 - 00;34;27;09

Jonathan Hafetz

Let me ask you, you just took off, Daniel, what people have probably heard about that. I want to ask you about it's been in the news, lately, a little bit. I'll say, took place, where former President Trump was arraigned, which was just down the block from where 12 Angry Men was shot at 100 Center Street, which is where likely a trial would take place.

00;34;27;09 - 00;34;48;18

Jonathan Hafetz

I want to take it back to what you were saying before about there not being so many jury trials. It seems in a lot of the commentary that I've read that the government should be, the prosecution should have been laying out its entire case like, almost like it should be like, almost like tried on paper, when in fact there's really not that much information often given on the subject.

00;34;48;18 - 00;34;58;04

Jonathan Hafetz

Correct in an indictment in New York. So it seems like there's a kind of a disconnect between how the trial system works and some of the coverage by commentators on the case.

00;34;58;06 - 00;35;26;01

Elkan Abramowitz

The difference between a regular indictment and a speaking indictment is what people have been talking about. Very often, judges will send a copy of the indictment into the jury room before deliberation. So about 25, 30 years ago, prosecutors figured out if that's going to be the case, why don't we lay out our whole case in the indictment? Because it'll be like sending in a copy of our summation.

00;35;26;01 - 00;35;55;18

Elkan Abramowitz

So when you have these large conspiracy cases, you see, you have a whole story written down, and then that goes into the grand jury room. This is not the Trump case, is not a, conspiracy case. It's, you know, false records case, but they have taken the concept of a speaking indictment and added a statement of fact. If you look at that statement of facts and you compare it to the relatively simple law that's involved, they have laid out the case.

00;35;55;18 - 00;36;16;01

Elkan Abramowitz

They don't need much more detail than what they put in that statement of facts, which, if the judge wanted to send it to the jury room, the jury could use as a guide. I think many of the commentators got lost in the idea of the difference between the misdemeanor and the felony and what how to enhance the misdemeanor into a felony, typically.

00;36;16;01 - 00;36;37;28

Elkan Abramowitz

But the only difference is you have to be able to prove that the reason that they took the books, why did they make the false entry here? They the government says they made the false entry to disguise a campaign contribution. It's as simple as that. They don't have to prove that it was the violation of the campaign contribution.

00;36;37;28 - 00;37;03;11

Elkan Abramowitz

They just have to prove that was what the motivation was. Similarly, was the motivation to make it look like a legal fee to get a tax deduction. That's that's what did they actually take the tax deduction. Not necessary to prove. It's just what was in their mind when they made the entry. And there's nothing novel about it. You know I think that much has been written about how this is it's not that novel and not that complicated either.

00;37;03;13 - 00;37;12;28

Elkan Abramowitz

It's a relatively simple, relatively simple case, which is, if it ever goes to trial, won't even be a terribly local trial. I don't think it would take very long to prove.

00;37;13;01 - 00;37;26;21

Jonathan Hafetz

It'll be very interesting. You know, interesting to be a fly on the wall and any jury deliberations, if it goes trial and goes to a jury there. And I'm trying to think about superimposing some of the dynamics from 12 Angry Men onto a jet.

00;37;26;24 - 00;37;45;18

Elkan Abramowitz

Yeah. You've got to say, look, I have very strong attitudes about Trump, but did they prove the case then they have people who were going to say, Trump can't tell the truth. And from the minute he gets up, he's lying about everything. So there will be that kind of a dynamic. Very much so in a case like that, when you're dealing with a public figure, it's a whole different thing.

00;37;45;18 - 00;38;03;14

Elkan Abramowitz

But again, if I were on the defense side, I'm looking for an abstract thinker. I'm looking for somebody that I can refer to that could say Trump was the worst person in the world, but the government didn't prove the case. The government's going to look for more. Hey, that's like it's here, black and white. What's the problem? It's all here.

00;38;03;16 - 00;38;05;28

Elkan Abramowitz

So that's why the movie is still relevant.

00;38;06;00 - 00;38;20;01

Jonathan Hafetz

And you can see some of the tempers getting heated in it and have a different but related way in that case, because it's an a very personal and people jurors are going to inevitably be bring that those preconceptions that kind of baggage into the courtroom on both.

00;38;20;01 - 00;38;43;21

Elkan Abramowitz

Yeah. Spoke about screaming. I had a case once when I was a prosecutor. We had the jury room was in the back of the courtroom, so the jury would go out. But there's just there was a wooden door between the jury room and the back of the courtroom. The jury wouldn't have. And within a half hour, you could hear people screaming, screaming, and you couldn't hear what they were saying.

00;38;43;21 - 00;39;03;16

Elkan Abramowitz

They were just screaming. So everybody was laughing. Everybody, even though the people hanging round the courtroom was laughing. That went on for about three full days. Finally, there was a hung, jury, that case, but they came out every time the judge, one of the charges, the hair was floating. Everybody's read the face. Everybody. But they were quiet, listening to the judge.

00;39;03;16 - 00;39;14;03

Elkan Abramowitz

But some people get very, into this. So I've never heard of a situation where the with the fist fight. But it's conceivable they could be. People get excited about if there's.

00;39;14;03 - 00;39;23;19

Jonathan Hafetz

Going to be one. I think State of New York versus Trump could be one where you got the, a fistfight breaking out in the jury room. Who knows? But it's it's certainly a candidate. You can get raw.

00;39;23;22 - 00;39;44;17

Elkan Abramowitz

Especially if you know what happens. And this is another point of the jury, of 12 Angry Men, after the first discussion and after the first go around the table, you would forget that they're not talking about what the lawyer said or what the trial said. They started to talk about what you said as a juror number 2 or 3.

00;39;44;17 - 00;40;11;09

Elkan Abramowitz

But you said juror number eight. Henry found out what you said. They retry the case with themselves as the actors. So whatever the lawyer has said and whatever happened in the courtroom becomes less important than whatever is said in the deliberation, which is not, you know, not it's supposed to be supposed to be relying on, on evidence. But what happens is you're going to start relying on juries statements, and not so much the evidence.

00;40;11;09 - 00;40;12;26

Elkan Abramowitz

The longer it goes.

00;40;12;28 - 00;40;18;25

Jonathan Hafetz

By, it's fascinating. So it becomes like a conversation and a deliberation about the prior.

00;40;18;27 - 00;40;32;12

Elkan Abramowitz

Whatever. You know, what this guy said is wrong. And you saw that in the movie. That happened quite a lot. They were talking about what each other had said rather than what a witness had said. And whatever the witness had said.

00;40;32;14 - 00;40;39;09

Jonathan Hafetz

And it's fascinating. Sometimes I guess someone might go in and ask, actually ask for the testimony. If there's a debate about what was said to have it right.

00;40;39;12 - 00;41;01;23

Elkan Abramowitz

And that happens a lot. And then then if you're the trial lawyer, you've got to watch which jurors are listening, which jurors are saying, I told you something. They're they're they're doing all sorts of nonverbal communication when they come out or re instructed, which you can pick up by watching then then you'll know whether how you're doing it, whether you should push for an Allen charge or not.

00;41;02;00 - 00;41;27;00

Elkan Abramowitz

For now. On George Allen charges. The name comes from a Supreme Court case where the court permitted the judges when when a jury says they are, to basically say you should never give up your, personal views. But if in re discussing it, the majority view seems to be more reasonable, you should not hesitate in switching your vote.

00;41;27;06 - 00;41;37;20

Elkan Abramowitz

It's it really does tend to be if it were 11 and 110 to 2 put pressure on the minority to finally agree in.

00;41;37;22 - 00;41;42;01

Jonathan Hafetz

In this case, it doesn't seem like it would have made a difference. In the 12 Angry Men case.

00;41;42;01 - 00;42;00;07

Elkan Abramowitz

I there's one back of the men case and no, because they didn't ever give up. You know, they, they, kept going. But if Jack warden wanted to get to that baseball game, he was. Let's go tell the judge. We can agree they were going to agree and that and would then the judge would give the Allen charge.

00;42;00;07 - 00;42;01;00

Elkan Abramowitz

At that point.

00;42;01;02 - 00;42;11;02

Jonathan Hafetz

They always seem to set some kind of like internal clock on the deliberations to have it. You know, if if it doesn't go this way on this vote, doesn't go way, this way. And that vote, which is good for the dramatic.

00;42;11;04 - 00;42;31;04

Elkan Abramowitz

Yeah. I had a dream on in Salt Lake City. I had a trial, Salt Lake City, where the trial was four days. The jury was out four days without a no. They never sent a no saying that they needed any help and they didn't. They just deliberated for four days and, came out with the right result.

00;42;31;07 - 00;42;45;10

Elkan Abramowitz

Well, I, I thought that was very unusual. Normally after a day or two, they'd start disagreeing with each other and then. And what more instructions from the court or whatever. But sometimes, no, I can't tell longer they're in.

00;42;45;10 - 00;42;48;28

Jonathan Hafetz

Is that usually a good sign for you if they're in longer in the defense?

00;42;48;28 - 00;43;02;14

Elkan Abramowitz

Yes. In the criminal case, the longer the deliberations go, the better it is for the defense, because the presumption is that this is the government wins 90% of the trials, 85% of the trials that they're going to win. And if there's a quick vote, that's what it is.

00;43;02;17 - 00;43;08;18

Jonathan Hafetz

12 Angry men, they're not even out for. They're out. They're deliberating into the evening. But, it's they're not out for that long in the end.

00;43;08;19 - 00;43;22;02

Elkan Abramowitz

No, no, no. And have appeared like they went out around three ish because they, guy said I got 8:00 ball game and then it got dark with rain and stuff like that. But no, that wasn't true.

00;43;22;05 - 00;43;41;16

Jonathan Hafetz

Let me ask you if you've been a consultant on the film to Sidney Lumet, Reginald Rose, what would you have told them? That they did the best in capturing the criminal law juries on film? And conversely, what would you have suggested they correct? If you're doing a memo to writer director, what would it have been?

00;43;41;18 - 00;44;14;13

Elkan Abramowitz

Well, I think what they got absolutely right was the different backgrounds and how the different backgrounds coming together to make a one decision, how the dynamics of that work. I think that rather than being stereotypes, they were, I would call the typical people, not stereotypical people they had. We've been talking about different types of intelligent people, maybe uneducated, but street smart people who brought a real wisdom to the case.

00;44;14;16 - 00;44;36;15

Elkan Abramowitz

I actually wouldn't have changed much in how it was written, except, as I said of the bigotry scene, didn't work for me. Just a little dramatic, but I don't know how else they could have done it other than to just disgrace them somehow. But turning them back, I might have done differently. I don't know cinematically how to do it, but the reason the film holds up is that there's not much to change.

00;44;36;22 - 00;45;05;14

Elkan Abramowitz

Every character, the foreign born, the older guy, the advertising guy, the engineer, the finance guy, the the architect. That's what happens to people with different types of intelligence. Get a common, result, which is fascinating to me. The whole idea of having 12 people with different backgrounds agreeing on anything is is interesting and, I just, fascinated by the whole, like, I wouldn't have changed.

00;45;05;16 - 00;45;23;21

Jonathan Hafetz

I did I mean, I think it all work. I think there were some of the over dramatization. Certain things are just a product of its time. Right. So if you're updating the film, you're making it again, change the gender and racial dynamics, which, by the way, happen. I think William Friedkin made a 1997 remake, and there were four black jurors, and the judge.

00;45;23;23 - 00;45;25;28

Elkan Abramowitz

Got good reviews. I never saw it, but it did get pretty good.

00;45;26;05 - 00;45;32;02

Jonathan Hafetz

Yeah, I don't think it's quite as good, but it's, you know, it's good. But no, I think for the time it really does hold up. And it's a great film.

00;45;32;04 - 00;45;47;29

Elkan Abramowitz

Yeah. So I wouldn't make much changes. And I think it teaches us a lot about human nature and human interactions. Very significant and respected. People ended up respecting each other more than you thought they would, more than they started out respecting each other. I think what's important.

00;45;48;01 - 00;45;52;05

Jonathan Hafetz

Even the Lee Jacob character, you know, for him, it's just about his own son, his own relationship with.

00;45;52;09 - 00;46;18;27

Elkan Abramowitz

Yeah, but then he had a face of himself, and it helped him face it. The whole discussion before it and the whole case, the murder charge of the son against the father, made him think about his own life. And I thought that was wonderful. People come away from a jury experience ahead of themselves, learning something, not only learning something about the case, but learning something about human nature and themselves that happens.

00;46;18;28 - 00;46;41;18

Elkan Abramowitz

I'm sure that happens with that kind of intense dynamic. I've seen it in focus groups. When I'm watching its deliberations, you can feel that they're learning from somebody and picking up on it, even though it's somebody you wouldn't think you'd learn something from a bus driver or a street cleaner than you do, because everybody's got common sense and something to bring to the table.

00;46;41;21 - 00;46;53;11

Jonathan Hafetz

People should see 12 Angry Man, and they should also when they get the jury summons, I guess I know it's the grand jury summons. They should be excited and look forward. Not all cases are going to be like that, but still you do learn something every time.

00;46;53;13 - 00;47;09;24

Elkan Abramowitz

You do learn something every time. I'm serious. You really do grand juries a little different. You don't get the kind of conflict in the grand jury that you do in a trial jury. It's a different kind of service. And I, for one, would not really love being on a grand jury, you know, get two sides of the story.

00;47;09;24 - 00;47;13;16

Elkan Abramowitz

Just getting one in. It's an important function, but it's not the same.

00;47;13;18 - 00;47;29;28

Jonathan Hafetz

Okay. And I want to thank you so much for joining us on Long Film. It's just, honored to be able to talk about this great courtroom drama with one of the great courtroom lawyers and hear your insights on the film and on the jury system. So thank you very much.

00;47;30;00 - 00;47;32;28

Elkan Abramowitz

You're welcome. I really enjoyed it. This was terrific.

00;47;33;00 - 00;47;48;29

Jonathan Hafetz

Thanks. That was Elkan Abramowitz, and the film was 12 Angry Men. Which is available, I should add, on streaming on the various major sites. And I think even, without a cost on at least one, one of the sites. So encourage you to see it if you haven't seen it. Thanks again. Welcome.

00;47;49;01 - 00;47;49;15

Elkan Abramowitz

Thank you.