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Friday, May 14, 2021

You can't handle a real trial

I have read many discussions about Lt. Cmdr Galloway (the Demi Moore character) in A Few Good Men being an awful lawyer. One commentator went so far as to label her the real villain of the film. She is bad, although she did introduce the concept of strenuously objecting, which I use in flagging students' unnecessary use of adverbs.

Like in any legal movie, the courtroom histrionics are nonsense and a lot of what Kaffee did was inappropriate in its place. But it lays out facts and evidence that could have been worked into a realistic trial. So something I have thought about for years: Did Kaffee need Jessup to confess to ordering the Code Red? Or could he have created reasonable doubt in a real case?

Prosecution's evidence:

    • Dawson and Downey attacked Santiago, stuffed a rag in his mouth, and Santiago died.

    • The doctor testified that the rag was poisoned, largely based on the results of the autopsy and the cause of death.

    • Kendrick testified that he ordered the men in the unit not to touch Santiago, however much they might want to.

    • Santiago was scheduled to be transferred the next morning, so Kendrick and Jessup had not reason to "train" him through a Code Red.

    • Dawson had motive--Santiago threatened to report Dawson for a fence-line shooting. It is not clear what Downey's motive was--following Dawson, I guess.

Defense evidence:

    • Dawson had previously ignored orders and helped a Marine who was being denied food as a Code Red; his performance ratings and the speed of his promotions dropped.

    • Code Reds (Codes Red?) were a thing at Gitmo, it was in the air, and everyone knew about them.

    • Dawson protected Santiago. The men in the unit knew that and would not have given him a Code Red because Dawson would not have allowed it.

    • Santiago had not packed and had not told family that he was being transferred (although he was supposedly being transferred not discharged, so I am not sure whom he was supposed to tell).

    • Men follow orders or people die.

    • We did not see it, but there almost certainly would have been other positive character evidence on the defendants, who were, before this, "poster-child marines."

    • The doctor's testimony changed--initially inconclusive, then certain about the presence of poison.

Kaffee's closing: Much of what Kaffee does in examining witnesses, especially Jessup, would properly have occurred during closing and could have been effective then.

    • Inconsistency between the supposed transfer and the supposed order not to perform a Code Red, given that men follow orders. Both were designed for Santiago's protection, but there is no reason to issue both. Combined with Santiago not having packed and being asleep four hours before his flight, it seems unlikely that he was being transferred. So the plan was to tell the men not to touch Santiago.

    • Dawson had gotten in trouble for ignoring orders, so he would not have ignored Kendrick's order not to touch Santiago. Especially given his history of protecting weaker marines, including Santiago. Dawson would not disobey an order anymore and he would not attack a weaker marine. For him to do this, he must have been ordered.

Reasonable doubt?

Posted by Howard Wasserman on May 14, 2021 at 09:31 AM in Film, Howard Wasserman | Permalink


The Supreme Court entry did not open comments.

There is an error with the urls -- the link for BP P. L. C. ET AL. v. MAYOR AND CITY COUNCIL OF BALTIMORE needs to be fixed.

Posted by: Joe | May 17, 2021 3:31:52 PM

I don't know about full-on books, it's possible, but I think legal films and other films with major legal subplots do get discussed on a somewhat regular basis in various formats. For example, many years back, someone even took it upon herself to publish an entire law review article on the environmental law aspects of Ghostbusters.


Being a legal consultant to such movies seems like a fun gig.

I'm a little embarrassed to say I didn't follow the coverage much, but surely pundits were falling over themselves to critique Chauvin's defense strategy?

Even for scumbags like him, I have zero problem with putting on a vigorous defense. The right to counsel is always a good thing in criminal trials. If anything, it makes his conviction more likely to stick.

Relatedly, How Appealing recently highlighted an interesting decision about someone basically trying to raise an IAC claim ... in a defamation case where she was the plaintiff. Suffice to say it didn't have much traction. It's an interesting case for other reasons too—definitely recommended.

Posted by: hardreaders | May 17, 2021 12:51:06 PM

The question is interesting.

I wonder if there are books with discussions of legal films, perhaps having a collection of essays from legal minds. To toss it out there, I find the show "All Rise" interesting, and it provides a non-Law & Order view of defense attorneys too (L&O treat defense attorneys as calculating and somewhat slimy).

It is O/T I guess, but one thing that personally came to mind recently is if there was a GOOD way to defend the police officer in the Chauvin trial, involving George Floyd's death.

I saw various people appalled at how it was handled, but many reprehensible people are defended. I hope some of the commentary by the talking heads covered how the defense should have gone about it.

Posted by: Joe | May 17, 2021 12:08:40 PM

So what's the deal on comments now? Are they just going to be allowed completely at random? Was there a policy detailed somewhere that I happened to miss?

I realize nobody cares in the slightest, but I sort of lose interest in this blog when comments aren't allowed, even when I have no intention of and/or never end up making one. Also, despite the copious amounts of noise, I find the occasional interesting discussion makes it worth having comments.

Code Red, it's got what plants crave!

Posted by: hardreaders | May 17, 2021 11:57:02 AM

The best suggested prank I've ever heard on the internet was about going to a restaurant that served Mountain Dew Code Red and ordering it.

That way, you set up the possibility for this exchange:

WAITER: Did you order the code red?

DINER: You're goddamn right I did!!

Posted by: thegreatdisappointment | May 15, 2021 3:06:47 PM

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