Conventional Wisdom: the Courtroom Trial in American Popular Culture, 82 Marq

Marquette Law Review Volume 82 Article 1 Issue 3 Spring 1999 Conventional Wisdom: The ourC troom Trial in American Popular Culture David Ray Papke Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation David Ray Papke, Conventional Wisdom: The Courtroom Trial in American Popular Culture, 82 Marq. L. Rev. 471 (1999). Available at: http://scholarship.law.marquette.edu/mulr/vol82/iss3/1 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. MARQUETTE LAW REVIEW Volume 82 Spring 1999 Number 3 CONVENTIONAL WISDOM: THE COURTROOM TRIAL IN AMERICAN POPULAR CULTURE* DAVID RAY PAPKE** The courtroom trial takes place not only in actual courthouses but also in literature, film, and television. And indeed, while only a minor- ity of Americans have participated in or even watched a real trial, nearly all have read or watched multiple trials in the courthouses of popular culture. This pervasive engagement with fictional and symbolic courtroom trials must influence what the public expects both in actual court- rooms and in American society as a whole. This essay has three parts. Part One seeks to establish how ubiquitous the image of the courtroom trial has been and remains in American literature, film, and television. Part Two explores the core features of this common pop cultural convention. Despite occasional variations, the core features conform to a standardized cultural picture of the courtroom trial. The convention is oversimplified, but it is nevertheless recognized and taken for granted by most Americans. These first two parts include numerous references to specific novels, movies, and television shows. This extended referencing is not intended merely as a primitive accumulation of titles. The goal instead is to sug- gest an "intertextuality," that is, an echoing and interlocking among a large number of literary and visual works. In isolated cases the intertextuality includes specific citations and allusions; but more commonly, portrayals of the courtroom trial interrelate through their assimilation of * This essay is based on the Third Annual Robert F. Boden Lecture, delivered at Marquette University Law School, November 4,1998. ** Robert F. Boden Professor of Law, Marquette University Law School, 1998-99; R. Bruce Townsend Professor of Law and Professor of Liberal Arts, Indiana University/Purdue University at Indianapolis. MARQUETTE LAW REVIEW [Vol. 82:471 features from earlier works and through a shared store of standard im- ages. Part Three critiques the courtroom trial convention and comments on its ramifications. What does the convention tell us about the courts, the legal profession, and American society in general? How should we think about the courtroom trial the next time we encounter it in a novel, a movie, or a television show? How should we respond to the "conventional wisdom" of the courtroom trial in American popular culture? I. THE UBIQUITOUS COURTROOM TRIAL The courtroom trial in American literature, film, and television is a bit like the new pop song described by critic and scholar Fredric Jame- son. This new pop song, Jameson says, can never really be heard for the "first" time.' We hear a pop song with reference to countless similar songs. In the same vein, we read or see a courtroom trial in popular American culture with reference to countless others we have previously read or seen. The American courtroom trial image is so common in American literature, film, and television that we have most certainly read or seen "it" before. A. Literature In literature, one can trace courtroom trial imagery back to the be- ginning of the Republic. Charles Brockden Brown's Wieland,2 a con- tender for the title of "first American novel," includes an extended trial of a man who had slaughtered his wife and children in the midst of re- ligious exultation and frenzy. In the early nineteenth century, James Fenimore Cooper placed Natty Bumppo-heroic Leatherstocking himself-on trial in The Pioneers,3 only to shake his author's head when the trial he imagined degenerates into a brawl. In the decades immediately before the Civil War American popular fiction came fully into its own. A whole spate of popular novels appeared featuring hard-working young Protestants from the country who move to the city, study law, and defeat assorted connivers, liars, and their pettifoggers in courtroom trials.4 In the second half of the nineteenth century subsequently canon- 1. See FREDRICJAMESON, SIGNATURES OFTHE VISIBLE 29 (1990). 2. CHARLES BROCKDEN BROWN, WIELAND (1798). 3. JAMES FENIMORE COOPER, THE PIONEERS (1823). 4. For comments on the combination of legal and literary sensitivities in the Early Re- public, see ROBERT A. FERGUSON, LAW AND LETTERS IN AMERICAN CULTURE (1984). On the specific subject of courtroom fiction in the early nineteenth century, see Maxwell 1999] CONVENTIONAL WISDOM ized writers such as Herman Melville and Mark Twain included trials in certain of their works.5 After the turn of the century, "social justice" writers often cast lawyers as shysters and tools of big business. The courtroom in turn could seem a biased, unfair place. In Upton Sinclair's The Jungle,' immigrant Jurgis Rudkus not only observes the horrors of the Chicago meat- packing industry but also fares badly whenever he ends up in court. In Theodore Drieser's An American Tragedy, Clyde Griffiths, the son of street evangelists, seems to be working his way to the top in a relative's to death after a lengthy courtroom collar7 factory, only to be condemned trial. While these novels and others struck a sober tone, assorted lawyers turned writers of popular fiction offered different perspectives. At the turn of the century, West Virginia lawyer Melville Davisson Post published several engaging collections of stories regarding fictional attorney Randolph Mason.8 Arthur Train, himself a lawyer and assistant district attorney, created Ephraim Tutt, a Manhattan practitioner who dressed in a top hat and old-fashioned cutaway and, prefiguring modern trends, liked to fill out his bourgeois identity with a big cigar. Tutt's exploits, rich in wry humor and courtroom trial success, appeared primarily in the Saturday Evening Post.9 Erle Stanley Gardner extended the tradition of successful popular novels with striking courtroom scenes. Himself a one-time solo practitioner in Oxnard, California, Gardner created the lawyer Perry Mason, Bloomfield, Law and Lawyers in American Popular Culture, in LAW AND AMERICAN LITERATURE: A COLLECTION OF ESSAYS (A.B.A Comm'n on Undergraduate Educ. in Law and the Humanities ed.,1980). 5. Melville's exquisite Benito Cereno (1856) and Billy Budd (published posthumously, 1924) include courtroom proceedings. In Twain's Pudd'nheadWilson (1894) an attorney suc- cessfully uses fingerprints to defend his twin clients and to identify the man who had mur- dered a judge, albeit with disastrous results. 6. UPTON SINCLAIR, THE JUNGLE (1906). 7. THEODORE DRIESER, AN AMERICAN TRAGEDY (1925). An American Tragedy was dramatized by Patrick Kearney in 1926. The novel also inspired A Place in the Sun (Para- mount 1951), a movie starring Montgomery Clift as the defendant and Raymond Burr as the brutal prosecutor. 8. See Francis M. Nevins, From Darwinianto Biblical Lawyering: The Stories of Mel- ville Davisson Post,18 LEGAL STUD. F. 177 (1994). 9. A good collection of Tutt stories is The Adventures of Ephraim Tutt (1930). For a Tutt "autobiography" and "casebook," respectively, see ARTHUR TRAIN, YANKEE LAWYER: THE AUTOBIOGRAPHY OF EPHRAIM TUTrr (1943) and MR. TUtrr's CASE BOOK (1936). A recent secondary treatment of Train is Francis M. Nevins, Mr. Tutt's JurisprudentialJourney: The Stories of Arthur Train, 19 LEGAL STUD. F. 57 (1995). MARQUETTE LAW REVIEW [Vol. 82:471 who in eighty novels neirer failed to save his client and find the guilty party, usually in a concluding courtroom trial. "Call it corn if you want," Gardner said, "but corn is the great staple that helps us to live."' ° In the present, the tradition of popular lawyer-authors lives on. Hardly a week passes without a lawyer novel on the best-seller lists. Works such as Scott Turow's Presumed Innocent," and John Grisham's A Time to Kill 2 and The Rainmaker" include powerful courtroom trials. B. Film Beyond literature, no shortage of screenwriters, directors, and pro- ducers have given us films with courtroom trials. Rennard Strickland had argued that trials were ideal for the early film industry because the courtroom converted easily into a comparable set and also because this set afforded the particular points of light and sound which were desir- able given limited technology. 4 Elmer Rice's The Trial was a hit in 1914, was filmed again in 1917 and 1928 in the silent era, and then be- came a talkie titled On Trial.5 The development of a more modern film technology enhanced rather than precluded courtroom trials in film, and as the 1930s gave way to the 1940s, Hollywood studios frequently featured courtroom trials in major productions. Fury,6 Young Mr. Lincoln," Knock on Any Door,8 and the delightful Adam's Rib'9 included courtroom trials. In the latter, husband and wife lawyers played by Spencer Tracy and Kathrine Hepburn square off in the courtroom, and one of Hepburn's witnesses, a muscular woman from the circus, hoists Tracy above her head. Order in the court, please. During the 1950s and early 1960s, a period that law professor and 10. Quoted in David Ray Papke, Erie Stanley Gardner and His Amazing Perry Mason Machine, JURIS DR., Aug.-Sept.

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