There is one thing that Regina Kelly and John Paschall have in common.
Neither wanted to settle the case of Kelly v. Paschall , a suit in the U.S. District Court for the Western District of Texas.
In the fall of 2000, Paschall, the district attorney in rural Hearne, led the prosecution of Kelly and 27 other African-American men and women on drug charges.
The cases were dropped after the key government informant proved to be completely unreliable, and Kelly and seven other former defendants then sued Paschall and other authorities on claims of race discrimination.
The case settled for a confidential sum and would have been largely forgotten had Samuel Goldwyn Films not released last month “American Violet,” a small-budget affair based on the suit.
Separating facts from fiction is hard enough when analyzing any movie “based on a true story.” The task is doubly hard when the subject is a settled suit, for reasons Kelly explained well in an interview last month.
“There’s no justice in settling,” noted Kelly, who said she agreed to the deal for the benefit of her fellow plaintiffs. “Settling is so behind closed doors.”
Recently, Paschall said that he too “refused to settle the case” but explained that the case ended when the plaintiffs agreed to drop him and other individual defendants from the suit in return for a payment from the county’s insurance carrier.
Condensing years of litigation into a 103-minute film is hard, so when I sat down to watch “American Violet,” I braced myself for a journalist’s persnickety disappointment.
I can’t fault the filmmakers for changing the names of the real participants, but my fears were validated as the main characters seemed to come from central casting.
The DA was a racist jerk. The defendant was a beautiful sparkplug fighting only for her innocence and her children. The lawyer who comes to her rescue? A guy from the American Civil Liberties Union named David Cohen.
But Kelly said the movie was “98 percent true,” especially the scenes that would make a lawyer cringe.
In the movie, the character based on Kelly (Dee Roberts, played by Nicole Beharie) meets her public defender for the first time in the jail, where the lawyer is sitting with a prosecutor. Her lawyer tells her to be quiet, says the prosecution has a very strong case, then disappears with the prosecutor for a moment.
When they return, the prosecutor tells Roberts, “You have a very talented lawyer.” Against his better judgment, the prosecutor says with exaggerated resignation, he’s going to offer her a plea bargain of 10 years, with a suspended sentence. She can go home that day.
The public defender urges her to take the deal, which Roberts refuses because she’s innocent.
“He didn’t know anything,” Kelly said of her initial lawyer. “He never wanted to hear what I had to say.”
A later scene shows her character undergoing an abusive deposition by the district attorney’s lawyer. Noting that she has four children fathered by three different men, the lawyer asks, “How many men have you had sex with in the past few years?” Like some other outrageous scenes in the movie, there is disagreement among the participants as to whether this actually occurred.
Said Kelly of what she maintains was a real experience, “It was humiliating. I didn’t expect how bad it could be.”
The two Texas lawyers who are depicted in those scenes take serious issue with how they are portrayed in Bill Haney’s script.
When told of the scene with the public defender, J. Kent Schuster, a solo practitioner in Bryan who was Kelly’s court-appointed lawyer, adamantly denied acting like a case study for indigent defense reform.
“I’ve never done that in my whole life,” said Schuster, a Vanderbilt University Law School graduate.
But the scene, he added, “makes a better movie.”
He said he never tells clients to take a plea deal if they are innocent because “it’s a trap” in which they can get sent to jail later on a probation violation.
As for Kelly, he said he recalls having the case reset several times by the judge, which is a way of telling the prosecution that “we’re not going to roll over.”
Being portrayed as a lawyer not doing his best for a client is offensive, Schuster said, especially since he has a spotless bar record.
Douglas M. Becker of Gray & Becker in Austin, represented Paschall. After he saw “American Violet” he told the Daily Report that it was “more accurate than not.”
But the scene in which Kelly’s character is questioned about her sex history “is a complete falsehood,” he wrote in an e-mail.
“It was a 5-hour deposition. The transcript is 261 pages. I asked her on pages 11 and 12 if she had ever been married — she said no — and who were the fathers of her children. Turns out she had 4 children by 3 different fathers. That’s it. I never asked her anything remotely like ‘how many men she had slept with?’
“Just about every deposition I have ever attended begins with general questions including how many times have you been married, how many kids do you have, and who are their fathers,” Becker wrote.
After seeing the movie, Becker noted that the actor playing his character and that of the ACLU lawyer “were dead ringers for each of us.”
Paschall, who remains the Robertson County DA, said he wouldn’t see the movie under any circumstances.
The character based on him, Calvin Beckett (Michael O’Keefe), arranges for Kelly’s character to be fired from her waitressing job (Kelly said this happened; Becker said his client didn’t arrange it) and oddly presides over a hearing in which Kelly’s character has to beg him to keep custody of her kids. With a sneer, he grants her request. (Kelly acknowledged that Paschall did not control child custody decisions but that “he did all the talking” at a hearing.)
A climactic scene occurs when the DA is deposed by one of the ACLU lawyers, who is African-American. After being confronted by videos showing his ex-wife and daughter saying how often he calls African-American people “n—-rs,” the prosecutor explodes, calling the African-American lawyer “uppity.”
Paschall did not call anyone “uppity,” according to a transcript of the deposition, but he was presented with affidavits in which his ex-wife and daughter said Paschall extensively used the N-word.
Ronald C. Machen, a Wilmer Cutler Pickering Hale and Dorr lawyer working pro bono for the plaintiffs and who is African-American, conducted the deposition and pressed Paschall on the subject.
Paschall said he had used the N-word to refer to white people.
“I was highly agitated” during the case, during which he said the ACLU used “dirty tactics.”
He denied being racist or targeting African-Americans for prosecution.
“If I was racist, I wouldn’t be re-elected,” he added.
In the movie, the legal team representing Kelly’s character is made up of three people — Cohen, played with geeky sincerity by Tim Blake Nelson; a cop-turned-lawyer Sam Conroy, played by Will Patton; and the ironically named Byron White, an African-American lawyer with no apparent relation to the late U.S. Supreme Court justice of the same name, played by Malcolm Barrett.
Cohen is based on Graham A. Boyd, who heads the ACLU’s drug law reform project from Santa Cruz, Calif.
Boyd said the movie is about 80 percent to 90 percent true, but noted that his legal team was about 25 lawyers, many of them pro bono lawyers from WilmerHale.
One factor in the decision to settle, he said, was a mock trial the team conducted before three separate juries of Texans assembled by a pro bono jury consultant.
The results, he said, showed that “we had a fair chance of winning a favorable verdict.” But that also meant they had a fair chance of losing.
He said he understood Kelly’s reluctance to settle the case because “part of what people want is a sense of vindication.”
David E. Moore, a cop-turned-lawyer from Groesbeck, was the basis for Conroy. He said he was amused at how Patton used the same kind of eyeglasses, cowboy boots and jewelry as he did and even carried his actual briefcase in the movie.
Moore said he was brought in years into the litigation to help prepare issues surrounding drug enforcement and that his character is way more involved in the movie version than he was in the actual case.
The WilmerHale lawyers, he said, “did the lion’s share of the work,” especially on getting the case past numerous hurdles based on Paschall’s and the other authorities’ claims of government immunity.
Machen estimated WilmerHale donated “millions” in billable hours to the case.
He said he wasn’t upset the firm did not get recognized in the movie because “that’s not why you do a case like that.”
Jonathan Ringel is the managing editor of the Daily Report, an Atlanta affiliate of Texas Lawyer in which this article originally appeared.