By W. Clay Abbott
TDCAA DWI Resource Prosecutor in Austin
Sheltering in place has been rough for a guy whose job is traveling around the country and making presentations to crowds. There have been several moments when I’ve pondered, “What do I do now?”
On one of those days I re-watched the 1992 movie My Cousin Vinny. If you have never seen it—and there might be quite a few of you who haven’t because it’s almost 30 years old—put this article down, step away, and go watch it. Really. (Also watch To Kill a Mockingbird while you’re at it.) I will wait for you.
This movie is chock-full of lessons for prosecutors, a lot more than just the advocacy portions I have seen in so many PowerPoint presentations in the past few years. It shouldn’t be surprising because the director, Jonathan Lynn, has a law degree and insisted the film’s legal proceedings be realistic. They’re so helpful, in fact, that I’m going to share several overlooked lessons from the movie.
Obviously, this column contains spoilers. But I’ve already told you to go watch the movie—seriously, your jurors have seen it and so has your judge—so I will now continue as if you’ve watched it. Proceed at your own risk if you have not.
Mirroring real life
The plot of My Cousin Vinny is a classic fish-out-of-water tale. Two New Yorkers (the original Karate Kid, Ralph Macchio, plays Bill Gambini, and his college friend, Stan Rothenstein, is played by Mitchell Whitfield) are driving through rural Alabama on their way back to school when they are falsely accused of murder. One of them calls his cousin Vinny Gambini (Joe Pesci at his best), a loudmouth lawyer with no trial experience, for help.
Part of what I love about this movie is that it matches my own experience as a prosecutor more than any other legal drama or comedy ever made. It ratifies every single one of my own hard-earned, experience-based prejudices against judges, public defenders, and small-town hotels. (Cognitive bias, I know.) But as I watch Vinny and his girlfriend Mona Lisa Vito (actress Marisa Tomei in a role for which she won an Oscar) check into a progression of hotels with progressively terrible alarm clocks, I laugh because I have been there—yes, to places just as bad and even worse. The scenes with the judge, played by character actor Fred Gwynne (the one-time Herman Munster), also seem very familiar, but perhaps that says as much about me as it does about judges.
The prosecutor, Jim Trotter III, is played by an excellent and familiar actor you probably cannot name, Lane Smith. He plays the part very well. He has many moments that make him unlike most movie prosecutors. When he and defense counsel Vinny Gambini are sharing back-stories in Vinny’s first visit to the prosecutor’s office, he relates his own: “My conscience got to me. Wouldn’t I be better off putting the guilty in jail? Well, that is what I have been doing, and I am better off for it,” he says. But District Attorney Trotter also shows, despite his glib comments, that he truly believes his job is to see justice is done. In the exciting finish, neither a judge nor a jury declares our wrongly accused protagonists not guilty—rather, District Attorney Trotter moves, “Your Honor, in light of Ms. Vito’s and Mr. Wilbur’s testimony, the State would like to dismiss all charges!” How he says it matters: He has a huge grin on his face. He delightedly declares victory in the midst of dismissing the charges—just as any prosecutor should when we see that justice is done. I love this moment in the movie because it is real. Most movie portrayals of similar events miss the mark.
There are many other moments worth mentioning.
Lesson No. 1: Prosecutors are not the star.
There is a reason prosecutors in movies are played by more obscure actors: We are not the star of the show. When we try for that role, we end up the villain.
Boy, this was a hard lesson for me to learn. Seeing this movie again reminds me of the hardest advocacy advice I have ever been given. My misdemeanor chief in Lubbock County at the time, Rusty Thornton, once sat me down after a misdemeanor loss and a conversation with my judges and told me, “Abbott, clever is not your friend.” Ow. Cleverness was my favorite thing about myself. But he was right. It was great advice it took me years to fully follow.
In the movie, DA Trotter makes a couple of “clever” mistakes. During opening statement, he tries to be chummy with the jury and refers to “all our little old ancestors back in England.” The look on the faces of his black jurors proves the validity of Rusty’s advice. Later, on direct of his expert, he plays to the jury by turning the word identical into “EYE-den-TA-CULL,” with an accompanying jazz hand flourish. I laugh out loud every time I see it. Again, he proves Rusty’s point—clever is never a prosecutor’s friend.
Lesson No. 2: Never count on the judge to protect the verdict.
This too was a lesson that was hard-earned. Vinny goes most of the movie bumbling with procedure and the law, but finally, when the DA calls a surprise witness, Vinny makes exactly the right objection. Judge Chamberlain Haller finally gives Vinny his first compliment in court: “That is a lucid, intelligent, well-thought-out objection.” Then the judge promptly follows with, “Overruled.”
I learned that a judge who always rules your way is much more dangerous to a prosecutor than one who slams the door on you sometimes. I had to advise many of the prosecutors in my office to be very careful what they asked for in court. Sometimes you get what you ask for, and sometimes you shouldn’t. A prosecutor should always be the first and most important barrier against reversible error in court. This is hard to do in the blazing heat of battle, but it separates good prosecutors from great ones.
Lesson No. 3: The real key to cross is not technique but preparation.
I have seen a number of great cross techniques taught with My Cousin Vinny clips—it may contain some of the best cross-examination examples on film anywhere. Controlling a witness— perfectly demonstrated. Building a cross one fact at a time—flawless. Using photos and demonstrations—funny and dead-on. Go watch the trial part of the movie again; it is a clinic on cross-examination. (I am glad defense lawyers do not love the movie as much as prosecutors do and don’t take its lessons to heart. Those defense lawyers who have learned that kind of discipline and focus on cross are formidable in court.)
Notice how disciplined Vinny’s cross examinations are. Vinny can laser-focus his cross because he is prepared. He knows exactly where he is going with each question. He absorbs each witness’s testimony. He knows each vantage point better than the witness or prosecutor. There is no fishing. There are no tricks.
This too took me a while to learn. Sure, cross is an artform, but like good art, it never happens on accident. Preparation (and the focus it allows) make a great cross-examination.
Lesson No. 4: Prosecutors never win cases by themselves.
During a lunch break right before the defense puts on its case, a very familiar scenario takes place. Like every trial attorney ever, Vinny is deep in thought about his case. He then must interact with someone he loves, and the trial attorney in him lashes out.
Mona Lisa asks, “Can I help?” and Vinny just goes off. (If you have been doing this job long enough, you have also had these embarrassing moments where you take out tension on the wrong people.) He declares, “No, you can’t help! I wish you could, but you can’t!” Turns out he is completely wrong. Mona Lisa as his unexpected expert saves the case.
In the final scenes, we return to their earlier fight. Vinny explains his sour mood after winning: “My problem is I wanted to win my first case without help from anybody. Well, I guess that plan is moot.” Anybody relate?
Mona Lisa sets him straight: “You know, this could be a sign of things to come. You will win all your cases—but with somebody’s help, right?”
“Oh my God, what a f—ing nightmare!” Vinny responds.
It’s maybe the best lesson in the movie. I learned this one slowly as well. I never won a case alone. I had a victim assistance coordinator, an investigator, at least one support staff member, an officer, or a witness in every case who owned the victory more than I did. Because I was young and stupid, I missed way too many opportunities to acknowledge it. So, to many more folks than I can list here, thank you. Vinny is wrong on this one—it’s not a nightmare to win with help.
Other minor lessons worth a mention
Apparently, Alabama had open file discovery before the Michael Morton Act. (When you are behind Alabama …)
Always keep an eye on opposing counsel. There’s a moment where Vinny is watching the DA furiously conference with his expert and then not call him to the stand. It was the perfect time for Vinny to recall that witness.
Recorded confessions were probably overdue. Without a recording, Bill Gambini’s question, “I shot the clerk?” easily and understandably turned into a statement: “I shot the clerk.” But if we’d been able to watch a video of the conversation, we would all know what the suspect said and that it wasn’t a confession of guilt.
Sometime soon, set aside two hours to watch (or re-watch) My Cousin Vinny. You’ll come away with some of the most realistic depictions of trial strategy and courtroom procedure on film and a few important lessons for your own practice of law.