00;00;17;17 - 00;00;39;12

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. Film, in turn, tells us a lot about the law. In each episode, we'll look at a film that's noteworthy from a legal perspective. What issues does the film explore? 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 the larger social and cultural context in which it operates? This episode, we look at juror number two, Clint Eastwood's most recent and perhaps final film, juror number two, centers around the trial of a man accused of murdering his girlfriend after a fight at a bar, leaving her in a ditch by the side of a road.

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Jonathan Hafetz

The twist comes early, just in camp, aka juror number two, played by Nicholas Hoult. Soon realizes that the wrong man is on trial as he hears the evidence. Cam figures out that he, and not the defendant, killed the victim, accidentally hitting her with his car while she was walking along the side of a road on a dark and rainy night, and kept thinking at the time that he hit a deer.

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Jonathan Hafetz

After realizing the truth, camp otherwise portrayed as a good man, a loving husband with a beautiful wife and a baby on the way must navigate the moral dilemma as he serves on a jury that seems prepared to condemn an innocent man. Eastwood's first courtroom drama in a long and legendary career, Juror Number Two explores themes of truth, justice, morality, and the human nature of the legal system.

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Jonathan Hafetz

I'm joined for this episode by Frank wall, a founding partner of Wrangler, Safford and Wall. Frank Wall has appeared as a prosecutor or defense counsel in numerous criminal trials and appeals, and as plaintiff or defense counsel in civil cases over his distinguished career. Frank has represented a wide range of individuals and institutions. He's also devoted a substantial portion of his practice to attorney ethics matters.

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Jonathan Hafetz

Defending lawyers and law firms, appearing as an expert witness, and serving on city, state and federal ethics committees. Frank previously served in the U.S. Attorney's Office for the Southern District of New York, where he was appointed Assistant Chief of the Criminal Division and subsequently chief of the Civil Division. Frank also previously served as president of the Federal Bar Council.

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Jonathan Hafetz

Welcome, Frank. Great to have you on the podcast.

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Frank Wohl

Thank you. Jonathan. It's really fun to be here.

00;02;45;01 - 00;03;02;16

Jonathan Hafetz

So after the jurors are selected and before the trial begins, the judge no nonsense judge, I should add shares with the jury her view of the process, explaining that, is that as flawed as it may be, it's still the best chance at achieving justice.

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So the fact that you don't want to be here is exactly what makes you the perfect group to adjudicate this case. You are impartial. You have no skin in the game, nothing to gain or lose. And that is why I believe that this process, as flawed as it may be, is still our best chance at finding justice.

00;03;23;29 - 00;03;28;14

Jonathan Hafetz

The movie seems to reveal many of these flaws. What are a few of them?

00;03;28;16 - 00;03;51;02

Frank Wohl

I think you're right, Jonathan. There are numerous flaws, and first, I want to just say I found that a very odd statement by the judge. I have never been in a trial where judges said something like that. In fact, I think what you're normally trying to do as a judge is convince the jurors or inspire the jurors to take everything very seriously and make sure that you get it right.

00;03;51;07 - 00;04;15;09

Frank Wohl

Here you have a judge referring to the system, as she says, perhaps flawed. And I think in many ways that's the key to the movie, because this movie is really about it's not so much a trial drama, and it's not so much a jury drama like 12 Angry Men. It's more a drama about the whole criminal justice system.

00;04;15;12 - 00;04;43;21

Frank Wohl

And as you said, sort of a good man who is caught in an almost Kafkaesque circumstance of trying to work his way through and survive in a fraught situation, surviving a criminal justice system that really doesn't help him very much. And as the judge said, the system is indeed flawed because it looks to me as though you have bad police work.

00;04;43;24 - 00;05;09;10

Frank Wohl

You have initially a bad prosecution preparation, a failure to prosecute. You have a medical examiner who gives extremely flawed testimony. You have an eyewitness who gives flawed testimony. You have a defense lawyer totally fails to do his job. You have numerous jurors who come in with prejudices or preconceptions, who, as you said, are sort of start out being ready to convict.

00;05;09;13 - 00;05;41;15

Frank Wohl

You even have the protagonist going to a lawyer and getting really flawed advice, and you have a judge who just sits there passively and allows this legal trainwreck to happen with the result that, as you said, an innocent person is going to get convicted and ultimately face life in prison. And the interesting drama here is and maybe you have thoughts about where this fits in the overall film genre, but it's about a system that doesn't work very well.

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Frank Wohl

And then some outsider comes in. Somebody who's really not supposed to be part of the system, whether it's a cowboy riding on a white hat, whether it's some guy, you know, the private in the army who all of a sudden saves the day. But here it's it's a juror who really, by some fluke, happens to be very experienced and sees through the web of failures here that really is causing a great deal of misery.

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Jonathan Hafetz

Yeah, it's interesting because they get into the jury room and they start deliberating. And here's where one sort of thing I think I see a comparison with 12 Angry Men, although it's certainly not a perfect fit. Right. All the jurors, well, virtually all the jurors are for sort of immediate conviction. Right. They are articulate, as in 12 angry men.

00;06;33;09 - 00;06;45;19

Jonathan Hafetz

As I remember in that jury room. It was like 100 reads in the summer. One of them wanted to go to a ballgame and they want to get out of there. They thought the guy was guilty. They want to be done before lunch, right? And that's that's sort of the impression you got. They go around, they're all voting to convict.

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Jonathan Hafetz

And then it's juror number two. Who knows he committed the crime. Who gets in the way. Right. He's sort of, you know, like takes on like the Henry Fonda persona of we've got reasonable doubt. We need to consider this, I think largely because he's trying to, you know, he doesn't want the wrong guy to go to jail.

00;07;01;16 - 00;07;18;08

Jonathan Hafetz

He doesn't want to go to jail. Right? And so he pushes back, and then we get the jury. You mentioned the former retired police detective, Harold Czajkowski is his name in the movie. He's played by JK Simmons, who was great in the role and he, you know, sort of says basically puts his cards on the table, says, you know, I'm the retired police detective.

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Jonathan Hafetz

I don't know how they put me on this jury, but something isn't right. So he conducts his own investigation. He thinks it's a hit and run, drives to the crime scene, pulls records to see what other vehicles were brought in for, the type of repairs consistent with a hit and run, and then the judge learns what he was doing thanks to juror number two.

00;07;37;26 - 00;07;46;09

Jonathan Hafetz

Make sure he gets caught because, you know, juror number two, realize that suspicion might turn on him. And the judge then conducts a hearing to declare a mistrial.

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Reconstruction 0.011 clues to maintain the integrity of the jury system, I remind you that you must decide this case based only on the evidence submitted during the trial. And the law. I will explain to you. You may not conduct any research on your own about this case, or about any people or places mentioned during the trial. Sounds to me like you two violated every sentence of that there.

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All right, move for a mistrial. He's a former cop who knows what ideas you put in the jury's heads. Failure to elicit his previous employment during the fourth year is unused to reasoning. Misconduct come off, judge, there's no need to start over. Our resources already stretched so thin. She's right. Motion to that, Your Honor. You know, as for you two, you violated your oath as jurors.

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Your honor, if I may, I, I upheld the oath I took as a police officer to never betray my character, my integrity, or the public trust. Mr. Tokarski, you are hereby removed from jury service on account of your background. I'm going to make an exception and not find you in contempt of court. Thank you, Your Honor. So, Mr. Camp, you are not a retired law enforcement officer, are you?

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No. Your honor. So how do you explain your involvement in this transgression? I obtained those documents on my own. Your honor, he. He didn't have anything to do with it. Is that true? I mean, did you look at these documents or help to procure them or know what Mr. Tokarski was intending to do? No, Your Honor, I did not look at them, and I didn't help.

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So do you think that you can disregard everything that you heard just now and remain an unbiased member of this panel? Yes, I can. I'm going to take you at your word. Bailiff, please escort Mr. Camp back to the jury room. Mr. Tokarski, you are dismissed. I would ask that a copy of these documents be made part of the court's records for purposes of appeal.

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And again, I move to Michigan's will be marked as court exhibit one. Your motion for a mistrial is denied. Mr. Resnick, is that understood? Yes, Your Honor. It's understood. Good. Then we are done here.

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Jonathan Hafetz

So what was your impression of? Sort of what? Juror number two does? The investigation, the colloquy with the judge not declaring a mistrial. And this whole thing with this police detective juror?

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Frank Wohl

I thought, first of all, juror number two, you know, he's such a decent person, which I think makes the movie really interesting. And part of his decency is he sees the opportunity to really get out of this problem by just letting him convict the guy. That's, that's on trial. And instead, he stands in the way of that.

00;10;32;09 - 00;10;50;08

Frank Wohl

And I think that reveals his character in lots of ways. Then later on, he gets into the predicament that they're going to end up with a hung jury, and we can talk about it later. The kind of legal advice he gives, which is that a hung jury is really not going to work. So I think that was a very interesting interaction.

00;10;50;08 - 00;11;12;00

Frank Wohl

And I thought a lot of the interaction among the jurors was pretty realistic. Although I have to say, you know, lawyers are always really just speculating about what goes on in the jury room because they don't very often get the chance to see it in quite the way we saw it here. You do get focus groups and things like that where we stage trials or mock trials and you get to see them.

00;11;12;02 - 00;11;33;11

Frank Wohl

But I think there are situations where they start out or one way somebody says not so fast. I mean, this is a murder case. This guy is going to go away for life. I think it's quite common for jurors to say this is a serious kind of situation. You know, just having our sandwiches for lunch and coming back is just doesn't feel good.

00;11;33;13 - 00;11;57;11

Frank Wohl

So then you get in sort of slowing the train down. And as you said to Koski, is the one that really, I think digs into this the most. But there's also a medical student who was really seemed to be very realistic. And she points out that the victim had some broken bones in addition to the skull fracture that the medical examiner testified about.

00;11;57;18 - 00;12;17;16

Frank Wohl

So she's got some issues there. And it is, I think, not uncommon for jurors to go off and do their own research. All the judges always tell us not to do that. But particularly today in the world of the internet, it's just very tempting to go home and start looking up the answers to questions about what it's some of these legal terms mean.

00;12;17;19 - 00;12;41;29

Frank Wohl

Does it really make sense to say that, you know, somebody who dies in a way that the medical examiner said is necessarily a hit with a blunt instrument or or not? All kinds of things like that. And lawyers always speculate that, that jurors are doing that. Of course, we oftentimes don't know because we don't find out about it.

00;12;42;01 - 00;13;01;14

Frank Wohl

But I don't think very many lawyers operate under the assumption that jurors always abide by those instructions. And particularly true in a case that's got some publicity, which this case did have. There was a newspaper article about it. So it's pretty likely that somebody went home and read the article.

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Jonathan Hafetz

So when it comes to the judge's attention that Kowski, the J.K. Simmons character, did all this research, you know, she has them both in the bench and deciding whether to declare a mistrial. She says no mistrial. She dismisses Schakowsky, and she lets juror number two stay. The he wasn't really involved, and he wasn't really going to influence his decision.

00;13;21;18 - 00;13;23;28

Jonathan Hafetz

But how did that sort of ruling or scene strike you?

00;13;24;00 - 00;13;45;21

Frank Wohl

It struck me as somewhat unrealistic, actually. I would think in that situation, the judge would lean in the direction of declaring a mistrial. I mean, this is a murder case, and the apparent situation is the case has only gone on for 2 or 3, maybe four days. So it's not a long, long trial where it's going to be wasted.

00;13;45;23 - 00;14;16;03

Frank Wohl

And she doesn't conduct much of an inquiry. Really, it's a rather perfunctory increase. The real issue is have the jurors been infected by this improper information? And the issue is, how about juror number two, who has seen some of the information and has talked to Koski. And then the issue is, well, have they in any way conveyed this information to any of the other jurors?

00;14;16;05 - 00;14;38;08

Frank Wohl

Now, I would think that a defense lawyer, unless he really loves this jury and he thinks he's accomplished a lot so far, is going to certainly ask for a mistrial. I think the defense lawyer in this case did ask for a mistrial. And if he doesn't get it, he's going to ask the judge to do some inquiry of the, of the remaining jurors.

00;14;38;10 - 00;15;00;10

Frank Wohl

I would think that the judge would do that. And I just don't see any reason why you would send juror number two back into the jury room, because juror number two, you know, he says he hasn't really learned anything. I think that at that point, we know that he is at least had a hallway conversation with czajkowski. That's not good.

00;15;00;12 - 00;15;20;14

Frank Wohl

And how can you control what's going to happen with him. So. So why send him back in there? So she's got two choices, which seem to me to make a certain amount of sense. One is to declare a mistrial. Start over again. The other one would be to kick them both off the jury and then put on two alternates.

00;15;20;15 - 00;15;40;09

Frank Wohl

I'm assuming they would have two alternates at least. And I would think in a case like this, you would have probably maybe four alternates. So that shouldn't be it shouldn't be a problem. So I did not think her resolution of it made a lot of sense, but it sort of relates to her passivity in the whole situation. I mean, she's just she's not a very active judge.

00;15;40;12 - 00;16;08;03

Jonathan Hafetz

You mentioned before about the legal advice that, juror number two just in camp gets. Right. The other sort of feature of him, which I think, you know, adds to the audience sympathy, is, is he's a recovering alcoholic. Right. And the night in question, when the, the woman is killed happens. He was actually at the bar where the fight happened, and he was, it was the, I think, anniversary of when they had his wife had lost their like, the last child, you know, during a pregnancy.

00;16;08;10 - 00;16;20;22

Jonathan Hafetz

And he went to the bar, was going to have a relapse and kind of pulls out of it. Right. And driving back and she actually, like, texts him. And, you know, I guess another lesson is don't read your text when you drive. He looks at the text next, you know, it's the woman, but he's a recovering alcoholic, right?

00;16;20;22 - 00;16;40;26

Jonathan Hafetz

So and it turns out his sponsor, played by Kiefer Sutherland, is a lawyer, right? So he goes to Kiefer Sutherland to two points, right? One sort of early on when he realizes what happened. And then later, I think, as you alluded to, when he's asking, you know, what happens if there's a mistrial? What do you think of the advice he, he got?

00;16;40;28 - 00;16;43;01

Jonathan Hafetz

He described it as sort of flawed.

00;16;43;04 - 00;17;04;18

Frank Wohl

The Kiefer Sutherland lawyer really did not do his job. You know, the conversation starts out with, give me a dollar. And now it's covered by attorney client privilege. And that's sort of a joke. Lawyers tell each other all the time. And in fact, it would be covered by attorney client privilege, whether he gave him a dollar or not, because he's going to a lawyer or he's trying to get legal advice.

00;17;04;18 - 00;17;27;17

Frank Wohl

And that's what the attorney client privilege is all about. And it's expected that the whole thing is going to be confidential. I think the problem is that the lawyer hardly takes his inquiry seriously. I mean, he listens to his story, and he tells him that, nobody's going to believe you, if you tell that story. He doesn't really penetrate the situation.

00;17;27;17 - 00;17;53;26

Frank Wohl

He does not discuss with the client. Alternative strategies that he might use. And he doesn't discuss with him the risks that are involved here. And he also really, tilts the, advice that he gives to almost compel Justin to take the what I consider to be the wrong approach and say nothing and stay on this jury because he basically says, well, nobody's going to believe you.

00;17;53;28 - 00;18;15;02

Frank Wohl

And if you come forward, you can end up giving 30 years to life. Justin, on the other hand, asks exactly the right question. He says, you know, if I come forward now and tell the truth, that's got to count for something. And this lawyer gives him this really cynical advice, essentially, you know, you'll end up getting 30 years to life.

00;18;15;02 - 00;18;38;07

Frank Wohl

Now, why do you not get 30 years of life? Well, for one thing, his story is that he didn't know that he had hit anybody, so he thought he hit a deer. There's a big sign there that says deer Crossing. You don't have a legal obligation to report hitting a deer. So he's got a position that he didn't really do anything wrong.

00;18;38;09 - 00;19;04;12

Frank Wohl

And I think he would get a lot of sympathy if he came forward. He's going to get zero sympathy. Having sat on that jury infected the entire process. Allowed an innocent person that he knows is innocent to get sentenced to 30 years to life. The lawyer could have thought about some, you know, more, much more detailed analysis of the situation.

00;19;04;19 - 00;19;28;25

Frank Wohl

One of the big questions is, okay, Justin, if you go down this road of saying nothing, what are the chances that this whole problem is going to come out one way or another? How could that happen? Well, maybe the defense lawyer is going to do the same kind of investigation that we later learned that the juror did start looking around for cars.

00;19;28;25 - 00;19;58;15

Frank Wohl

Think about that. It's a hit and run, because that seems like a pretty decent defense theory. Develop that and it's going to lead to you. Another possibility is they do enough to get an acquittal, and then the prosecution is going to start looking for the real person who was responsible for this. I suppose another possibility is you could have a conviction, and then the Innocence Project picks up the case, and they want to investigate this, and they ultimately figure out you did what you did.

00;19;58;17 - 00;20;31;09

Frank Wohl

So it's a dangerous strategy, it seems to me. And none of these dangers, none of these risks are discussed by the lawyer who does this very often and kind of way. And I think that that's a big problem with him. And then when Justin comes back to him later and says, it looks like we're going to have a hung jury, he says, oh, you get a hung jury, you're really in trouble, because then they're going to do a retrial and they'll be looking for who really did it, and you could get caught that way.

00;20;31;09 - 00;20;57;18

Frank Wohl

So you need a verdict. And that causes Justin to then I guess it's not shown that the deliberations that are actually not shown in the film, but I guess Justin is persuasive enough that he gets the jurors to then convict and I think that lawyer at that point is coming pretty close to a participation in obstruction of justice, in jury misconduct if he doesn't get prosecuted.

00;20;57;24 - 00;21;38;17

Frank Wohl

I think he could easily have a, an investigation and proceeding by the, the local bar association. And he might have a decent argument that he didn't really participate. He's just giving legal advice, but he's going to have a lot of pain. And also, he's really led this client into a just a terrible, terrible predicament. And also, you know, it's another thing that I thought of here, when a client comes into your office in one of these difficult situations, you know, you look at the legal issues, but you also look at the client and the client's psychological or personality, psychological makeup or personality.

00;21;38;20 - 00;22;02;15

Frank Wohl

The way this oftentimes confronts itself in the criminal defense world is some clients are capable of going through the criminal justice system, and it does not faze them, particularly so that they're able to navigate it and they can handle whatever comes. Other clients you can see immediately do not have the psychological strength to do that. This is going to tear them apart.

00;22;02;22 - 00;22;23;17

Frank Wohl

And so doing anything that has risk to it is going to be very difficult for them. And it's very clear that Justin is really in that latter category. After the verdict, he goes to, James psych sentencing because he feels so bad. But that's a really unusual thing for a juror to do. But we know why he does it.

00;22;23;19 - 00;22;44;21

Frank Wohl

And then after Sykes is sentenced to 30 years of life, I think it's after that he actually goes to the dead woman's grave and prays over her grave and leaves flowers on it. And then we see a little, a little scene where he said his form, and he looks out the window and there's some police cars driving by.

00;22;44;23 - 00;23;03;02

Frank Wohl

And you know what Clint Eastwood is telling us? He telling this guy for the rest of his life is going to be torn apart by this. So the lawyer's failure to really provide Justin with valuable legal advice and guidance, I found quite disturbing.

00;23;03;05 - 00;23;23;03

Jonathan Hafetz

So he's one of the lawyers, right. And then the other two lawyers we see. Right. The main ones are the prosecutor, Faith Killebrew. But Toni Collette and then Eric Resnick, who's the public defender, played by Chris Masina. So I mean, a couple of things here. One, you know, Faith Killebrew, Toni Collette, character is pushing this case. She's trying this case.

00;23;23;03 - 00;23;52;26

Jonathan Hafetz

She's also running for Da in Savannah, Georgia. So small, small city where the film takes place. There's a lot of political pressure and kind of a high profile trials with political opportunity. And so she's sort of kind of in some ways the pivotal character, Reggie, she's the one who ultimately has her mind changed. And then, you know, partly by the Tarkowski, the police detective juror and then goes and conducts the investigation that the police have conducted and are what do you think of her character and her interactions with the public defender?

00;23;52;29 - 00;24;17;09

Frank Wohl

I thought her character was a little more ambiguous in that. I guess what I'm saying is she didn't get everything wrong. I think she was pretty strange to me that she got herself into that trial with really inadequate preparation. And what do I mean by that? The key to the prosecution's case, and by the way, this is a really thin case.

00;24;17;11 - 00;24;44;10

Frank Wohl

This is a very thin case that they're going with here. The key to the case is the eyewitness identification. And the eyewitness identification is totally flawed. It's based on a highly suggestive photo lineup that would probably be excluded in most trials. And the way it's presented in the in the movie, she doesn't find out about that until I think the jury is out.

00;24;44;13 - 00;25;09;03

Frank Wohl

It's certainly the trial has already started, and she's already put this guy on the witness stand. I think most prosecutors would expect the police to have conducted an appropriate public photo lineup. They would have a record several records of the witness identification that she would have gone over. She would probably talk to her witness and found out about the lineup and she doesn't do any of that.

00;25;09;03 - 00;25;30;14

Frank Wohl

And by the way, I don't think the judge would have just sat there and allowed this eyewitness testimony to come in. I mean, if she looks over at the defense table and the guy is asleep or something like that, she would have said, hey, Mr. Resnick, are you satisfied that this is a admissible? Do you want to do you want to inquire about this photo lineup?

00;25;30;14 - 00;26;02;05

Frank Wohl

You got any questions? We don't see any of that, by the way. But Killebrew, does come to her senses and even though the movie pushes the idea of the political influence or political pressure on her at the end of the movie, Justin push that button as well and basically says, look, if you do anything to undermine this prosecution or this conviction, it's going to be bad for your career.

00;26;02;12 - 00;26;27;25

Frank Wohl

And she essentially rejects that, and she decides to go forward. And the movie ends with her showing up at his doorstep and probably about to arrest him. So I thought you did the right thing. And I thought she except for her failure to prepare the case and deal with the eyewitness situation. And also, I thought the medical examiner's testimony was pretty flawed as well.

00;26;27;25 - 00;26;52;00

Frank Wohl

So I was a little surprised that that just sailed through. But, you know, I understand that in a movie you might want to cut a few corners. And so they do that. But I thought she I don't know whether it's quite fair to say she's the hero of the movie at the end or not, but, because we're one in the sort of ambiguous situation, as you said, we're highly sympathetic to Justin.

00;26;52;02 - 00;27;02;14

Frank Wohl

At least I was. And on the other hand, his arguments at the end of the movie as to why she should just let him go, don't pass muster.

00;27;02;16 - 00;27;20;10

Jonathan Hafetz

You know, it does sort of suggest in one of the that the kind of unreliability of eyewitness testimony and how when she goes killed, who goes and questions the eyewitness, it's very clear that he was sort of just kind of wanted to felt needed that idea that he was going to be something important. Her relations with the public defender are also kind of interesting.

00;27;20;10 - 00;27;36;26

Jonathan Hafetz

I mean, you know, you see them kind of bantering before when he's, you know, they're trying to talk about maybe a plea. And then during the trial, they sort of talk about in a bar over drinks after the proceedings are done and talk about the case and the justice system. So, you know, you practiced in, you know, in New York, you know, very large city.

00;27;36;26 - 00;27;49;09

Jonathan Hafetz

But so maybe experience is different in a smaller town, but I don't know. Do you ever well on either side, you've been on both sides. You have to have a drink during the case with your opposing counsel or I mean, you know, it's a kind of interesting kind of relation between the two of them.

00;27;49;12 - 00;28;22;15

Frank Wohl

Yeah. It was it was interesting. I didn't feel that it crossed the line and became problematical at all. I would assume that in, particularly in smaller communities, that can happen. And I also think that even in New York, it's not uncommon for defense lawyers to be quite friendly with prosecutors. Maybe they would not have a drink right during a trial, but they might very well, you know, teach together or, you know, have lunch together, at some point, always being careful as to who pays for the lunch.

00;28;22;17 - 00;28;58;22

Frank Wohl

And I think that probably is more true in, in smaller, smaller cities. I guess what I was bothered by was it just seemed to me that the defense lawyer, Resnick, was a lot more interested in ingratiating himself and, you know, bringing her flowers for her when she won the election and having drinks with her, then doing his homework and figuring out that, particularly the eyewitness identification is I mean, that's a huge area in the law that is, you know, you have to look at the circumstances of the photo array.

00;28;58;22 - 00;29;21;16

Frank Wohl

There has to be an array. It can't be one, just one photograph. The police department has to keep records of what the photo array was. They have to create a report, a written report. The written report has to be turned over to the defense lawyers. If the defense lawyers say, hey, where's the written report? It's going to raise a lot of eyebrows when they're when there isn't one.

00;29;21;19 - 00;29;32;13

Frank Wohl

He's probably got a good motion to exclude the eyewitness identification here. So, you know, he doesn't do any of that. Instead he's having drinks with her and giving her flowers.

00;29;32;20 - 00;29;50;16

Jonathan Hafetz

I mean, he does sort of, you know, seem to genuinely believe and argue for his client's innocence in terms of actually doing the hard work of trying to establish reasonable doubt, you know, maybe less than, thorough. And then there's this interesting scene where after Killebrew is sort of skeptical. Right. She says, I want to speak to him right now, speak to the defendant Sykes.

00;29;50;24 - 00;30;06;14

Jonathan Hafetz

And so she goes to the jail, obviously, you know, with the defense counsel's permission, he's there and just sort of ask him, you know, see if she can sort of discern the the truth by questioning him. Yeah. So she, you know, asks him, you know, these things to see, you know, did he really do it? And the defendant maintains his innocence.

00;30;06;16 - 00;30;07;19

Jonathan Hafetz

What about that scene?

00;30;07;22 - 00;30;28;28

Frank Wohl

I mean, I thought it was good theater, but I think in the real world, I suppose occasionally, you know, somebody's story would fall apart. But I think that particularly a seasoned D.A. is going to recognize that some of these guys can lie and convince her that, you know, the moon is made of a green, green cheese or whatever.

00;30;29;01 - 00;31;01;01

Frank Wohl

And so I thought that what really turned her around was the vehicle records. And quite frankly, the absence of any vehicle records related to the defendant's car. And, you know, she's smart enough to know that the eyewitness identification is now highly suspect. And now she's got his car with this kind of injury that is consistent with a hit and run, and he's behaving very strangely.

00;31;01;05 - 00;31;27;07

Frank Wohl

I don't think she's really turned around until after he showed up at the sentencing. And then they have this quite odd conversation on the park bench where he's talking hypothetically, but it's pretty clear that it's not that hypothetical. I thought it was fine to have her go interview him, and I think Resnick hasn't had anything to lose at that point because he's already been convicted.

00;31;27;10 - 00;31;45;00

Jonathan Hafetz

So let's talk about that park bench conversation. This is after she has this sort of moment of epiphany in the courtroom after Sykes has been sentenced. I think he got life without parole, actually. Yeah, right. She realized, I think she gets a note and and just triggers something in her, and she realizes she sort of puts all the clues together, right?

00;31;45;00 - 00;32;01;04

Jonathan Hafetz

And just, hey, that was, you know, juror number two is the one, right? And then, you know, she goes outside and she she talks to him, sort of confronts him. And this conversation kind of turns to kind of the meaning of justice.

00;32;01;06 - 00;32;24;07

Congratulations on winning your election. I saw it in the paper. Oh, yeah. Thank you. Hey. Big deal. I still work hard for it. Oh, I did a lot of good you can do in that town, but sometimes it's not as easy as you think, though. Ever as well. Sometimes you try and do the right thing only to realize you got it all wrong.

00;32;24;09 - 00;32;35;08

And when you say good things out, you realize the guy you're after isn't some psycho. He's not even really a criminal.

00;32;35;10 - 00;32;38;25

He's just a regular guy.

00;32;38;28 - 00;33;04;28

If it was an accident, this is no accident. It's impossible to prove either one. It was just like him not realizing at the time when he hit someone with his cards. You just have to trust. Why would I do that? He's a good person. It's kind of terrible circumstances. Here I had this is a tough one.

00;33;05;00 - 00;33;12;14

He has a family depending on him. Just like you have people depending on you. And what about justice.

00;33;12;16 - 00;33;39;18

Well sometimes the truth isn't justice. You really believe that if you keep going with this, the press will eat you alive? Okay. This case will follow you forever. In the meantime, some politician will take your job. A criminal goes back on the street and a good man and his family will be just destroyed. Where's the justice in that?

00;33;39;21 - 00;33;43;11

Jonathan Hafetz

So, what do you think were some of the kind of competing points of view here.

00;33;43;14 - 00;34;16;22

Frank Wohl

And from the competing points of view related to something that actually goes through the movie in various ways? It's sort of the difference between somebody being what you would call a, quote, good person, unquote, versus a bad person, compared with who actually did it, what is the truth? And actually, in the law, there are protections for a criminal defendant against just being convicted because he's a bad person.

00;34;16;22 - 00;34;40;21

Frank Wohl

Just, propensity to crime evidence cannot come in generally. And that's basically the the discussion. I mean, she says something to the effect of, you know, sometimes things you find out you got it all wrong. And it turns out the person you think is a criminal is not, you know, it's just sort of a regular guy. And he's not a psycho or anything like that.

00;34;40;23 - 00;35;11;07

Frank Wohl

And then he says something along the lines that, you know, maybe she should just let this go and not pursue it. And she says, why would I do that? And he says, well, maybe because you trust him. And that's what she says, why would I do that? And he says, well, because he's a really good person. And that sort of relates to in the jury room, Marcus King, who is the juror who is the most intransigent for conviction, says that he's never going to vote not guilty.

00;35;11;11 - 00;35;32;08

Frank Wohl

And it's not because he actually sees evidence that the defendant did kill the girl. It's because he sees this tattoo on him that shows it is a member of a gang, and he's just a bad guy. And there are various hints in the movie that Sykes, the defendant, has been a bad guy and he's done a lot of other bad things.

00;35;32;11 - 00;35;52;14

Frank Wohl

So it's sort of this tension between what is the actual truth, what really happened and who committed the bad act, versus who's the so-called good person and who's a so-called bad person. And I thought that was that. I thought that was that was a pretty interesting dialog there at the end of the movie.

00;35;52;17 - 00;36;09;28

Jonathan Hafetz

No, I agree completely. And, you know, I think it was a really good exchange between them. And I do think, you know, as you said, it connects back with that scene in the jury room with Marcus King, the juror who's, as you said, determined to convict because he thinks he's a one, because he thinks, Sykes is a bad guy and a lot of sex.

00;36;09;28 - 00;36;32;24

Jonathan Hafetz

He was drug dealing, stun, bad things. He's actually, you know, he is abusive with his his girlfriend, which they show. And it's one of those sort of pieces of circumstantial evidence that they use. I can also, has a kind of personal ish, you know, reason. Right. And I think that here there's a great kind of connection, again, with the kind of 12 Angry men with the lead Jacob character who has, you know, strained relation with his son.

00;36;32;24 - 00;36;51;26

Jonathan Hafetz

It affects his view of the defendant. But it turns out that killing the juror in the movie, his younger brother was killed in crossfire caused by the gang that Sykes, the defendant, was part of. So basically, it's one he's a bad guy, and two, he's got sort of a personal thing against him. It sort of set Sykes up as the opposite.

00;36;51;26 - 00;36;54;26

Jonathan Hafetz

You know, the bad guy versus the good guy of juror number two.

00;36;54;29 - 00;36;56;25

Frank Wohl

Exactly, exactly.

00;36;56;27 - 00;37;21;00

Jonathan Hafetz

I mean, the ideal sort of solution would be if the defendant could be acquitted or the case would be a hung jury to be dropped and no one would be prosecuted, because maybe that is sort of like, you know, the ideal outcome, but it's impossible. And so at the end, I really feel like camp. And if you agree, sort of crossed over no longer the good guy because he's willing to see Sykes basically go to jail for the rest of his life because he's the good guy.

00;37;21;02 - 00;37;57;01

Frank Wohl

That's right, that's right. I mean, I think that's exactly right. But he's he's sort of torn up by it. He's got a lot of regrets and unhappiness, but he's still willing to allow that to happen. And I, I see that as largely the result of the bad legal advice that he got, because I think if in that earlier scene when he first talks to Kiefer Sutherland, I think that it's possible that they could have developed a strategy that would have allowed him to come forward and explain what really happened.

00;37;57;01 - 00;38;17;16

Frank Wohl

And, he would get a lot of sympathy now, whether he's still going to get prosecuted for a hit and run or not, I don't know, because you remember, there's a lot of evidence that it was a terrible rainstorm. It was, I think, at twice in the movie, it's referred to as a blinding rainstorm. Nobody seems to connect that up with the eyewitnesses.

00;38;17;16 - 00;38;48;01

Frank Wohl

But we'll leave that there. And the victim is drunk, so who knows exactly where she was when he hit her. And I think I think they could have possibly navigated this situation, you know, in a way that everything would have come out all right for for Justin. But it would take a lot of legal work. And I think one other little comment in the movie was, where czajkowski the you know, the cop juror says, well, somebody says, well, how could this happen?

00;38;48;01 - 00;39;07;15

Frank Wohl

And he says, well, it's because the guy's essentially a legal aid lawyer and they've got 100 cases. And the prosecution's only got ten, and they don't have any time to spend on stuff. That's another part of what I think of as the theme of the movie, of the whole system being flawed. And I think that was a little bit overdone.

00;39;07;22 - 00;39;36;01

Frank Wohl

You know, I would hope that the federal or the leader of the federal defenders of the county defenders in Savannah, Georgia, would take a murder case a little more seriously, a lot more seriously. And I would think that they would do the kind of examination of forensic evidence and stuff like that, that would mount a much better defense for Sykes and possibly, have the whole situation come out a lot better.

00;39;36;04 - 00;39;51;26

Jonathan Hafetz

Yeah. I'm glad you mentioned that, Frank. I mean, I do want to kind of pick up on that because it is a common trope in movies, you know, that, only the defendant had money to pay a private lawyer. And public defenders are bad made about public. Very good. And by, you know, contrast. You know, many private lawyers aren't so great.

00;39;51;26 - 00;40;12;07

Jonathan Hafetz

Right. So I yeah they sort of buys into that that sort of, you know, that sort of trope. It's in a lot of movies, I think the main, you know, to me, and you mentioned this before, it does seem to be missing at least one very important scene. Right? So after the jury begins to deliberate in earnest, right, and the jurors start to come around, you mentioned the medical student.

00;40;12;09 - 00;40;42;11

Jonathan Hafetz

There's also one of the jurors who kind of jokingly but, you know, actually persuasive, watches a lot of true crime. And she's like the obvious suspects, never the one who did it. Right. But, I mean, you get all these jurors who start to realize, hey, I'm not so sure. And the jury is basically deadlocked. And so the film then kind of cuts from camp juror number two, realizing that he has only one way out, he thinks, which is basically to have the sides convicted or it's going to be him that's going to be under the hot chair.

00;40;42;14 - 00;40;59;06

Jonathan Hafetz

And from that sort of realization to conviction, and it sort of skips the whole other part of the jury deliberations, where juror number two, after helping get the rest of the jury to see the problems, then just basically like almost waves a wand and has them come over and say, no, no, we made a mistake, he is guilty.

00;40;59;06 - 00;41;04;28

Jonathan Hafetz

I, I found that I thought that was a, you know, in my view, like the biggest flaw in the plot of the movie.

00;41;05;01 - 00;41;29;01

Frank Wohl

Yeah, I think I think you're right. I thought that the reason a couple of reasons for that. One is I think that Clint Eastwood didn't really want that close a comparison to 12 Angry Men and secondly, to turn those six jurors around who seemed to be locked into acquittal. At least it's going to take another 15 or 20 minutes in the movie.

00;41;29;04 - 00;41;57;24

Frank Wohl

And, he didn't seem to want to do that. So it just seemed to me that that was a big well, I thought there were a couple of other skipped scenes, actually, that I think are worth noting because I think while the the skipping of the juror deliberation scene where they get turned around prevents it from becoming a real jury drama movie like 12 Angry Men, two scenes that are not included in the movie from the trial are the cross-examination.

00;41;57;24 - 00;42;26;09

Frank Wohl

If there is any of the eyewitness and the cross-examination of the medical examiner, if there isn't any, and instead we get into the jury room and somebody says, oh, confirmation bias. And then the medical students sort of rips apart the medical examiner. We haven't seen any cross-examination. So those were a couple of other skipped parts of it. And I think the reason for all of that really, is that this movie is about what's going on in Justin's head.

00;42;26;11 - 00;42;46;18

Frank Wohl

And, you know, we get a lot of close ups of Justin with meaningful looks in his eyes. And, you know, the suggestion being that, there's a lot of turmoil, a lot of a lot of pain going on, you know, under the surface there. And so I think that's what he wanted to concentrate on. And I thought that part was actually very compelling.

00;42;46;25 - 00;42;55;24

Frank Wohl

But it did require unless he was going to make a six hour movie, it really required skipping over a few things in the, in the legal stuff.

00;42;55;26 - 00;43;07;11

Jonathan Hafetz

Yeah. Who knows what, you know, what went on between him and the studio in terms of what was on the cutting room floor? Did the defense cross the medical exam where when you said, like, it could be, it could have resulted from something else was there? I'm trying.

00;43;07;11 - 00;43;32;12

Frank Wohl

Oh, yeah. I think, you know, I think you're right. I think you're right. He did. He did do that. I guess what I was bothered by was the medical examiner testified that she was killed by a skull fracture, and the skull fracture resulted, in his opinion, from a so-called unidentified. I think he said, nonspecific blunt instrument. What is nonspecific?

00;43;32;12 - 00;43;58;22

Frank Wohl

Excuse me? What does that mean? That was fertile area for cross-examination. And also, the medical student in the jury room points out that, by the way, in addition to the skull fracture, she has two broken shoulders. So that's another area of cross-examination. And then he was asked on direct examination, what was the cause of death or something like that, some question and his answer is homicide.

00;43;58;28 - 00;44;09;26

Frank Wohl

I don't think that that would have been allowed either. So, I think you're right. There was a little bit of cross-examination, but it wasn't much. And it was it was sort of disappointing.

00;44;09;28 - 00;44;27;18

Jonathan Hafetz

Yeah. And maybe, you know, part of that is what kind of what you're saying in terms of where it fits in, I mean, it's overall, you know, we could call it a courtroom drama or legal thriller, but unlike some other movies, you know, an out of you murderer doesn't spend as much time in the courtroom. Unlike 12 Angry Men, it doesn't spend as much time in the jury room.

00;44;27;24 - 00;44;45;07

Jonathan Hafetz

And so, you know, it's sort of pieced together. And it is, you know, I think it's about an hour, 45 minutes. So, you know, maybe they should have given another 45 minutes. And, you know, he could have he could have done. But well, I mean, Frank, are there any other thoughts you had additional thoughts or kind of takeaways about the movie?

00;44;45;10 - 00;45;11;02

Frank Wohl

The idea of the movie was to present a rather dark picture of our criminal justice system. I think a little too dark in my view. Maybe I'm being naive, or maybe it's just the area that I practiced in. But I think in my experience, I think that the judges are more conscientious and more invested in making sure that justice is done than this judge was.

00;45;11;04 - 00;45;41;25

Frank Wohl

I think prosecutors have a lot of political pressure on them sometimes, but I think they are trying to do the right thing, and I think that they would be more demanding of their police investigations than this movie suggested. And I think that defense lawyers, whether they're defense lawyers in legal aid or, you know, whether public service or whether they're paid defense lawyers get much more invested in their cases than this defense lawyer did.

00;45;41;25 - 00;46;06;05

Frank Wohl

So I just think there's more to say for the system than this movie showed. But on the other hand, I suppose it did show that even if you have quite a good system, it really depends on all of the participants in that system really being committed to their responsibilities and taking those responsibility seriously and doing a good job.

00;46;06;08 - 00;46;14;26

Frank Wohl

And I don't think they did a good job in this case. I think maybe the actors did a good job, but I don't think that the participants in the legal system did a good job.

00;46;14;29 - 00;46;28;24

Jonathan Hafetz

Yeah, it's a lot of places where you can kind of break down and also a lot of kind of individual sort of moral, ethical choices that kind of can lead to this. You know, what would have been in this sense, a miscarriage was a miscarriage of justice. Maybe it gets corrected, maybe it doesn't.

00;46;28;27 - 00;47;00;07

Frank Wohl

Yeah. I think that's another interesting question about the movie, is after I thought that, I thought the ending was great, where she confronts justice and that's where the movie stops. But it's interesting to think about, okay, now what's going to happen? And unfortunately, I think Justin is in real trouble now because he's got not only the homicide problem, but he's got some kind of juror misconduct or obstruction of justice case coming down the road, and he's going to get no sympathy.

00;47;00;09 - 00;47;20;11

Jonathan Hafetz

And I have a feeling in juror number two, the sequel to Kowski, JK Simmons, the very savvy ex-cop, comes back and starts to piece together. Yeah. What what happened and realizes, like, whatever Justin tells him. When Schakowsky went to the crime scene, right, starts to piece together and be like, you know, you know, knows it. Justin kind of was, covering it up from early on.

00;47;20;13 - 00;47;24;22

Jonathan Hafetz

Well, Frank, it's been great to have you on the podcast. So thanks so much for coming on.

00;47;24;25 - 00;47;29;21

Frank Wohl

Well, Jonathan, thank you very much. I think it's really interesting, interesting movie and an interesting conversation.