Thursday, October 27, 2016

Life Society

In many ways, life is a series of transformation and personal growth – we see this in ourselves, in others, in laws, and in changing forms of society and culture. However, it is not often that a film is able to demonstrate these changes and their transforming power over a relatively short time span. Café Society, the most recent film by Woody Allen, is able to encapsulate these transformations over the course of a few short but vital years in the lives of the main character.

Set in the 1930s, the film begins with Bobby Dorfman, an eager young man from New York City who finds himself in an increasingly suffocating home, with two bickering parents, an opinionated older sister who is stuck in an unhappy marriage, a lecturing brother-in-law, and a gangster older brother. Wanting to experience the world for himself, Bobby travels to Hollywood and seeks out his successful film agency head uncle Phil Stern. Phil is a quintessential Hollywood executive, constantly working and engaging in social activities with the goal of creating more business opportunities. In essence, his life is a combination of working within self-serving relationships while also redefining himself to meet the image he feels he must portray in order to continue advancing in the industry.

Phil puts Bobby off for a while and eventually takes him on as an errand boy. He also arranges for his secretary, Vonnie, to show Bobby the town. With a new friend and a new job, Bobby begins to thrive, although he finds himself falling in love with Vonnie, who at the time has an unnamed love interest. However, when this relationship ends, Bobby and Vonnie became an item and Bobby – ever the New Yorker – makes plans for them to marry and move to Manhattan. By the time Bobby suggests this to Vonnie the audience already sees that, despite his inherent naiveté, Bobby has moved through important stages of life and is able to figure out a path to some success in Hollywood although he does not plan to pursue it.

Sadly for Bobby, Vonnie’s boyfriend was none other than Phil, and she decides to return to him and follow the path of the glamorous – yet seemingly fake – Hollywood wife. With his heart broken, Bobby returns to his parents’ home in New York. He goes through a variety of jobs without finding something fulfilling to hold his attention. In many ways, it is as if he has regressed to the pre-Hollywood Bobby, although with a harder and more jaded heart.

Finally, Bobby takes up an offer from his gangster brother Benny and joins him in operating a nightclub, Café Society, that eventually becomes the toast of the town. In a short time, Bobby grows into an adult who is capable of charming wealthy and influential patrons and balancing Benny’s less savory traits. He brings the experiences he gained while in Hollywood to Café Society and makes creates an image that goes beyond the naïvete he usually displays.

One night, Bobby meets Veronica, a high society divorcee who he instantly falls in love with. They share a whirlwind romance that culminates in marriage and the birth of a child. In many ways, Bobby seems to have come of age as a family man and as a businessman once Benny receives the death penalty for murder. Although Benny’s trial is quite visible, the aura surrounding it only added into the mystique of Café Society and business continues to grow just as Bobby does.

And then one night Vonnie and Phil walk into Café Society. All at once, adult Bobby seems to fade into the background and the young Bobby who moved to Hollywood re-emerged, complete with the vulnerabilities he tried to leave behind. At first he tries to hide from the spectre of his past but eventually Vonnie catches up to him and suggests that they get together to chat, with no expectation other than that. Over the course of several days, they tour the city and relive old times but at the same time highlight the ways in which each person has changed.

Vonnie has grown into the woman she claimed she never wanted to be – the wealthy but fake socialite who fills her time with meaningless stories and friends who flock to her because of her standing. Society views her differently than when she was a secretary however in her deepest heart she is unsatisfied and wonders what could have been if she stayed with Bobby. At the same time, Bobby has become hugely successful and has everything he thought he could want – a beautiful and loving wife, a growing family, and people who respect him. Society certainly views him in a different light than when he was an errand boy for Phil. In his heart, he feels the pain of his first love leaving him and yet is aware that the life he lives is likely more than he could have achieved if he and Vonnie stayed together.

Overall, Café Society takes the audience on a short yet intense journey through the lives of two young people who are trying to define what and who they are and demonstrates how the courses of lives differ from those planned. The film also notes how the people grow with and within society just as society can grow with and around them.

Thursday, October 20, 2016

Songs of Society

As noted in a previous post, music provides the sounds of life for many of us. For the listener, music has the ability to transport to another place or experience and can also provide a frame for events and times. The listener might be passively engaged but is still engaged. For the artist, however, music is obviously more personal. It is a reflection of the artist’s personality, experiences, emotions, travels, and society. In many ways, music transcends the individual artist – or even a group of artists – and creates an image of his/her society. The documentary film Song of Lahore provides an example of the ways in which this occurs and the impact this has on the artist and society. It also presents insights into how different artists and musical genres can come together to craft music that is truly reflective of a global art form.

Song of Lahore tells the story of the Sachal Jazz Ensemble, a group of musicians playing traditional Pakistani instruments for not only traditional music but also songs from other genres. In particular, the group performed a rendition of the jazz classic Take Five using traditional instruments that garnered attention around the world through social media. Eventually, this performance came to the attention of Wynton Marsalis, who extended an invitation to the group to come to New York City and join the Jazz at Lincoln Center Orchestra in a performance at the famed Lincoln Center venue.

The film presents the stories of several key members of the group and explores how music has shaped their families and their lives. Through these presentations, it becomes clear that music has been a constant source of pride, identity and struggle for these talented artists and for Pakistani society in general. The film notes the prior existence of a booming musical industry in Pakistan and its destruction at the hands of changes in government and social mores regarding the appropriateness of music generally. This has a devastating impact on society in terms of cultural expression and enjoyment. It has a more personally devastating impact on individual artists, such as those in the Sachal Jazz Ensemble, who saw their craft, livelihoods and family traditions swept away as a result.

Persecution for musical performances created an environment in which many artists stopped performing and others performed in secret, constantly aware of the risks to their safety. While the political and social climate may have eased somewhat in terms of its restrictions on music and musical performances, the film documents the ways in which musicians are still subject to societal ridicule and threat. For example, one of the performers notes that his grandson was targeted for violence while walking through the street carrying a musical instrument.

News of the invitation to New York City is viewed as a fantastic opportunity for the Sachal Jazz Ensemble, although the leaders are aware that they must be perfect in their performances. They begin a strict practice regimen that is not well received by some and, along the way, there are decisions to drop members from the traveling group. This is not an easy decision but it is one made in order to allow the Sachal Jazz Ensemble to perform at its best for its members and as a representative of Pakistan. Throughout the practices and once the group arrives in New York City there is a sense that the performance is about far more than just highlighting an individual group.

On arriving in New York City, the group takes the opportunity to enjoy the major tourist sites before settling down to a grueling practice schedule with Wynton Marsalis and the Jazz at Lincoln Center Orchestra. This is necessary to coordinate the performance of Take Five, which is performed by musicians from both groups. Coordination of this particular aspect of the performance is quite difficult and results in many artistic changes and disagreements, demonstrating differences in style and expectations within the groups and between the groups.

There is perhaps no better microcosm of cultural blending and the problems faced when completing it. And yet, completed it is, and with remarkable harmony and grace. The performance is an overwhelming success, hailed by critics and audiences as well as by members of the groups themselves.  

Overall, Song of Lahore presents the many different layers of meaning held by music. It offers a glimpse into a society in that has devalued music and artists but in which a core group of artists has maintained an attachment to and love of its art form. It also allows an understanding of how music can serve as a cultural bridge between different societies, allowing artists to speak the same language and audiences to hear the same passion in music regardless their nationality or location.

Sunday, October 2, 2016

Legitimizing False Confessions In Popular Culture - A Look at Law and Order: Special Victims Unit and the Depravity Standard.

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It seems like every few weeks (or perhaps less) we are informed through news media of a fresh new instance of someone who has been released on account of a wrongful conviction. There is indeed a necessity to be aware of the various possible causes of wrongful convictions – preferably before such occurrences transpire. Not everyone reads news articles, and fewer still have the time or inclination to peruse through scholarly literature or actual jurisprudence. Enter film, television and other mediums of popular culture.

Mediums of popular culture are excellent teaching tools to highlight and make visible (potential) miscarriages of justice and wrongful convictions, in addition to their possible causes. There have been a number of commercial and documentary films that exhibit narratives concerning wrongful convictions (e.g. In The Name of The Father) and the use of questionable police techniques such as “Mr. Big” sting operations (see Mr. Big: A Documentary).

Why look to narratives told through moving images? At a basic level, they serve as accessible means to understand or acquire information about important phenomena. As scholars, Charles Ogletree Jr. and Austin Sarat (2015, p.4) have articulated: “Mass-mediated images are as powerful, pervasive, and important as are other early twenty-first century social forces – including globalization neocolonialism, and human rights – in shaping and transforming political and legal life.”

Film and television shows are useful tools for depicting legal events. However, as Ogletree and Sarat (2015, p. 5) further posit, they “are not just mirrors in which we see legal and social realities reflected in some more or less distorted way.” Rather, they argue (2015, p.5), such visual mediums “project alternative realities that are made different by their invention and by the editing and framing on which the moving image depends.”

With Wrongful Convictions Day upon us, I thought I would use this blawg post to discuss a particular television episode that connects to the theme of wrongful convictions and specifically how particular police techniques may give rise to them.

One of the various possible instances in which a wrongful conviction may occur is through coercive interrogations and the production of a false confession. An episode of Law and Order: Special Victims Unit (SVU) entitled the "Depravity Standard" (Season 17, Episode 9) illustrates this and other associated problems (presently available on Netflix). SVU is a fictional television show highlighting the work of police officers and prosecuting attorneys as they investigate and prosecute, respectively, sex-related crimes.  



The episode, in particular, features the attempted prosecution of  Lewis Hodda (played by Tom Sizemore), for the kidnapping of two children, one of whom he supposedly murdered. In pursuing the accused with respect to the murdered child, there is no direct evidence. The main evidence to be used is a confession procured by Lieutenant Olivia Benson (the lead character of the show who is played by Mariska Hargitay). As the episode unfolds, we learn that Olivia uses lies and veiled threats to get the accused to incriminate himself. Despite the presence of such techniques, Olivia seeks to insistently project the notion that the confession is inherently voluntary and provides a legitimate basis upon which to convict.
  
During the trial, Olivia takes the stand to testify on behalf of the prosecution regarding the confession that she secured. After Hodda's videotaped confession is played in court, the assistant district attorney, Rafael Barba (played by Raúl Esparza) asks Olivia if she was present during the confession. Olivia states that the confession was voluntary and Hodda had been informed of his rights (thus establishing that the procedural norms situated within the Miranda warning were adhered to). Barba later inquires from Olivia whether any coercion, physical violence or threats were used. Olivia states, unequivocally: "Absolutely not."

Olivia is then cross-examined by Hodda's counsel, Lisa Hassler (played by Robin Weigert). After some initial questioning, the following dialogue ensues.

Hassler: Finally, you had Lewis Hodda in your interrogation room.

Olivia: Yes, where he confessed to murdering a seven-year old boy. It's on the video.

Hassler: I am much more interested in what is not on the video. So, you interrogated Lewis Hodda for over six hours before turning on a camera. During all that time, you didn't coerce him? You didn't threaten him?

Olivia: No, I followed police procedure. 

Hassler: Did you tell him that witnesses had seen him with other children who had been murdered? 

Olivia: I may have. 

Hassler: Was it true?

Olivia: Um, the Supreme Court has ruled that police are allowed to make misrepresentations. 

Hassler: By misrepresentations, you mean lies?

Olivia: Basically, yes. 

Hassler: So, after lying to him about these nonexistent witnesses, didn't you tell him, and I quote [Hassler reads from a document]: "Nobody likes a "chomo" in state prison"?

Olivia: Yes, but it was a matter of urgency. The defendant had another child. 

Hassler: Your Honor, please instruct the witness to answer the question only. 

Judge: Lieutenant, you are flirting with causing a mistrial. The jury will disregard. 

Hassler: What is a “chomo”, Lieutenant?

Olivia: It's a child molester. 

Hassler: And ‘chomos’, or child molesters -- are themselves -- frequently assaulted in prison, are they not?
...

Olivia: Yes, they are. 

Hassler: So, you lied about having the evidence that would send him to prison and you threatened to label him a 'chomo' when he got there. 

Olivia: We had good reason to believe that he was a child molester. 

Hassler: And you promised to advertise that belief to insure he would be assaulted when he got to prison. Then, and only then, did he confess. 

Olivia: He confessed because he was guilty.

SVU’s main protagonists are police officers and prosecuting lawyers with supporting roles played by victims of crime. Their main adversaries are the designated criminals and their counsel. Pitted against such enemies, the resort to such sharp practices projects an aura of justification. The ends justify the means. 

That which emerges from the scene is the manner in which lying becomes or is presented as normalized. I am not solely referring to Olivia’s (or her real-world counterparts’) flagrant lying during interrogations (which is perfectly legal). Rather, it is also the lies that some officers may tell themselves and the court under oath to secure a conviction. In the scene, Olivia avowedly asserts that the confession is voluntary despite threatening to reveal Hodda’s status as a “chomo” to other inmates and thus placing him in a vulnerable position.  

A further problematic aspect of the narrative is the use of the video-recording as purportedly solid and persuasive evidence of guilt. Guilt springs forth not merely from the word of a law enforcement official testifying but more importantly from the accused’s own lips as captured on video – and thus the video doesn’t lie. What is of course problematic is that the video does not reveal all the things that were said to Hodda prior to his final confession. As some jurisprudence suggests, while a video-recording is not required, courts may find it highly suspect that an interrogation is only partially recorded (especially where recording equipment is available) (see e.g. R. v. Moore-McFarlane).

There is an added aspect to the video-recording that does not get addressed specifically in the episode which is also telling. While a video-recording is a helpful tool to hear and see what has transpired during an interrogation, how that recording is effected can have a substantial impact on how the viewer perceives it. Though we hear Olivia’s voice, the image in the video-recording focuses solely on Hodda and it is a close-up. This is not insignificant. Psychologist Daniel Lassiter conducted a series of experiments several years ago with mock juries using video-camera footage of an interrogation from two vantage points – one camera was focused solely on the accused and the other captured both the accused and the interrogators (See Mnookin, 2014). As Professor Jennifer Mnookin writes (in connection with Lassiter’s experiments): “When the interrogator isn’t shown on camera, jurors are significantly less likely to find an interrogation coercive, and more likely to believe in the truth and accuracy of the confession that they hear — even when the interrogator explicitly threatens the defendant.”

After the prosecution and defense rest their cases, the jury is left to deliberate. As the episode unfolds, we learn that the jury cannot come to an agreement on the verdict – specifically, one (or possibly more jurors) is having doubts about the confession and Hodda’s guilt. The case ends in a mistrial and thus no conviction is secured based on the confession offered.

One gets the sense that the show is intended to have viewers lament this result. After the trial, two jurors approach the mother of the murdered child to tell her that most of the jury members believed Hodda to be guilty. The juror who refused to convict was portrayed as being anti-police and uncooperative. What this suggests of course is that notwithstanding the problems with the confession and the lack of reliability surrounding it, the proper result was Hodda’s conviction. The failure to convict is attributed to a juror with a generalized anti-police bent. In addition, Hodda’s lawyer, we are told, is the daughter of a famous (fictional) trial lawyer who was still seeking the approval of her father - eleven years after his passing. The show constructs those who show support for Hodda (or question the methods used) as being suspect and motivated by less than legitimate concerns. 

That SVU travels down this road – e.g. vis-à-vis how it legitimizes improper interrogation techniques – is far from surprising. It is after all a show that is largely police-officer and prosecution friendly. As Dr. Adam Shniderman (2014, p.100) has written, SVU’s model of justice (like other Law and Order franchises) is one which focuses on speed, efficiency, and order-maintenance rather than the rights of suspects and accused who are presumably guilty. Shniderman (p.126) argues that conduct by SVU detectives on the show typically abuses defendants’ rights and are sometimes later vindicated at trial. However, and this is worth noting, he observes (p.126) that the tactics on display on SVU with respect to police interrogations also have led to false confessions in the real world. 

While it may be unclear as to what extent films and television shows influence viewers (and prospective jurors), studies suggest that the influence is real. Whether taken on its own, or as part of a pattern of legitimated conduct, the SVU episode discussed here problematically validates questionable police tactics and primes its viewers to find such methods defensible and necessary. Given the willingness of real world juries to convict when they hear a confession, projecting interrogation methods involving threats of violence is questionable. It fosters, at least among some members of the public, the notion that such means are acceptable.   

I end with two quotes by the United States Supreme Court in the 1991 case Arizona v Fulminante (p.296) which concerned a coerced confession. The quotes speak to the power of confessions at trial.  

A confession is like no other evidence. Indeed, the defendant's own confession is probably the most probative and damaging evidence that can be admitted against him. . . . [T]he admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct. Certainly, confessions have profound impact on the jury, so much so that we may justifiably doubt its ability to put them out of mind even if told to do so.
 ...
In the case of a coerced confession...the risk that the confession is unreliable, coupled with the profound impact that the confession has upon the jury, requires a reviewing court to exercise extreme caution before determining that the admission of the confession at trial was harmless.

Sources

Arizona v Fulminante, 499 US 279 (1991). 

Jennifer L Mnookin, “Can a Jury Believe What It Sees? Videotaped Confessions Can Be Misleading” New York Times (13 July 2014), online:

Charles Ogletree Jr. & Austin Sarat, “Imaging Punishment: An Introduction” in Charles Ogletree Jr. & Austin Sarat, eds, Punishment in Popular Culture (New York: NYU Press, 2015) at 1-21.

R v Moore-McFarlane, (2001), 56 OR (3d) 737, 160 CCC (3d) 493 (ONCA).

Adam B Shniderman, “Ripped from the Headlines: Juror Perceptions in the Law & Order Era” (2014) 38 Law & Psych Rev 97.