EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, August 10, 2012

Spike Lee, "Red Hook Summer," "Malcolm X," Batson, Jury Impeachment, & "Do The Right Thing"

Today sees the release of Spike Lee's "Red Hook Summer." Lee has to be up there among all-time greats in the directing game. I've seen every one of his movies, and his run of films from his debut, "She's Gotta Have It," to "Summer of Same," traversing 14 years, is pretty damned impeccable. Since then, his feature length film resume has been pretty spotty. "Bamboozled" was an ambitious miss while "25th Hour" was the definitive post-9/11 movie. "She Hate Me" was a disaster while "Inside Man" was a taut bank robbery genre piece with a sense of humor. But then, "Miracle at St. Anna" was a slog.

"Red Hook Summer" is a return to Lee's roots as it is an independent piece set in his preferred location of Brooklyn (albeit it in Red Hook rather than his usual Fort Greene). Lee's roots, of course, are in independent cinema, and his "Spike Lee's Gotta Have It: Inside Guerrilla Filmmaking" is the most inspiring work I've ever read about the creation of anything. I'm very much looking forward to "Summer" because my wife and I used to walk through Red Hook a good deal when we lived in Boerum Hill (our favorite place in the Hook being the late, great Schnack).

Spike Lee is no stranger to controversy, from his feud with Reggie Miller to his George Zimmerman tweet to his trademark lawsuit against the Spike TV network. This last dispute underscores the fact that Spike Lee and his works have played a large role in American litigation.

In Wooten v. Federal Exp. Corp., 325 Fed.Appx. 297 (5th Cir. 2009), an interracial couple brought a discrimination action against their employer, claiming, inter alia, that their co-worker made reference to them having "'jungle fever,' a phrase made famous by the Spike Lee movie of that name...." In Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000),  the Ninth Circuit rejected the claim that an Islamic scholar who had consulted with Spike Lee during the filming of "Malcolm X," qualified as an author.

And then there are the 3 Spike Lee cases involving interesting evidence/criminal procedure issues:

In United States v. Hinton, 94 F.3d 396 (7th Cir. 1996), the judge asked the prosecutor about his reason for striking a potential juror wearing a "Malcolm X" cap, leading to the following exchange:
THE COURT: Your reason for that is?
PROSECUTOR: He came into court wearing a Malcolm X hat. I believe that indicates a potential for an attitude that is not favorable to the government. I can elaborate if you want me to. I also didn't like what I perceived as body language. The Court may have noticed when the government was asked to stand up and introduce [its] case agent and [its] witnesses, juror number 20 folded his arms across his chest in a way that I interpreted to be a negative body language. Those are the two reasons I would cite to the court.
DEFENSE COUNSEL: Well, I mean the fact that he wore a Malcolm X hat, which as I understand is a movie that was produced by Spike Lee and there are probably millions and millions of these hats all around the United States, and I would like to point out to the court that I own one. But as far as body language, I noted that there were several persons that had their arms crossed the entire length of the voir dire including, I believe juror number 12, which [sic] I struck, sat there with her arms crossed the entire time and there was one sitting behind me who had his arms crossed the entire time. Those are both white jurors. I think that these excuses given by the government are simply pretenses that deny my client and juror number 20, Ronald Porter, his right to sit on a jury free from racial bias.
THE COURT: All right. I think the Government has articulated a nonracial reason for striking juror number 20, so I deny your Batson motion. It is your turn.

The Seventh Circuit later rejected the defendant's Batson challenge, finding that "[t]he prosecutor's focus was on a perceived militant anti-government aspect of Malcolm X, not his race."

In People v. Budzyn, 566 N.W.2d 229 (Mich. 1997), two white police officers were convicted by separate juries of the second-degree murder of a black suspect. It turned out that during a recess near the end of trial, the court provided the juries with several film videos to watch to entertain themselves, including a copy of "Malcolm X," which begins with a video of the Los Angeles police officers beating Rodney King. The Supreme Court of Michigan found that the movie was extraneous prejudicial information which required the reversal of one of the officer's conviction.

Finally, in Hepler v. State, 1999 WL 333421 (Alaska App. 1999), the prosecutor commented during closing argument as follows:

All I wanted was a commitment from you that if I presented the evidence that you had it in you to do the right thing as Spike Lee says. So now it's your job to do the right thing. And if you think about it, everyone else in the community has done their job. The police have done their job, who investigate, and the fire marshal has done his job, the medical examiner has done his job, the court system has provided the facilities and the court who has presided over these proceedings, [defense counsel] has done his job, I have marshalled the evidence for you in a convincing fashion; and the defendant has really had due process. She's had a very fair trial.

On appeal, the Court of Appeals of Alaska rejected the defendant's challenge to this argument, finding that

Viewed in context, the prosecutor's comments explained to the jury the entire process of the investigation and the trial, pointed out that the jury now had to evaluate the evidence, and argued that the evidence presented to them proved Hepler's guilt. Hepler has not convinced us that the argument was plain error.



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