Doc Talk: The Murkiness of Documentary's Benefit to Its Subjects

Doc Talk: The Murkiness of Documentary's Benefit to Its Subjects

Aug 24, 2011

Last week we received positively stunning news that the West Memphis Three, subjects of the Paradise Lost trilogy of documentaries by Joe Berlinger and Bruce Sinofsky, were being released from prison after more than 18 years. The three men, Damien Echols, Jason Baldwin and Jessie Misskelley Jr., accepted an Alford plea, which means their conviction of murdering three young boys in 1993 remains on their record and they are now serving ten years each of unsupervised probation, but they are relatively free in the world and are allowed to maintain their innocence of the crime, even if the Governor of Arkansas still won’t grant them official pardons.

When I first saw the report of this glorious turn of events -- which the filmmakers apparently did not expect, as they are now racing to insert the new ending into the final installment before Paradise Lost 3: Purgatory premieres at the Toronto International Film Festival next month (actually, it now looks like the new ending won't be attached until the New York Film Festival's U.S. premiere) -- I immediately thought of Berlinger’s last major documentary feature, Crude, and how this sudden fortune almost seems to make up for the controversial legal situation of that film, about a decades-long case involving disastrous pollution in the Amazon.

For those unfamiliar or who have forgotten, Berlinger was ordered last summer to hand over select raw footage shot for the doc to Chevron, the ‘villains’ in the nonfiction narrative, which could then be used in their favor against the 30,000 Ecuadorian plaintiffs and their lawyers, aka the film’s ‘good guys.’ This decision was better than an original, broader ruling in response to the oil company’s petition for 600 hours of tape, yet it is still a terrible blow to both the journalistic integrity of the documentary mode and anyone looking to sue a corporation and hoping to garner attention for the cause via the support of a feature film.

Half a year later, the benefit of the footage to Chevron arose when the company sued many persons involved on the plaintiff side, accusing them of a conspiracy to extort an inflated settlement and of manipulating the local legal system. That same month, an Ecuadorian judge ruled in favor of the plaintiffs in the initial suit, ordering Chevron to pay out more than $9 billion in damages, one of the largest environmental verdicts in history. Of course the company is appealing, yet so are the plaintiffs, who originally sought $27 billion and now want more than four times that amount.

The back and forth shall continue -- I believe Chevron’s lawsuit benefitting from Berlinger’s footage begins trial in November -- and I wouldn’t mind if the filmmaker produced a Crude sequel down the road to keep us caught up, as he and Sinofsky have done with the West Memphis Three story. As long as nonfiction cinema has contracted sequelitis, this wouldn’t be a bad addition to the trend.

Or, I’d be interested in seeing Berlinger do a personal documentary about the separate results that have come from these works. Interestingly, while the Paradise Lost films now seem the more constructive, and the director admits the Three’s release is more than any filmmaker could ask for, he and others see it as only partial justice, arguing that they deserve full exoneration. Meanwhile, in the Crude footage situation, Berlinger stated that he was “extremely pleased” with the outcome in spite of it being a “limited victory.”

The discussion regarding the tricky issue of positive and negative circumstances of documentary film being employed in, let alone ordered into, a courtroom was tackled throughout Berlinger’s lengthy and costly dealings with the Chevron subpoena. Documentary magazine ultimately did a story last fall on films as evidence and how this signals the death of objectivity, addressing the legal circumstances of Gimme Shelter, Aging Out (and its reflexive follow-up No Tomorrow), Roman Polanski: Wanted and Desired, Bananas! and Crude. The author, Belinda Baldwin, quotes Shelter co-director Albert Maysles: “You make a film of social significance, and the repercussions go on and on.”

I’m uncertain of when film was first used as evidence, but it was likely before what’s arguably the most significant: the Nuremberg Trials, which featured docs made by the Americans (including much material compiled by future Oscar-winning screenwriter Budd Schulberg), the Soviets (such as Elizaveta Svilova’s Stalin Prize-winning Fascist Atrocities) and even those self-incriminating works by the Nazis themselves. That was a case when the prosecution was the good guys, a rarity for documentary perspectives. Another is the HBO film Hacking Democracy, footage from which helped convict employees of the Ohio Board of Elections back in 2007.

Even for certain murderers, it’s often the defense who might request a film as evidence of good character, as in the case of Nick Broomfield’s Aileen Wuornos: The Selling of a Serial Killer, which you can see employed as evidence in the sequel, Aileen: Life and Death of a Serial Killer. But typically, when its meant to incriminate the defendant, whether he be Michael Jackson’s doctor (with footage shot for This Is It) or a Danish pedophile (with initially subpoenaed footage from De Pædofile Danskere), the protections not entirely granted Berlinger with Crude prevail. Best is, of course, when docs do completely exonerate an innocent man, as in The Thin Blue Line.

This conversation extends, surely, to include a broader consideration of documentary’s benefit versus liability for its real life subjects. Privacy matters and social justice, as the two sides of the coin, are always on the table. But in the case of the West Memphis Three we’re similarly talking about circumstances not involving footage as evidence so much as influence. In fact, the idea of such employment was actually a double-edged issue. On the one side, prosecutors against the Three had attempted to subpoena Berlinger and Sinofsky’s Paradise Lost outtakes. On the other side, Berlinger stated last year, in relation to the Crude business but pointing to his Paradise Lost docs, “If I had anything in my footage that would make the difference between a man sitting on death row or not, I would want me or anybody else to be compelled to turn that over.”

Fortunately for Berlinger, Sinofsky and most importantly the West Memphis Three, the film itself was all that was needed, outside of the courtroom, as it provided enough evidence to garner popular attention and celebrity support, all of which has helped to free the men after all these years. It's scary to think that it can go either way with documentary, though. 



New Releases

Before I get into any upcoming theatrical and home video releases I can genuinely recommend, I should point out that in honor of the West Memphis Three’s release, HBO has begun airing the original Paradise Lost: The Child Murders at Robin Hood Hills and Paradise Lost 2: Revelations starting Monday. At least the first was already a classic of the legal documentary genre before last Friday’s news, but now you’re even more obligated to see it. Besides, with part 3 at festivals this fall (and on HBO in January), you might as well catch up now. The two installments are also on HBO On Demand and HBO GO now through September 30. 

It's rare for a festival favorite to open in San Francisco before New York and Los Angeles, but Matthew Bates' Shut Up Little Man! An Audio Misadventure is about a bit of urban folklore from the City by the Bay, so it makes sense that this humorous and often disturbing Sundance debut will be released there this Friday before coming to the Big Apple in mid September. It should be popular with fans of Winnebago Man and those old enough to remember cassette swaps and zines, if not the specific analog meme of Peter and Ray. 


By the same logic, that film's cultural cousin, Resurrect Dead: The Mystery of the Toynbee Tiles, should be hitting Philadelphia first. Well, Philly doc fans will only have to wait a few days after this curious and mystical film, for which Jon Foy won Best Director at Sundance, opens in NYC on September 2. Other cities and dates through December can be found here. Also, it's currently already available on VOD. Check it out when and where you can. As I say in the trailer (above), "it's as sci-fi as non-fiction can get."

As for home video releases, I still highly recommend the still very under-seen If a Tree Falls: A Story of the Earth Liberation Front, Oscar nominee Marshall Curry's mind-changing film about a young man on trial for domestic terrorism, of the environmentalist sort. See my Doc Talk column on docs that got us rethinking an issue from earlier this summer for more on the film. It comes out August 30.


Join me for another Doc Talk in two weeks (September 7), which is the eve of this year's Toronto fest, which has some phenomenal programming for docs aside from the latest from Berlinger. Maybe I'll do a preview. Until then, follow me on Twitter @thefilmcynic for more thoughts on docs. 


Categories: Documentary, Features
Tags: Doc Talk
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