Picturing Justice, The On-Line Journal of Law and Popular Culture

Rob Waring
Rob Waring


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The public consequences of a jury foreperson asking a question during a trial is the subject of the 1934 film, Midnight, based on the play of the same name.














 Saxon's lawyer appears and begs the foreman to help, but he replies, "I was a mere instrument of the law; it doesn't concern me personally."

Feature article

Call it Murder at Midnight by Rob Waring

I recently had the experience of being on a civil jury. In California, many judges allow jurors to ask questions of witnesses, usually via a note handed to the judge. Being a curious lawyer, I somehow felt compelled to ask several questions during the trial, more than all the other jurors combined.

I was also elected foreperson of the jury. Normally, in civil and criminal cases, the jury deliberates only once. With the foreperson not being selected until the jury enters the jury room, the foreperson's only leadership role in the courtroom is the brief period during which the verdict is announced. My experience was a bit unusual, in that the trial was bifurcated. Our jury heard evidence on liability, deliberated on that question, and-after finding the defendant liable to the plaintiff-heard more evidence on damages before deliberating on an award. Thus, I was foreperson during the courtroom portion of the trial.

When we returned to hear evidence during the damages phase, I felt very different than I had during the liability phase-when I had not yet been elected foreperson. During the second phase, I realized that my demeanor was being more closely watched by the counsel for both sides, and during breaks, jurors were asking me questions such as how much longer the trial would likely continue. This attention included having one juror pass me notes with questions that I was presumably to hand to the judge. Being elected foreperson in the privacy of the jury room, I had not expected that I would become the public face of the jury during the second phase of trial.

The public consequences of a jury foreperson asking a question during a trial is the subject of the 1934 film, Midnight, based on the play of the same name. It was subsequently re-released under the title Call it Murder. I accidentally saw the film for the first time just three days after the conclusion of my jury experience, and it made my concerns seem pretty trivial by comparison. Unannounced and unscheduled, Call it Murder mysteriously appeared at the end of an evening of Humphrey Bogart films on my local public television station.

Call it Murder begins as Ethel Saxon, on trial for murdering her husband, is testifying. It seems she became suspicious that her husband was going to leave her, with his withdrawal of a large sum from the bank confirming her fear. In a jealous rage, she foiled his planned departure with a bullet. A juror, later identified in the press as the foreman, asks her whether, after shooting him, she took the money. Her affirmative reply apparently seals her fate, according to subsequent press interviews with other jurors, because her having taken the cash showed premeditation for the murder. The jury returns a verdict of murder in the first degree. (The film never raises the alternative theory of felony murder-murder occurring during a robbery.)

After Saxon is sentenced by the judge to die in the electric chair, newspaper editorials and even members of the jury foreman's family question whether manslaughter-a homicide occurring during the heat of passion-might have been a fairer verdict, as it is not punishable by death. The film's principal spokesperson for the forces of compassion is the daughter of the foreman, Stella. Coincidentally, during the trial she meets Garth Boni, a shady character played Humphrey Bogart. Smitten, she falls in love.

Four months later, it is the eve of Saxon's execution. Both she and the jury foreman have become unwitting fodder for the tabloids. We see snippets of her last tearful hours interspersed with scenes of the foreman's living room, as he struggles to justify his role in the impending execution. Members of his family variously console him, conspire to exploit his travails in the press, or attempt to persuade him to renounce his murder vote. Saxon's lawyer appears and begs the foreman to help, but he replies, "I was a mere instrument of the law; it doesn't concern me personally."

Meanwhile, the foreman's daughter is struggling with her own demons. It seems the object of her affections, Bogart's character, Boni, is about to skip town and dump her. While the minutes until the midnight execution tick down, Stella joins him in his car for a final farewell. He repeatedly tells her to "Snap out of it, kid," but finally confirms her suspicion that he is leaving her for another woman. As the clock strikes midnight and the executioner's hand pulls the switch on the electric chair, Stella grabs the gun in Boni's shoulder holster and kills him. Back home, the jury foreman appears relieved that his unwanted notoriety nightmare has ended, not realizing that things are about to get a lot worse.

Stella returns home in a daze, with the Boni's gun still in her hand. The family, recovering from its collective shock, struggles to find an alibi or defense to the crime that will shield Stella from culpability. Only the father insists that she face the consequences for what she has done. In this dialogue, the father argues with a reporter who is posing as family friend:

I love my daughter, but she broke the law.
Do you mean to say that for a set of dried up laws that are being smashed to bits everyday by professional criminals that you'd . . . .
But, I'm not a criminal.
Don't you think about human beings? Stella, your own child and you mumble about law.
You want me to obey the law, except when it hits me.
Something happens when we all get together and kill somebody [referring to Saxon's electrocution]. Something happened to Stella tonight. The killing meant something to her [referring to Boni's death]. It seemed to her to be brave, even righteous.

The district attorney who prosecuted the murder case has politically benefited from the conviction. Sensing that the DA might be more sympathetic to Stella than the police, the family implores the foreman to call the DA for help, which he eventually does. When the DA arrives a short time later, the foreman tells the DA:

If she did it, she must stand trial.
You mean you won't oppose it?
Like you said to the jury at the trial, the law is the same for everybody.
I see.

But the DA doesn't see, and he questions Stella about her relationship with Boni. The foreman interjects that Boni was a foreigner, awash with cash, whose business was debt collection. Noting that Stella has been obsessively concerned about the impending execution and overwhelmed by her lover's imminent departure, the DA declares that a "psychological quirk" has caused Stella to mistakenly assume responsibility for the gangland killing of Boni.

Thus, the DA exercises his substantial discretion not to prosecute Stella (and thereby avoids raising questions about Saxon's conviction and execution). Obliquely noting his power, the DA says, "I'm glad you were wise enough to call me in before the impersonal machinery of the law." The DA buys the silence of the reporter (who had been pretending to be a family friend) by giving him an exclusive on the Boni gang slaying.

The foreman's perfect vision of the law has gone completely out of focus, and he implores the DA give him something that will restore his sight.

I've got to get this straight.
It's a perfectly clear case, another gang killing, that much is obvious. Whether it will ever be cleared up . . . .
[reporter] is up to the district attorney.
[foreman] And Ethel Saxon?
[DA] It often happens that the law is better served by applying the spirit rather than the letter. Whatever may happen in any particular case, justice is done."

It has been said that the law is not an abstract set of rules, but a reflection of our attitudes and practices in our relationships with others. Wide gaps in the socio-economic status of individuals in our culture are reflected in wide disparities in how the law is applied. The law manifests itself through the judgments of individuals charged with its enforcement, such as police officers, prosecutors, judges and juries. That jury foreman in Call it Murder thought he was "a mere instrument of the law," but in the end, the law was a mere instrument for the DA and for him, with very different outcomes for Ethel Saxon and Stella.

Despite its melodramatic plot devices, Call it Murder raises some disturbing questions about justice. Eventually, we're all to blame for the answers.

Posted November 19, 2001

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