Trial and Error


As I’ve mentioned in this blog previously, I am a criminal magistrate for Tarrant County, Texas. In my role, I spend a fair amount of time appearing in front of recently arrested individuals. I set bail and inform them of their rights. I encounter a great number of interesting people. Last week I met a woman who listed her occupation as life and health coach. Her charges included possession of alprazolam, methamphetamine and driving while intoxicated. Perhaps, she should list her occupation as Irony Coach.

We’ve all seen courtrooms on television or read about them in books—oak-paneled, high judicial bench, and lots of flags. The court where I work has none of these. I typically video-conference into a room in the basement of the jail. It looks more like a tornado shelter than a Law and Order set. Drop a reader or viewer into my workspace and time would be taken up with orientation. A quick sense of place is provided by the tropes.

My American Heritage dictionary defines a trope as a figure of speech—a convention. The trope is a concept which the reader or viewer will recognize and understand instantly. In an earlier blog, I displayed this artist’s skeStewarttch of the Martha Stewart trial. Although only a snippet of the room is shown, the drawing’s location is immediately obvious.

The tropes in American trial stories are, therefore, familiar. An opening shot of a courthouse, wide steps, columns and double doors—as if we all did business at the Lincoln Memorial. The courthouse from the outside, often resembles a church, imposing but welcoming of citizens.

Inside the building, the scenes routinely include more chaos. In movies, the camera pulls in tight on people’s faces. There is noise and activity. Human intervention and disorder are an integral part of the system. The courtroom itself, has another set of double doors, parallel with the outside. Within, order is restored. Quiet prevails, but with public attendees. Questions and answers rarely overlap. When they do, it is the signal for drama. The scene synthesizes the two earlier shots from outside and inside. Achieving justice requires human action.[i]

The tropes of the courtroom help the audience to more easily immerse themselves in the story they read or watch. We have expectations. We can see a courtroom and know whether the story is set in the United States or England. (Is the defendant standing in the dock? Do the judges and counsel wear wigs?) The phenomenon is not limited to Americans. Anecdotally, Spaniards and Swedes know more about the American criminal justice than their own legal systems because of their familiarity with the images.[ii] They recognize the essential elements of our courtroom dramas.

Some argue that dissatisfaction within the legal profession is due to the reality not measuring up to the tropes; practitioner’s ennui brought about by the sense that the profession was supposed to be bigger and grander than the workaday world most of us inhabit. I don’t know. Brian and Bruce might weigh in on how the television world distorts the real world of police work (more paperwork, less gunfire). I hope that my comrades with law degrees are thicker skinned than this opinion would suggest. We, lawyers, might also worry about not measuring up to the standards set by the television attorneys. Television creates the world where defense attorneys are constantly pulling rabbits out of hats. In truth, most defendants get convicted.

My worries about the portrayal of my profession deal less with professional disenchantment and more about furthering a “two teams” culture. (It also lets me scatter big words into my blog.)

Manichaeism, a third century dualistic religion, taught a constant struggle between two opposing forces: a good world of light, and an evil world of darkness. Perhaps the prophet Mani was an early devotee of courtroom dramas.

My concern with the court trope is that it furthers the notion of ready divisions. Trials get resolved—guilty/not guilty—a winner and a loser are declared. The world becomes split into good and evil. Trials are about “us” versus “them”. For those few cases which go to trial, this image is fine. But, to the extent it seeps into society at large, furthering what some have called American Manichaeism[iii], then our trope becomes problematic. Most of the world does not clearly divide into our team/their team. Life is not a switch, it’s a dial.

Occasionally, I meet a defendant who I feel is truly bad. When that happens, I am grateful for the guards and concrete in my tornado shelter. Most of the time, however, my encounters are more wonderfully complex. The incarcerated coach likely gave sound advice to clients to enhance their physical and emotional well-being. And then, she sought solace in mood-altering chemicals which damaged her body. She allegedly made bad and dangerous choices to drive under the influence. She lives, I assume, like most us, neither all black nor all white, but rather in a multifaceted world of gray. That is what makes her complex and interesting—a better character.

Mark Thielman

[i] Jessica Silbey, American Trial Films and the Popular Culture of Law, Oxford Research Encyclopedia, Criminology and Criminal Justice.

[ii] (Carol J. Clover, Law and the Order of Popular Culture, Law in the Domains of Popular Culture, 1999)

[iii] David Ray Papke, Conventional Wisdom: The Courtroom Trial in American Popular Culture, Marquette Law Review, Vol. 32, Spring 1999.

2 thoughts on “Trial and Error

  1. Great piece, Mark, and very thought provoking. As a kid, I grew up with Perry Mason, a defense attorney who always represented innocent defendants who were railroaded by incompetent police and prosecutors. And he always (most of the time anyway), got the real criminal (not his client) to break down and confess during trial. As a police detective, I participated in many hundreds of trials, and I never saw the “real” criminal called as a witness confess in court. A real-life defense attorney friend of mine who was the court appointed attorney on more than a hundred murder cases, said that he never had a client who didn’t commit the murder. In city where I worked, homicide detectives didn’t take a case to the DA unless there was plenty of evidence, and the DA never filed charges unless they had a good chance of winning. And if any of us thought the defendant didn’t commit the crime, we’d never push for prosecution. Although there were a few defense attorneys and prosecutors who drew battle lines and fought viciously in court, what I normally saw was an air of cooperation to achieve the greater good–justice. The defense attorneys advocated for their client, which was their job, but few went overboard. Those who fought to win all the time even when they knew their side was wrong didn’t last long in the system.


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