Dawn Porter on the Importance of the 6th Amendment and Courtroom Access

From the 2013 Sundance Film Festival, Dawn Porter discusses her documentary 'Gideon's Army.'

Dawn Porter

This interview was originally published on the Documentary Channel blog on January 24, 2013.

One of the documentaries I keep hearing about at the 2013 Sundance Film Festival is Gideon’s Army, which has reportedly been receiving standing ovations from audiences all week. I previously wrote about the film, which follows three public defenders in the South, in a posting of its two trailers, and since then I’ve had the chance to see it and talk with director/producer Dawn Porter.

In the interview, conducted by phone on Tuesday afternoon, Porter talks about making the transition to directing for this project (she’s been a movie producer for a number of years now) and why she’s so passionate about sharing the stories of public defenders and why it’s important for filmmakers to be allowed access to prisons and courtrooms.

What made you decide to document public defenders? This film is not about a specific case nor does it seem to have been triggered by any event. It’s an existing and ongoing story.

Dawn Porter: That’s exactly right. It’s so right that people are so familiar with “you have a right to an attorney,” etc., the Miranda warnings, that they think that has always been the case, when actually it’s only been 50 years, since the Gideon decision. Public defenders, as the lawyers who are charged with defending people’s rights, are also a fairly recent improvement and protection for civil liberties.

I’m a lawyer — I was a civil litigator, not a public defender — and I got introduced to Jonathan Rapping, whose program, which is now Gideon’s Promise (formerly SPDTC), is based in Atlanta. What he does is take recruits, public defenders from around the Deep South, for two weeks to an initial training program in Birmingham, Alabama. We were introduced by a mutual friend from the Ford Foundation, Kirsten Levingston. She knew I was working on some documentary topics and said their work is really interesting and we would just like each other. He has a really big personality and is a captivating person, and he invited me down just to see what they were doing. I couldn’t believe it. I couldn’t believe the energy. The legal talent. The commitment.

And they also, during the training, talk a lot about what is wrong with the criminal justice system and what they’re trying to correct. It really moved me and made me think, if I’m a lawyer and I care about social justice issues but I’m not intimately familiar with the criminal justice system, there are probably a lot more people like me who really don’t have a good understanding of what happens to so many people in this country. That’s how it started.

There are so many documentaries that follow a single case, and even those usually feature a hired defense team. Even if they’re pro bono they’re not public defenders, so these are not people we usually see in films.

We don’t. And yet public defenders represent probably more than 80% of criminal defendants. But the cases we see are usually like Johnnie Cochran or high-profile defense lawyers. And then you hear about a public defender as a last resort, the bad lawyers you can get if you don’t have any other options. What I saw was exactly the opposite of that. So, I thought that was really interesting.

Americans are fascinated with crime, and we love courtroom dramas. I do too. One of my favorite documentaries is Murder on a Sunday Morning. Great case. Great film. Fantastic film. But it’s a single case. This is a compliment to those films. This is the backdrop, in which a criminal defense attorney who represents poor people is working. That’s how I think this can add to the body of films that document pieces of the criminal justice system.

There’s a lot to talk about in the criminal justice system. I want people to see them all and get curious about it, understand it. I don’t think any one of us does the whole banana, but together people can really… People have different entryways into different topics. Following public defenders is interesting, and I hope it leads people to more questions and go out and look for themselves and keep interested about what is happening.

One thing I find fascinating about public defenders that we rarely get to see addressed is that they defend people who are guilty or partly guilty, they don’t just latch onto a case because they believe a person is innocent.

Absolutely. We like to root for the underdog. I adore the Innocence Project. They do spectacular work. But I said to myself that I don’t want this to be the Innocence Project. Those are sympathetic cases that anybody can get behind and understand. What I’m more interested in is, we have a system, we have a Bill of Rights, and what public defenders are cast to do is protect the 6th Amendment, the right to a fair trial.

That fundamental idea of fairness is something that’s ingrained in American culture. That means the process is fair and the results should be just. If the process isn’t fair, how can the results ever be just? We can’t only be fair to those people who “deserve it.” We have to be fair to everybody. That’s how the system is set up. And that’s what we have to protect.

You said you were working on some documentary ideas already. Were you looking for something to direct? How did you decide to finally direct a film after starting out as a producer?

I had started working on a project about the civil rights movement, a historical film. Also in the South. It’s about how the State of Mississippi established the largest domestic U.S. spy operation ever. It was focused on stopping the civil rights movement. They hired spies to infiltrate the movement, record, take notes, follow people around and do whatever they could to intimidate people to not participate. I was really interested in that.

That’s what I had gone to the Ford Foundation with. And they said, “Well, we’re not really funding historical docs. But if you’re interested in making a documentary on legal issues…” And then I was introduced to Jon Rapping. So, ironically, I’m finishing the public defender documentary first, but I actually just delivered a rough cut of the Mississippi documentary. I’m still working on the other one.

How many public defenders did you start off with as potential characters?

When I went down to Birmingham, I just asked who might be interested in giving me an interview. Travis and Brandy both agreed, as did June and a couple of other people. I started off following about five of them. I went to their states and met with them, and then my producer came out said, “No. You can’t do five. It’s too many. It’ll get distracting.”

Eventually, what really ended up happening was I really wanted to be filming in court, and they wouldn’t let me film in court in Louisiana. So two of the other people who I was interested in, who are great characters, I couldn’t film them doing their job.

Then with Travis, I had one interview with him and some footage from my first trip, but then nothing for a year. He wouldn’t play along. He was a tougher nut to crack. But I just knew he’s such an interesting person and so watchable. You get a real sense of the feelings a lot of public defenders have. I don’t think they he express it that way — he’s quite a character. But he really does represent their feelings, I thought. So finally he agreed after I hounded him for a long time.

So you filmed for more than a year? Did you also end up filming a number of different cases and then weed them out later?

We filmed a couple others. We filmed in court a few times. You know, 90-95% of cases don’t go to trial, so there were not a lot of trial options. I was looking for some engaging people who would be willing to have their families talk. That’s how we ended up with Demontes, who I loved right away.

There was actually this other boy in the case from the beginning. I wanted to film with him, but they wouldn’t let us into the prison. He was 17 and had missed his whole sophomore year of high school, and there was no evidence that he was involved in any crime. And he’s a felon. He’s in prison. I really wanted to film him but we couldn’t get access. It was that combination of getting access and getting the schedule and getting the families to participate. It took a little while to find the right ones. We found a couple good options.

This is a boy we see in the film, though?

At the very beginning of the film there’s a scene with Brandy talking to a mother on the phone about getting her son out of prison. What happened in that case, actually, we had just been to visit him and they wouldn’t let us bring the camera in. The facts in this case are really interesting and tragic. He had been out on the street and, in what is a very common occurrence, was arrested in a street sweep near a broken window. The cop accused him of breaking the window and breaking into this gas station. He said, “I didn’t do it.” They said, “Great, tell it to the judge.”

Of course, they set his bond at $40,000, which his mother could not make. So he was in prison. By the time we got to him, he’d been in prison for ten months with no hearing. We got to Brandy’s office that day and, it was just total film luck, she gets this letter from the D.A. offering him to get out if he does this boot camp. Great, except you have to have the money to bond them out, and if you are a poor person on welfare you do not have $3,000. So instead he plead guilty.

It’s an important discussion, that of access to the courts. We might forget or take it for granted because we see so many documentaries and TV trials where people are allowed to film in the court. But there are also so many subjects out there who don’t get such coverage because certain states don’t allow it. I think Joe Berlinger brings it up a lot about how important it is to allow cameras into the courtroom.

He’s so right. I really admire him and am thankful. In Travis’s courtroom, I had filed a motion, because I’m a lawyer. I read the rules, called up the court and they said this is the motion you have to file, so I filed the motion even though I’m not admitted in Georgia. Then I get down there and they’re like, “We think it’s going to be okay, but we don’t know.” And Judge Beale says, “We have a number of motions to hear.”

I didn’t realize I was going to have to argue the motion. “We have a request from Trilogy Films to film courtroom proceedings. Madam Prosecutor, do you have anything to say?” She said, “I object. It’s distracting…” I said, “It’s an open court, free and fair. We’ll abide by the court’s rules, the statute permits it…” But I hadn’t boned up on the statute. I wasn’t expecting to argue it. And he made a ruling that he thinks it’s important for their system to have an open courtroom. It was good to know as a lawyer that day, I was lucky.

But New Orleans, in contrast, would not only not let us film, but they’re extremely hostile. Probably because bad stuff is happening. New Orleans is notorious for how it treats public defenders. The public defenders office is suing the state for how its lawyers are treated. There was a public defender who ended up in the hospital with broken ribs after being removed by the bailiff by the order of the judge. The public defender makes an argument, the judge says to stop it, the judge orders the lawyer removed from the courtroom, and the next time anybody sees him he’s got broken ribs.

That’s what’s happening, so I’m not surprised they don’t let cameras in. New Orleans funds its public defender system through parking ticket revenues, so a time when they didn’t print enough parking tickets they didn’t pay the public defenders. They had to lay off a huge amount of staff. It’s a mess, but it’s very hard to document. Unfortunately, I could tell people stuff but not show it.

What do you most want people to get out of the film? A story? A call for action? Awareness and support for public defenders?

All of those. I like it as a film. It’s a good story. They’re engaging characters. But it’s really a call to action. I’d like people to be as interested in the 6th Amendment and the right to a fair trial as they are in the 2nd Amendment and the right to own guns. I think people should take to the streets and preserve our justice system and right to a fair trial. That’s what we should be outraged about, that anybody could be subject to less than fair laws. That’s the ultimate goal is to make people angry and aware.

But there are a couple other concrete things. Student loan forgiveness. Most public defenders can never take advantage of the current student loan forgiveness rules, because you have to practice for more than ten years and pay your bill on time, as Brandy notes. So most of them quit before they get to ten years. They retain that six-figure student loan debt. Minimum mandatory sentences are a travesty and we should pressure legislators not to have them. Those are a couple of the things I’m interested in having conversations about going forward.

One of the scenes in the film that really shows how much we need awareness of our criminal justice system is when Brandy has to keep stressing so much to the jury that it’s the burden of the court and state to prove guilt rather than her needing to prove innocence. For some reason in this country we weigh on the presumption of guilt and the defender often seems to be the one who has to make the stronger case of innocence.

Right. And the law is the opposite! It’s the state’s burden, if they want to lock you up. When you get locked up, that means you lose all your rights as a citizen. You can not vote, you can be searched at any time, your 4th Amendment right is gone, you don’t have free speech rights, you’re restricted to where you can live. And in many places this is forever with a felony conviction or plea. That burden should be high. It’s high for a reason. It’s a really huge imposition on your civil liberties once you get that conviction.

To have the burden be slipped the way it has been is outrageous. It’s completely the opposite of what the system is supposed to do. You want to be worried about what the Founding Fathers were really concerned about? They were concerned about overbearing government. And we’re in a situation where we have an overbearing government, and people should be outraged about that.

People take it for granted, because we don’t think it’s ever going to be us in that courtroom.

Except we’re totally wrong about that. 1 in 66 Americans has a criminal record. We have more people locked up and under the supervision of the criminal justice system than any country in the world. It’s very likely that you or someone you love… And if you think hard, you can probably come up with someone that you know or know tangentially who has been through the criminal justice system. They may have been represented, but once people really think about it, that’s when they get upset.

I always say, “How would I want my kid to be treated? That’s how everybody should be treated.” It’s more likely than people think that they will have some experience with the criminal justice system. Most people don’t think they’re going to be arrested. But it’s totally up to the police to decide who they arrest. It’s not up to us.

Reprinted with the permission of Participant Channel, Inc. © Participant Channel, Inc. 2014.

(Editor in Chief)

Christopher Campbell is the founding editor of Nonfics.