New crop of documentaries make the case for prosecutorial misconduct

It was after a late screening and the group of several hundred was aggrieved, its moral hackles raised.

“How could they treat him so badly?” one audience member asked.

“An injustice,” said another.

“What can people do with their frustrations?” asked a third.

The setting was neither a courtroom nor an activist meeting. It was at the Sundance Film Festival, and the assembled had just watched “The Internet’s Own Boy,” Brian Knappenberger’s quietly evocative look at wunderkind hacker Aaron Swartz, whom the film suggests was driven to suicide in 2013 by a zealous federal prosecutor in Massachusetts.

“We have real problems with our justice system,” Knappenberger told the audience. “We’ve given a lot of power to prosecutors. Our system needs an overhaul.”

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Ever since Errol Morris’ landmark 1988 “The Thin Blue Line” led to the freeing of death row inmate Randall Adams, modern nonfiction films have been making the case for the wrongly accused. But in the age of rampant surveillance and unauthorized wiretapping, the U.S. documentary appears to be entering a new era, one in which the prosecutorial overreach film is not just the blood-boiling exception but a prevalent theme.

At the recently concluded Sundance — with four of the five 2014 Oscar nominees originating there, the festival is a key barometer of the documentary zeitgeist — nearly a half-dozen films contained this undercurrent. They included a wide range of subjects, in movies revisiting the case of Pamela Smart (the New Hampshire woman serving a life sentence for conspiring to kill her husband in 1990), the recently convicted Boston gangster Whitey Bulger and even an instance of the FBI confiscating a discovery by South Dakota paleontologists as prosecutors racked up charges against them.

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“You walk away from these films thinking that in our system of justice there are three parts,” said Thom Powers, who programs documentaries for five film festivals. “There’s a trial, then an appeals process, then there’s a documentary.”

By injecting themselves into the legal process, these films — many will play on TV and in theaters in the coming months — have opened a powerful storytelling vein and shone a light on perceived injustices. At this Edward Snowden moment, creators say, they tap into perceptions of government run amok. But they also create tricky conditions for filmmakers and the form.

Story twists

When Joe Berlinger decided last year to make a film about Whitey Bulger he hardly wanted to exonerate the mobster. In pursuing the case, though, he slowly began to see a more complicated portrait of those who’d come to accuse him: Bulger, he came to believe, may not have been an informant for the FBI but a man who received tips from the FBI.

And so in the upcoming CNN movie “Whitey,” Berlinger — a pioneer of the prosecutorial-overreach subgenre with his 1996 West Memphis Three film “Paradise Lost” — makes a powerful, contrarian point about the prosecution. Even those horrified by Bulger’s acts may emerge wondering whether the FBI’s role in enabling his reign of terror was far bigger than coverage of the trial suggested.

“I’m not an apologist for Bulger; he’s a brutal, vicious killer,” Berlinger said. “But he should have had a full and meaningful defense. There are too many swirling questions of corruption [among law enforcement] that have yet to be answered, a horrendous level of malfeasance that’s gone unaccounted for,” referring to a group that has largely gone uncensured.

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The director has built a career on slowly uncovering prosecutorial misconduct. “Paradise Lost,” a key early text in the genre, began as a look into the negative influence of heavy-metal music until Berlinger arrived in Arkansas and found a very different story, as the three young men accused of murdering boys as part of a Satanic ritual began to appear innocent.

Indeed, many of these filmmakers didn’t look to become advocates. Todd Miller, director of the Sundance breakout “Dinosaur 13,” which will be released to theaters by Lionsgate this year and will also air on CNN, said he wasn’t sure whom to believe when he first optioned the book “Rex Appeal” by Pete Larson that recounted how Larson’s discovery of the fossil of a Tyrannosaurus rex known as Sue led to a confiscation by the FBI. But extensive interviews convinced Miller that the U.S. government had overstepped its bounds.

“I didn’t set out to be an activist, but if you have a compelling story it almost forces you to become one,” said the Brooklyn-based Miller.

Lest one think these incidents are uniformly liberal crusades for victims’ rights, “Dinosaur” plays to the other end of the spectrum, implying that the federal government, aided by a byzantine bureaucracy, has trampled on free citizens’ entrepreneurial spirit.

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If the politics of many of these films are a blend of left-tilting progressivism and right-leaning, government-skeptical libertarianism, they also offer dual narrative approaches. The overreach film combines a documentarian’s interest in the facts and fine print with the unconventional thinking of a conspiracy theorist who believes there’s far more going on than the official story.

Those impulses underlie Jeremiah Zagar’s “Captivated,” a Sundance film set for airing on HBO this year that argues that the excessive media coverage led to the jury prejudging Pamela Smart and sealing her fate. And they are clear in Tony Gerber and Maxim Pozdorovkin’s semi-sympathetic depiction of the central figure in the festival’s “The Notorious Mr. Bout,” about a Russian-born arms dealer named Viktor Bout serving a long sentence in a New York jail. They are also sure to be themes in NSA expert Laura Poitras’ Edward Snowden documentary set for this year, one of the most anticipated of the current crop of prosecutorial-themed films.)

But the movie that perhaps most pointedly crystallizes these ideas is “Internet’s Own Boy.” The movie’s procedural march through Swartz’s alleged crimes leads to an emotional conclusion in which one feels the loss of a great mind because of questionable government motives that had more to do with ego and example-setting than justice.

“I’m so angry,” said an ex-girlfriend and former colleague of Swartz’s as the Sundance audience nodded along.

Blurred lines

While activism can be a dry affair, a wronged victim offers an appealing hook, playing to an innate sense of justice. But it also means something else: a blurred line between advocacy and journalism.

All of these directors say they are not partisans but journalists who have come to believe one side of a legal battle. But not everyone agrees. When Ken Burns and two co-directors on last year’s “Central Park Five” (which posited the probable innocence of the young men convicted of raping the Central Park Jogger in 1989) argued journalistic privilege in refusing to turn over footage to the city of New York, the city fired back that the filmmakers were advocates, not journalists. (The judge sided with the filmmakers.)

Sheila Nevins, the president of HBO Documentary Films who helped define the modern documentary by backing films like “Paradise Lost,” said filmmakers walk a tightrope when they enter the judicial process. It is fair to explore questions of wrongful convictions and let viewers draw conclusions, she said, but more bold assertions should be left to others.

“We can say that’s our privilege as documentary filmmakers, to open the jail door,” she said. “But the truth is we don’t have the key, and I don’t think we should have the key.”

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Andrew Jarecki, the documentarian who in the decade since his “Capturing the Friedmans” became a sensation has come to believe the film’s primary character, Jesse Friedman, is innocent, has spearheaded the legal effort to remove Friedman from the registry of convicted sex offenders. Jarecki has said he has come to accept his role as an activist, one who sees less ambiguity in the case than he did when he made the film. That poses no ethical contradiction, he said; much of the new evidence came about as a result of the movie’s release, which prompted witnesses to come forward with new testimony. Still, he sees some downsides to blending his roles. “It takes a lot of time,” Jarecki said of his legal effort. “It’s basically another job.”

That these films are all happening at the same time as mainstream news organizations have trimmed their budgets for long-form investigation is no accident. The years-long effort required to unearth new evidence of government malfeasance is not a priority for cash-tight organizations concerned with satisfying the 24-hour news cycle. Powers said that “With all these cutbacks, documentary makers have filled the gaps.”

Powers added that even when media companies such as CNN and Netflix launch new documentary divisions, they have been able to offload the cost. “From a crassly economic point of view, if you’re a CNN it’s a lot cheaper to come in and acquire a film after an independent filmmaker has spent a year or more doing the heavy digging and brought up results than trying to fund that kind of investigation from the beginning.”

Vinnie Malhotra, who runs CNN’s documentary division, said that it’s more than economics driving the model. These kinds of stories, he said, are also more bulletproof when coming from outside sources.

“If these stories come from a mainstream news organization, there are often going to be accusations of an agenda,” he said. “But when an independent filmmaker spends two or three years engaged in a story that lays out the abuse of power, it’s a very difficult thing to kick back at.”

That passion, said “Internet’s Own Boy’s” Knappenberger, is what’s fueling the trend in the first place. “There are more films like this than there have ever been,” he said, “because the system is more broken than it’s ever been.”

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