My Cousin Vinny’s Version Of The Criminal Justice System

This month marks the twentieth anniversary of the premiere of the film My Cousin Vinny and, to commemorate the occasion, our friends over at Abnormal Use have invited legal bloggers to post their thoughts on the film. Abnormal Use itself will feature a series of posts over the week, including interviews with Vinny’s producer and screenwriter. You should check them out.

To me, Vinny is not only a great courtroom movie; it’s a great comedy. I think the comedic elements that make it so great come from the fact that we have two fishes out of water here — Brooklynite Vinny and the befuddled Beechum County citizens who are forced to deal with him. Both sides are aware of their difference, yet neither condescends to the other; they are all humble, likeable people searching for common ground. At one particularly bungling moment, Vinny’s fiancee mocks him, “Gotta let everyone know you’re a tourist.” As Vinny replies, “What are you, a f—— world traveler?” Vinny’s full of braggadocio and confidence, but he doesn’t think he knows it all.

But the heart of comedy is an elusive subject and too often, in talking about it, the comedy slips through the critic’s fingers. And so I think, rather than analyzing what makes Vinny such a hilarious movie, I’ll stick to what I should know best: how Vinny rates as a courtroom movie, in terms of its courtroom realism.

No movie makes perfect marks on this score. The urge for screenwriters and producers to crank up the courtroom drama always trumps the impulse to want to get it right. But some get it a lot better than others. Several months ago, while laid up, I was watching the Ed Norton/Richard Gere courtroom drama Primal Fear and it just got so many things wrong — evidentiary issues, the judge’s rulings, etc. — that the movie held zero entertainment value for me because the lawyer part of my brain just couldn’t suspend disbelief.

Vinny however does pretty well getting legal points right, with some notable exceptions. One glaring no-no is that, for much of the movie, including part of the trial, Vinny is the lawyer for both of the defendants. That’s a pretty major conflict of interest.

There’s also a fair amount of bone-picking that can be done about Marisa Tomei’s testifying as an automobile expert. Her testifying is especially dubious in a movie set in 1992. In 1992, the then-prevailing touchstone for the admissibility of expert testimony was the Frye case, which dated from 1923, and had been followed by most states for several decades. A year after the movie was made, in 1993, the Supreme Court handed down its watershed opinion in the Daubert case, which adopted a standard of reliability that today gives the judges in most states more discretion to allow testimony, such as Tomei’s, if it is reliable.

But there are also a lot of scenes that would have even a nit-picking lawyer nodding his head in approval. For instance, Vinny is repeatedly admonished in his opening statement for resorting to blatant argument. And rightfully so — it’s an opening statement, not an opening argument. Better lawyers succeed in disguising their arguments as mere statements of fact, unlike Vinny, who is over-the-top argumentative in his opening.

Another scene that might warm a lawyer’s heart takes place outside the courtroom: the District Attorney agrees to share his case file with Vinny. Vinny is shocked the DA would surrender such a tactical advantage, but as Vinny’s fiancee points out to him, the prosecutor’s generosity is unremarkable: a 1963 Supreme Court opinion, Brady v. Maryland, held that Due Process requires the government to give defendants any exculpatory information they possess and, in some jurisdictions, prosecutors err on the side of caution by sharing far more than merely exculpatory information and follow an “open file” policy.

If I had one beef with “My Cousin Vinny’s” legal realism, it would probably come from scenes like this. I think there are many Americans who form their impressions of our justice system through TV and movies, moreso than from first-hand experience such as jury duty. And so, as a lawyer, I want my fellow citizens to get a view of our justice system as it is, rather than as Hollywood imagines it to be. And unfortunately, even where it’s accurate as a matter of legal doctrine, the version of our criminal justice system that “My Cousin Vinny” gives is too much like an eighth-grade civics lesson and too little like the system as it actually works.

Yes, Brady v. Maryland is on the books and, yes, prosecutors do have a duty to hand over exculpatory information. But, in many jurisdictions, this obligation is honored as much in the breach than the observance. For example, the New Orleans District Attorney’s office under Harry Connick, Sr. (the father of the singer) was notorious for violations of Brady, including some, such as John Thompson’s case, that led to innocent men being put on death row. But the Supreme Court has essentially left these wronged defendants without any sort of remedy.

Vinny, of course, pulls off victory in the end, when he gets the sheriff on the stand and the sheriff identifies two new suspects – two gentlemen who were recently arrested with a gun of the same caliber as the gun used in the murder, and who were driving a Pontiac Tempest, the make and model of car that could have left the tire tracks outside the convenience store.

But imagine Vinny hadn’t been the hero and pulled off this improbable courtroom victory. Imagine that the boys had been convicted and these other suspects identified only after the conviction. In such a quandary, rather than taking a direct appeal, the boys’ best bet would probably be a motion for a new trial. But the standard for getting new trials is fairly tough in practice and not a viable option for all defendants. (Federal Rule of Criminal Procedure 33, for example, requires motions for new trials to be filed within three years of the conviction — which is problematic if the new witnesses haven’t come forward by then).

In his just-published book, “The Collapse of American Criminal Justice,” the late Harvard Law professor William J. Stuntz diagnosed one of the problems with the American criminal justice system as its obsession with procedure and the elevation of proper procedure over issues of substance, such as guilt, innocence and fairness. American jurisprudence is primarily concerned with whether a trial followed proper procedures. If the right procedures were followed — if hearsay evidence was excluded and the defendant was allowed to have an attorney, and that attorney was able to cross-examine the witnesses — then it’s very hard to challenge or overturn a criminal conviction.

Ironically, it’s a lot easier for a guilty man to get a new trial when a judge allowed in some damaging hearsay evidence than it is for an innocent man to get a new trial on the basis of the fact that investigators just uncovered some exculpatory evidence, such as a witness’ recantation.

Procedure, procedure, procedure is a refrain often heard in My Cousin Vinny. When the judge first meets Vinny, he gives Vinny a copy of the Alabama Rules of Criminal Procedure. When Vinny attempts to enter a plea at the arraignment, the judge gets frustrated because Vinny is ignorant of the proper procedure.

Too often American justice elevates procedure over fairness. If the proper procedure was followed, it didn’t matter (until a recent law change) that a crack cocaine dealer received a sentence in federal court that was 100 times stiffer than the sentence received by another dealer who sold an identical quantity, by weight, of powdered cocaine. Because of American jurisprudence’s elevation of procedure over substance, such a sentencing disparity could not be challenged either on grounds of fairness or its disparate effect on African-American defendants.

It’s great that Brady v. Maryland recognizes a Due Process right in having access to exculpatory evidence, but where is Due Process when the offense itself is so poorly defined that people have little or no idea how their conduct violated the law? As white collar convict and conservative media mogul Conrad Black points out in his recent memoir about his imprisonment for “honest services fraud,” many criminal laws are so open-ended and vaguely worded that the government can gain a conviction for just about anything.

As Adam Gopnik pointed out in a recent New Yorker piece entitled, “Mass Incarceration and American Criminal Justice,” the true face of American criminal justice is something we need to come to grips with. We have such a huge proportion of our population in jails that we need to grapple with how to reconcile that fact with our being a free country.

My Cousin Vinny is, first and foremost, a great comedy and a movie that Americans will be watching, and guffawing at, for years to come. And while it ultimately gets a lot of its procedure right, the criminal justice system that it depicts too often bears little resemblance to reality.

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Are You Eating Soylent Pink?

The picture to the left depicts what’s been called “Soylent Pink,” an ammonia-treated food substance that, until recently, was processed and sold by many fast food restaurants as a meat product. Made up primarily of gristle and connective tissue, Soylent Pink, aka Pink Slime, had to be doused with chemicals to kill off the E. Coli and Salmonella that proliferates when you chop up all the parts of an animal and mix them together.

But while fast food joints, thanks to public pressure, are abandoning pink slime, The Huffington Post reports that pink slime is making its way in bulk into public school lunchrooms, where it will be sold as chicken nuggets and other meat products. The US Department of Agriculture recently purchased seven million pounds of pink slime for school lunches. Yuck!

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