AN EXCERPT FROM DISSECTING "ANATOMY OF A MURDER": THE AUTHOR, THE CRIME, THE NOVEL, AND THE FILM.

• Author: Milhizer, Eugene R.

INTRODUCTION

In 1958, an Army lieutenant (1) was charged with murdering a saloon owner (2) in small-town Michigan's remote Upper Peninsula. His defense attorney (3)--the longtime former county prosecutor and frustrated author who had just been defeated in a re-election bid--faced, as opposing counsel, the very man (4) who had bested him. The lieutenant never denied killing the victim; in fact, the killing was observed by scores of witnesses, and the lieutenant later confessed and turned over the smoking gun to a sheriff's deputy. In defense of his actions, the lieutenant claimed he sought out the victim and killed him because the man had just brutally raped his wife. (5) Given the state of the evidence and having few viable alternatives, the defense counsel invoked the defense of irresistible impulse--a version of the temporary insanity defense that was so rare that it had not been used in Michigan in over seventy years. (6) After a spirited trial and two hours of deliberation, the jury of eleven men and one woman returned a verdict of not guilty by reason of insanity.

Most parties and observers no doubt believed that the case of People of the State of Michigan v. First Lieutenant Coleman Peterson (7) would fade from memory, just as nearly every trial, even murder trials, do over time. Certainly, no one could have imagined that this seemingly obscure case would provide the inspiration for one of the greatest novels about a criminal trial (8) ever written, penned by the defense attorney himself, (9) and later, one of the most legendary and award-winning trial movies ever filmed. (10) But it did all of this and more. Anatomy of a Murder, both the novel and the film, is a lawyer's war story told on the grandest scale with sublime mastery. In fact, it is probably the best lawyer war story ever told.

The significance of the novel and film far surpass their extraordinary commercial success. Both realistically and unapologetically tackle foundational concepts of justice, truth, ethics, and community standards. Both challenge settled conventions and scrutinize some of our most basic assumptions, in part because of the accuracy with which they depict the law, the role of legal counsel, and the conduct of criminal trials. Both authentically expose the moral inadequacies of the criminal justice system and prompt thoughtful readers or viewers to reflect upon their own values and judgments.

Presented below are the twelfth and thirteenth chapters from my recent book, DISSECTING "ANATOMY OF A MURDER": THE AUTHOR, THE CRIME, THE NOVEL, AND THE FILM. (11) My book explores, in considerable detail, a broad range of topics involving Anatomy of a Murder. It tells the fascinating story of its author, John Voelker. It chronicles the actual, high-profile murder trial, in which he served as defense counsel. It explains how he adapted this real-life trial into a fictional form as a great novel, and how Otto Preminger later reimagined it as a great film. And it considers and analyzes the legal and ethical implications that arose in the greatest legal war story ever told. The chapters that follow next are part of that commentary section of this book.

CHAPTER 12: THE JURY

The preceding observations about counsels' duties and ethical obligations highlight the critical role of the jury in the American legal system. Juries have an important but rather straightforward function: to find the facts and reach a verdict. The jury's fact-finding authority often includes resolving conflicting evidence and making credibility judgments about witnesses. The judge, on the other hand, is the sole source of the law, and the jury has no authority with regard to purely legal matters. Rather, the jury is required to accept the law as the judge instructs them and then apply it to the facts as they determine them to be. Once this is accomplished, the jury is tasked with reaching a verdict, which is essentially a straightforward and mechanical exercise with no apparent allowance for a juror to exercise extra-judicial discretion or personal sentiments. Jurors are told that if the evidence proves every element of a charge beyond a reasonable doubt, they must vote to convict. On the other hand, if one or more elements are not proven up to this standard, they must vote to acquit. In reaching a verdict, the jury is deliberately not informed that it has the authority to depart from the law as given to it by the judge, or to render a verdict that is inconsistent with that law.

In the film, Parnell McCarthy (12) pays tribute to the institutional responsibilities of juries with this soliloquy:

Twelve people go off into a room: twelve different minds, twelve different hearts, from twelve different walks of life; twelve sets of eyes, ears, shapes, and sizes. And these twelve people are asked to judge another human being as different from them as they are from each other. And in their judgment, they must become of one mind - unanimous. It's one of the miracles of Man's disorganized soul that they can do it, and in most instances, do it right well. God bless juries. (13) Under our system, it is for a jury to decide whether a defendant is guilty on behalf of the community. This responsibility is not left to a judge to determine as a legal proposition or a blue-ribbon panel to resolve through its special expertise. Nor is the task assigned to a computer to decipher by applying complex algorithms and equations. (14) Rather, it is a lay jury, comprised of the defendant's peers drawn from the community, that is entrusted with passing judgment on a defendant's guilt.

Some have suggested that a better alternative than lay jurors would be a panel of legal experts, perhaps composed of three judges. These critics argue that such a learned body would be less susceptible to emotion and prejudice. They also claim that experienced legal experts would be better equipped than untrained lay jurors to identify perjury and ignore the theatrics of counsel.

In his book Troubleshooter, Voelker responds to this criticism:

[N]one of the many suggested jury reforms is itself free from the weaknesses which seem to be inherent in any system devised to reconcile the conflict of interests and personalities present in every trial. It appears that the human factor can be quite as much a problem to three learned judges as it can be to twelve illiterate ditch diggers. Susceptibility to flattery, considerations of self-interest, favoritism and prejudice, are human frailties which are [not] the exclusive attributes of the poor. (15) Because jurors are legal novices and susceptible to unfair influences and passions, an elaborate system of trial rules and procedures has been instituted to help ensure fairness. Speaking again through McCarthy, Voelker recognized the purpose and function of the law's processes and procedures in this regard: "The very slowness of the law, its massive impersonality, its insistence upon proceeding according to settled and ancient rules--all this tends to cool and bank the fires of passion and violence and replace them with order and reason." (16)

Important among a trial's governing rules is the presumptive exclusion of potential jurors who have been exposed to unduly prejudicial hearsay evidence (17) and evidence of prior bad acts. (18) In the Peterson trial (and to a somewhat lesser extent in the fictionalized Manion trial), these restrictions were often honored in the breach. For example, before the Peterson trial began, many if not all jurors knew about the defendant's jealous outbursts and that he was suspected by some of having previously inflicted the injuries on his wife. They also knew about Chenoweth's lecherous character and prior sexual assaults. Further, they knew about Mrs. Peterson's reputation for promiscuity and Chenoweth's explicit description of his consensual encounter with her.

It appears that neither the prosecution nor the defense was troubled enough about any of this extra-judicial knowledge to conduct a vigorous voir dire and exercise many, if any, challenges against prospective jurors. Perhaps counsel reasoned that everyone in the small community knew about this inflammatory evidence and a change in venue would be impractical. Perhaps Voelker and the prosecutors all believed they were the superior trial advocates and thus this prior knowledge possessed by the jury could be leveraged to their advantage. Perhaps Voelker thought that the best way for the community to express its collective conscience, which included the possibility of nullification, was through presenting to the jury a relatively unfiltered version of all the surrounding circumstances that were already known to them as members of the community. (19) Or perhaps it was simply that Voelker (and perhaps Thomas) did not challenge prospective jurors who had been exposed to facts that might influence their verdict because he was on friendly terms with many of them. Regardless of the reasons for counsels' passivity, legitimate concerns about the impact of inadmissible evidence upon a jury in Marquette County in the late 1950s resonate even more powerfully today, given the ubiquity of social media, fake news, and the incessant repetition of "breaking news" by 24-7 news providers.

While we will never be certain why counsel engaged in so little voir dire and exercised so few challenges, we do know that Voelker expressed conflicting attitudes about juries and their capacity to render a just verdict. In another of his published works, Voelker writes,

I would still preserve the jury, of course, as the ultimate judges of guilt or innocence. But the present star system of trial, these thrilling courtroom battles of gifted professional pleaders seeking to build or enhance a reputation, to extend a record of conviction or acquittals, to gain some political notoriety or advantage--all this may tend to make an exciting show for the bystanders and sensational newspapers and TV but has damn little...