LawCulture

Appeal of the Real

Yesterday, the New York Times reported the revelation that "Lonelygirl15" is a New Zealand actress Jessica Rose and not a homeschooled teenager named "Bree," who has a computer obsession and time on her hands.  For the past four months, "Bree" has been uploading videos of her trials and tribulations onto YouTube.com, drawing fans (many of them) from all walks of life.  "Bree" had so many fans, that the YouTube Lonelygirl15 videos spwned a fan site devoted to Lonelygirl15 gossip, which yesterday was expressing feelings of loss and disappointment at the exposure of "Bree" as a fictional character.  "Bree" and Lonelygirl15 was a film project of Creative Artists Agency and seem to have been some sort of test drive for a major motion picture.  The New York Times reports that the revelation was in part due to a fan finding a trademark application for Lonelygirl15 that reveals the enterprise as a commercial endeavor. 

Whether because of its commercial nature or its "fraud" (as one contributor to the project worried), fans admit that the appeal has burst. The fantasy and intrigue was sustained because "Bree" was believed to be real. Now that she is truly fantastic, the site -- its draw -- has waned significantly, if almost entirely. "Part of the appeal of the series was that the serious-minded, literate Bree offered an unbeatable fantasy: a beautiful girl who techy guys had something in common with. On learning that Ms. Rose was an actress whose interests, unlike the scientific and religious issues that fascinated Bree, ran to parties and posing, one fan wrote, 'Very cute, but she's realy not into Feynmann and Jared Diamond! (I'm heart-broken ... But a wonderful actress, had me fooled into thinking she was a geek like me.)'"

So I have these two thoughts about Lonelygirl15. For readers of this blog, I may sound like I am repeating myself (see "More on L'Affaire Frey" and the A3Groopie expose). But the repetition in life is worthy of repetition on this blog (not to assume there is a distinction, mind you).

One point is a trademark issue: who's to say that a trademark application can't be for a person's moniker, their call-sign, or whatever you call your "stage name" on-line. Certainly, that is how trademark's function -- as a source identifier that is distinctive of you or your goods and distinguishes your goods (or you) from those of another (or others). Use in commerce is a prerequisite, but how much use and how much commerce is a much debated question. And, thanks to the anonymous source doctrine, it doesn't matter that people don't know the source of the good (it doesn't matter that people don't know who "makes" Lonelygirl15), as long as they understand the source is consistent. It seems Lonelygirl15's trademark application shouldn't necessarily have been a tip off of "Bree" fictional nature. The fact that it was a tip-off says something interesting about how her fans think of the role of commercialization in peddling "fantasy" versus the "truth."

Another point is this: the reality of "Bree"'s fictiveness is only less of an attraction if her fans thought that her physical reality and theirs would someday collide. Given the irrationality of that fantasy (that someday some intriguing and good looking superstar will walk into my life, befriend me and adore me), isn't the more realistic play the game where we give into our imaginative capacities and create fantastic worlds where Bree and her fans can chat on-line about books like "Guns, Germs and Steel" and string-theory? Who is to say that the community of fans she gathered around her isn't real enough? Why sustain the unreasonable fantasy of someday meeting and becoming fast friends with Lonelygirl15 and accept the gift of a community of fans and stories and thoughts about the world that she has given you?

Hat-tip to my indefatiguable friend, Bill McGeveran, for this story.

Justice on Television

So there is a new television show on Fox that begins tonight called "Justice."  Looking briefly at the description of the first episode, it looks like the show will be like all the other ones -- more about the lawyers than litigation, more about celebrity than advocacy, more about truth than fair process.  Given the extent to which this blog has already discussed television legal drama already, I won't belabor the point here, but I do wonder what it is the television producers think has not yet been covered by yet another law show that perverts the perception of the practice of law?  I'll be eager to hear what people have to say about this new show.

Awards for Criminal Confessions

As I continue my work on my project on filmed confessions, I have come across some of the most excruciating film footage I have ever sat through. I wonder why it is I ever stopped writing about hollywood dramas. These criminal confessions are terrifying.

I just watched for a third time the film of Deanne Laney's confession. She is the Texas mother of three boys, two of whom she stoned to death in 2003.  The part that most moves her to tears is not when she describes how she killed her two boys, but when she tells the story of little birds learning to fly just outside her kitchen window. "Where's their mother?" She wonder aloud. "Just then, the mother's head pops up. She was there all the time." Laney starts crying at that point. Why? Because she's like that little bird, learning to fly. Just when you think God has abandoned you, he is right there. "I'm teaching you now how to fly," God ostensibly tells Laney. And she then decides she must kill her sons.

Just this last week, the L.A. Film Festival honored a documentary by Amy Berg called "Deliver Us From Evil" about one priest, Oliver O'Grady, and his past crimes of child rape and molestation. He now lives in Ireland, having been deported after serving seven years of a criminal sentence in the US.  The documentary is in large part interviews with O'Grady about his past criminal acts as the camera follows him around the streets and parks of Dublin. By all accounts (I have only seen several long clips of the film), O'Grady is truly happy to be telling his story and searching for some peace and understanding through the filmmaking process. He admits what he did was wrong. Like Deanne Laney, there is a sense of freedom in the telling.

What am I learning from these films? When I am entirely engrossed in them, thinking "only this kind of delusional person could commit such crimes" I realize how powerful film is, how enveloping a medium it can be. The film has fooled me into conflating the image of the person -- the film's portrayal of the person -- with person who committed the crimes. I think I truly know the person confessing and his or her reasons for doing so. But all I know is the manner in which he or she performs for the camera. What I am really seeing (I think) is that Laney and O'Grady want to tell their story, they seek liberation (achieve some statis or understanding) in the act of telling.  When I look at the film itself (its form, the mediation of the camera) and not that which the film purports to represent (some revelation of a person's innerbeing), I become aware not only of how we make ourselves anew with each telling of our past, but how only this new telling can be the basis of judgment. Maybe this is (or should be) enough. Because in as much as law tries to conjure the past to adjudicate its criminality, it will inevitably fail.

How Television Improves Our World

My unread New Yorkers piled up during the last few weeks of the semester, and I am finally getting around to plowing through them. I almost skipped the article "Life Lessons: How Soap Operas Can Change the World" (content unavailable on line, but this is the link to the TOC) thinking, foolishly, that I couldn't care less about soap operas. Well, it seems I should.  Hanna Rosin, the author of the article, writes about how Mexican soap operas -- exported across the world -- are vehicles for social change.  Unlike soap operas in the U.S., "telenovelas" are shown in the evening and their audience is diverse by age and gender.  One popular telenovela "Accompaname" (translated as "Come Along") "portrays three sisters in a lower-class Mexico City family. One sister has a healthy marriage. Another has an unwanted pregnancy. The transitional character, Martha, has three children and is fearful of another pregnancy.  In one scene, a baby is crying, a pot is boiling over, the phone is rining, and her six-year-old walks in. Martha is about to slap the child, then recoils, saying "I don't want to be like my mother." During the following weeks, she and her husband visit family-planning clinics. Martha tapes up a calendar markign teh days that they can have sex, which she refers to as 'the days we can go to the dance.'"  Rosin's moral to her story about the story of Mexican soap operas?  "The year that 'Accompaname' aired, sales of over-the-counter contraceptives in Mexico increased twenty-three per cent." 

In 1996, Arvind Singhal, a professor of communication studies at Ohio University, conducted a study of an Indian radio drama called "Happiness Lies in Small Pleasures" produced by PCI (the Population Communication International, a New York-based group that promotes the use of soap operas as a weapon against poverty).  One of the stories in that show concerned a young girl named Lali, a daughter of a widow who must fight to go to school. She succeeds, and, after she does, she eventually goes on to become a doctor. Rosin reports that on Singhal's "first research visit [to India], Singhal met a seven-year old girl who, by coincidence, was also named Lali. Her two older brothers went to school, but Lali had to stay home to take care of her younger brothers. Six months later, Singhal returned to find Lali sitting in a classroom. The villagers had petitionerd the government for funds for a child-crae center so that girls would not have to babysit their siblings at the expense of attending school.  The percentage of girls at the school had risen from ten to forty."

None of this is terribly surprising to me. I know -- at least I can feel -- that popular cultural representations of reality changes how that reality is lived and perceived. Rodin is providing just a few examples of concrete relations of change.  Assuming similar affects of popular cultural representations of law and justice (say, the courtroom drama), what are the behaviors and attitudes those representations engender?  Did the film "A Few Good Men" reduce the amount of hazing incidents in the marines? Did it inspire young prosecutors to ask questions of hostile witnesses to which they don't know the answer ("Did you order the code red?")?  In whose service is the courtroom drama (with its predictable self-righteous, underdog attorney and its glorification of the courtroom as a sacred space in which justice is done)?

More about Performance and Confession

I'm continuing to work on a project about filmed confessions. Yesterday, I had a very helpful conversation with several of my colleagues about my theory that all custodial confessions are kinds of performances that enact an identity that may not have existed prior to the confession. Filmed confessions are a subgenre of these performances that have peculiar interpretive problems associated with their filmic nature.

One of my colleagues pointed me to the History of the Peloponnesian Wars by Thucydides where, among other things, Thucydides attempts to set himself apart from other chroniclers. Considered the first "historian," he claims to be telling a story about the Peloponnesian Wars that are empirically verifiable. With this claim, it is said, he is the first to draw the line between myth or  stories and history. What is interesting about Thucydides for the purpose of my concerns about confessions as a form of performance (narrative storytelling that enact identities, bring them to life) is that Thucydides' history -- despite its reliance on empirical data -- is recounted in dramatic form, much in the style of Homer's Odyssey or Sophocles' Oedipus.  The History of the Peloponnesian War, considered one of the first "modern" histories (not only because of its emphasis on verifiable fact but also because of its emphasis on human causality as opposed to divine intervention), is structured around orations and speeches, all in the Latin hortatory subjunctive case.  In this way, much of the "history" told is recounted in a first person dialogue among statesmen that is clearly performative in nature -- presenting an argument or declaration to a crowd of citizens. (The Latin hortatory case, I am learning, is a form of the subjunctive that delineates or signals a speech, a kind of presentation or claim to an audience. Like generic markers "Once upon a time..." or "It was a dark and stormy night...", the Latin subjunctive signals to the audience that a particular kind of speech is about to take place.)  A wonderfully ironic detail of this history is that Thycidides admits that he is recalling the speeches and many were told to him second hand. The "hearsay" quality of the speeches throws their veracity into doubt and their inclusion, nontheless, suggests Thycidides is very concerned with helping bring the history alive, to an audience -- to reconstitute it for the present.

So I began doing what my friends in comparative literature do, wondering aloud how much Thucydides' form and purpose have in common with filmed confessions.  What are the markers of the filmed confession that are like the Latin hortatory case? (There are many, many commonalities among filmed confessions that signal the fact of film, the larger audience the film engenders, the self-conscious nature of filmed speech.) And how are the purposes of the filmed confession and the uses to which the confessions are put similar to the motivations behind Thucydides' new theory of storytelling, that is "history"?  (Confessions are filmed, for the most part, to "record what actually happened" in the precinct house.)

Making Films in Law School

At the Law and Film conference this weekend at the University of Maryland, many fantastically interesting speakers presenting their ideas on the relationship between law and film. One such speaker was Robert Percival, the Robert F. Stanton Professor of Law at the University of Maryland. In his environmental law seminar each year, his students make short films elucidating an environmental issue that the class has covered. Topics have ranged from pollution from waste management facilities to the deterioration of the oyster population in the Chesapeake Bay. As best I understood, the University of Maryland provides a single IMAC and a digital film camera for production purposes. The results (there was a session at the conference showing the "Environmental Law Film Shorts" by law students from 2003 to 2006) are very funny, very informative short films that demonstrate a commitment and engagement by the students in the legal, political and social issues that the class has raised. It got me to thinking how so many other law school classes might greatly benefit from this kind of project in relation to such a small an expenditure of money. The other benefit of the filmmaking by the students is that every year the school hosts an Environmental Film Festival, which draws crowds from the student body at large. The film project therefore contributes to the social and personal dimensions of the law school experience as a whole. One might imagine -- as Professor Percival said explicitly -- how at alumni gatherings the films from the Environmental Film Festivals become milestones and memories that graduated law school classes celebrate when they return to the school as alumni.

Law and Film Conference

This coming weekend, the University of Maryland School of Law is hosting a conference on law and film called "The Impact of Film on Law, Lawyers and the Legal System."  This is the second such conference I will have been to in under a year (the other one was at Fordham Law School), evidence in my eye of the mainstreaming of interdisciplinary legal studies generally and of law and humanities studies specifically.

At this conference, I will be speaking about filmed confessions, but my current interest is the intersection of law and documentary filmmaking generally.  I just finished watching "Death on the Staircase" by  Jean-Xavier de Lestrade (also the director of Murder on a Sunday Morning).  "Death on the Staircase" is about the 2003 trial of Michael Peterson, a Durham, NC resident accused of killing his wife, Kathleen, in December 2001 (whom he found at the bottom of the staircase of their house dead from an apparent fall).

de Lestrade followed the investigation through the trial verdict (over a year and half), editing the footage to eight hours of film.  There was a stunning moment in the film when, during the investigation and criminal defense preparation, it is discovered that eighteen years ago Peterson's next-door neighbor was found dead under similar circumstances as his wife Kathleen (at the bottom of the stairs in her house, dead from an apparent fall).  Upon learning this fact, the defense attorney, who previously had not once in three hours of the finished film addressed the camera, turns to the camera, white faced, and says “Well, now you’ve got yourself a much better film.” 

I am trying to process why I was so moved by this "breaking of the fourth wall," especially when documentary plays on its fictional boundaries so regularly. Perhaps I am moved because it feels like such an authentic moment in an otherwise slick film. The defense attorney has been to this point so deftly ignoring the camera that the audience, too, forgets about the presence and effect of the camera. And yet, when the attorney is shaken by this news because of how it hurts his client, his first response is to turn to the camera and comment on the effect of this fact on the film. This suggests he had not ever forgotten about the camera or the making of the film, only that he had convinced us (his audience) that he had.  The moment that to me feels most authentic in the documentary (most unaffected by the camera) is in fact the moment that reveals nothing is authentic in the documentary.

The Truth of Self-Representation

The thread on a related post is getting too interesting not to make it a main post and invite some new comments.  The issue is the truth of confessions -- especially those that have been filmed by interrogators (either as required by law or in an effort to be prudent).  How do we judge the truth of these filmed confessions? Is self-representation inherently problematic, as one commenter (visitor Corey Rayburn to this blog) suggested?  Does the  performative impulse in people inevitably emerge when placed in front of a camera to "tell their story"?  If so, how does this performance alter how we assess the voluntary, truthfulness or accuracy of the statement?  (None of these questions address the many other issues involved in judging the filmed confession, such as how the film frame affects the interpretation of the coercive atmosphere in the interrogation room.)

I am in the process of trying to collect films of confessions for a longer project.  As part of that project, I just  watched the film "Confession of Bernard Goetz," a fascinating documentary with footage of Goetz's confession, the juror's reactions and commentary from lawyers of the men Goetz shot. What struck me was how performed was Goetz's recounting of the shooting to the NH US Attorneys. He was so obviously and self-consciously telling a story about himself that he wanted to be the truth about him and the state of New York City life. (Does this self-consciousness counsel against the "truth" of the matter or in favor?) And an interesting outcome (although painful to this viewer) was that the jury both believed him -- he was reasonably frightened such that shooting the four men was self-defense -- and didn't believe him -- they disregarded as embellishment or delusion that he returned to shoot for a second time one of the men saying "You look alright. Here's another." Had the jury believed this last statement, his self-defense claim would have been significantly weakened. But by allowing that the confession was both "honest" and "deluded," they could acquit him.

What does this say about the "truth" of self-representation on film, one of those places in law (confession evidence) where film is considered paramount and indisputable form of evidence?  And do we consider the jury's assessment in this case particularly sophisticated in that they recognized that self-representation can be both true and not true, but this "mixed genre" did not taint their  judgment?  Would this be because trials and testimony are always performances, forms of "fiction" -- compiled and put together narratives for the jury to judge?  Or, is the jury's consideration of the "mixed genre" (a "autobiofilm based on a true story"?) problematic because the result in this case -- the acquittal of Bernard Goetz on all murder-related charges -- smacks of injustice and racism? 

(For a wonderfully insightful and impressively interdisciplinary book on the nature of confessions, although not specifically about the subgenre of filmed confessions, see Troubling Confessions: Speaking Guilt in Law and Literature, by co-blogger Peter Brooks.)

"Based on a True Story"

For this post, I owe thanks to my friend Bill McGeveran (soon-to-be-lawprawf). He sent me the following link to a Slate article about the film "Truman Capote." In the article, Philip Seymour Hoffman opines on the difference (or lack thereof) between playing a "real" person and a fictional character in film.

Specifically, Hoffman is asked by Slate:

Slate:  You've now played both Lester Bangs and Truman Capote—two larger-than-life cultural figures. Is there a difference between impersonating a real-life person and creating a character?

Hoffman replies:  There is at first. One difference is that you have all these materials at your disposal. There's information right there that can help you—books, tapes, photographs—which you don't have when you're creating a fictional character. But once you get that information, you have to start looking at the character as a fiction. When you're playing someone who really lived, you carry a burden, a burden to be accurate. But it's one that you have to let go of ultimately. Films are always a fiction, not documentary. Even a documentary is a kind of fiction. So, ultimately you have to think about the story you're telling. You want somehow to be able to create the character in such a way that people actually stop thinking about the fact that they're watching a real person—that they're watching "Truman Capote." If you can get them to be more invested in the story they're watching than in the character, then you've succeeded.

I am intrigued by these statements, not only for the wrinkle they add to the Frey affair, discussed at length on this blog and elsewhere, but also for what they say about the possible difference between books and film as regards audience expectations for truth.

Are viewers of the film "Truman Capote" upset or angered by the fact that Philip Seymour Hoffman, in interpreting the person of Truman Capote for film, intended (and by most accounts succeeded) to transform the historical figure into a film character for the purpose of telling a story that moves the audience?  Does the implicit (or often explicit) subtitle of a film "Based on a True Story" function in the same way as the book genre of "nonfiction" such that film directors and movie producers should be worried about claims of fraud and misrepresentation by disappointed audiences? Or, is there something about film -- the way its made, its history as a cultural form, how it is received -- that distinguishes it from books in how we expect film to "tell us the truth" about some lived experience?

What's in a Name?

While putting the finishing touches on an article, due to come out this winter,  I came across this website, advertising the Nutcracker Interview Management System.  It touts a "digital video recorder for law enforcement interviews ... expressly designed to make detectives more effective during custodial interviews. The system is designed around standard police workflow to save time and result in high conviction rates."

My article compares documentary filmmaking to films of custodial interrogations and confessions.  The history and criticism of documentary filmmaking reveals a medium devoted to social and political advocacy. Insofar as "filmmaking in the precinct house" is a form of documentary filmmaking (born of the impulse to reveal something true about the accused and the crime), it too should be considered and evaluated as a form of advocacy on behalf of the state. It is a mistake, I suggest, to consider the films of interrogations and confession as transparent or unbiased portrayals of the defendant, the interrogation or the confessional statement.

Rather than make my argument in seventy-five pages (yes, way too long, I know), I could have just cited this website. See, e.g., Promotional Material for Nutcracker Product ("Allows jury members to see exactly how the suspect looked and acted, before being cleaned up for court.); see id. ("The system is designed ... to ... result in high conviction rates.)  Is there any doubt after reviewing the promotional material for the Nutcracker Interview Management System that (a) accused criminals are prejudged by the state to be sufficiently "nutty" to warrant a coercively staged interrogation; and (b) the state's primary goal is conviction and not necessarily due process?