Tuesday, January 23, 2018

Molly's Game: The Truth of Legal Defense in Movies

From the Verge, Molly's Game is a Great Legal Movie
I love watching a good movie. In fact sometimes I even like watching a bad one. Molly's Game was very interesting, and had an inspiring story. I enjoyed the life story of Molly Bloom and the way it was presented. In real court rooms presentation counts for much more than most people think. Like a magician who takes a rather simple trick and using timing, finesse, and a certain "je ne sais quoi" an attorney can create a compelling story for the defense of his client's case.

Overcoming great odds, facing challenges head-on, and rising up from the ashes all make Molly's Game a fun ride. The bonus was knowing that this was based upon a true story and not just a fictional one. In my lawyer (legal) mind I was going through the movie looking at the process from a reality based perspective.

How much of Molly's Game is legal fiction?

How much of Molly's Game is legal truth?

How much of the movie was true to life, and not just in the life of Molly Bloom but what happens in New York Courts daily?

An Upstate Defense Lawyer's Take on Molly's Game

1. Molly's first meeting and interview with the attorney she wanted to hire was real. 

First, actor Idris Elba played his part perfectly. Defense attorneys want one thing more than anything else from their clients, the truth. We don't care if it's painful, or crazy, or makes everything look horrible. We want all of it, warts and all. So many clients will filter their stories and either play up or play down specific parts. It is everyone's best interest and especially the client's to tell the most honest and complete account of everything to their attorney or perspective attorney.

This attorney was tenacious in having Molly understand his part (role) in her defense. Many of us older (mature) defense attorneys are cynical skeptics. After years of hearing bullshit and dealing with made up stories we appreciate the truth. You can't help anyone not willing to tell you everything. I hate getting sidelined. Lateral hits by the prosecution or even the probation departments can derail a defense. Those things you don't know can get found out and then it's too late to think counter moves or defenses.

TRUTHFUL: In my mind this is the most important first communication a defense lawyer has with their client.

2. Molly's defense attorney uses a flat fee and explains the costs of a trial.

He wants a flat fee (retainer) of $250,000 to negotiate the case and go through the hearings, pre-trial.
If the case goes to a full blown trial then it gets costly at 3.5 or 4 million. Now those are some big numbers for some people to get their heads around but we are talking a Federal felony indictment. The guidelines in Federal court are brutal. The terms of incarceration in prison for felonies have little room for true and meaningful negotiation.

TRUTHFUL: This was an honest look at attorney fees.

3. Molly knew the correct percentage of cases that settle pre-trial.

Molly Bloom stated that 97% of Federal cases settle (with a plea) pre-trial. That is factual and the percentage for other criminal cases (misdemeanors) are also in the 90% plus range. Trials in most states and federally are a rarity. Trials are risky, costly, and the uncertainty of outcomes takes a great toll emotionally upon all involved.

TRUTHFUL: Movies sometimes embellish the truth with phony statistics but this was not the case here.

4. The zealous advocacy and passion for Molly's "innocence" by her attorney is real.

At the pre-trial conference Molly's attorney gave an impassioned speech to the prosecutors about why she deserved leniency. As defense attorneys we often have clients that are legally and factually guilty but undeserving of the charges filed or their consequences. This is why I use the term "innocence" in quotations. Because true innocence is rare but true guilt is rarer still.

The police, the district attorneys, and the federal government can often up-charge people. They either over charge or they charge many counts of the same thing. Either way it is unfair to majority of people. It is NOT justice and the government lawyers are supposed to be about justice. What is just in this circumstance? What is fair looking at everything as a whole? What is fair looking at my unique client and their life? Not just taking a bunch of numbers, legal codes, and cold sections of statutes and beating people over the head with their violation.

TRUTHFUL: A good defense attorney will tell a client's life story with persuasive emotion.

5. The Judge over rode the prosecutor's plea offer at sentencing.

The judge in any case aside from the defendant that goes to trial and is acquitted by a jury has the ultimate power. Juries can find guilt or innocence but most cases don't get in front of a jury. Juries aren't allowed to change charges. They have to play by their own set of specific rules and instructions.

Judges make the final decision on plea bargains and in sentencing after guilt has been assessed. Even if the prosecutor wants leniency or the prosecutor wants a harsh punishment it all comes down to the judge. The judge in this movie read everything and looked at the case holistically. He didn't just see an indictment and a defendant. He looked past the papers, and saw a woman undeserving of the consequences of "the justice" the prosecutor was seeking for this crime.

I have stood before great judges. They are really just great human beings acting as judges. They bring compassion with the robe. I have also stood before men and women who brings their own brand of justice to court. They have a philosophy and often principles that don't offer the flexibility that justice demands.

TRUTHFUL: Judges have the ultimate say so in criminal defense sentencing.

6. The Dishonesty of EX-PARTE Communication

Lastly, there was only one thing I found untruthful and bothersome. The judge had a side bar conversation with the district attorney without the defense being present. This is called Ex-parte communication is strictly verboten (not allowed) in the real world of criminal defense. The defense attorney can't discuss a case with a judge privately and the prosecution can't discuss a case with the judge privately. Does it happen in real life? I'm sure that there are judges and prosecutors who share beers and conversation about cases. It is unethical, unprofessional, and illegal in every state.

Having the judge in this movie do it in open court was in my opinion unnecessary but it was dramatic. It let the audience know how the judge felt about the case.

Lawrence Newman is a partner in Newman and Cyr which focuses on DWI and criminal defense in the Fingerlakes region of New York State. contact larry@ithacacdwi.com