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The 2012 robbery of a Pay?O?Matic check?cashing store in Queens, New York, which may have drawn inspiration from Ben Affleck’s 2010 film, The Town, earned substantial attention from the 2nd Circuit Court of Appeals on Wednesday. Although judges on the circuit were at odds on whether clips from the movie should have been shown to jurors during the trial charging three men with the crime, the appeals court ultimately decides not to reverse their armed bank robbery convictions.
Akeem Monsalvatge, Edward Byam and Derrick Dunkley were defendants not only for that 2012 event during which more than $200,000 was stolen, but also for a robbery in 2010 where about $44,000 was taken. The two robberies were different. In the earlier one, the robbers wore bandanas. In the latter one, they used police?uniform disguises and lifelike “special?effects” masks and accosted an employee to gain access to the store. In the 2012 robbery, they also poured bleach on the teller counter to remove fingerprints and DNA.
Why the change?
Prosecutors suggested they became more sophisticated after seeing The Town. At trial, after a motion to preclude was rejected, the government showed jurors four clips from the movie.
“You saw clips from a movie, The Town,” the prosecutor said during the summation. “Now, we know the defendants knew about that movie. Akeem Monsalvatge had a shirt depicting one of the scenes we watched, a shirt that he had made, an inside joke. But how did the techniques line up? They used bleach during their robbery…. What about the police uniforms? Yeah, they did that too.”
The defense attorney wasn’t impressed. He told the jurors the 2010 robbery was “like the Three Stooges, these guys don’t know what they are doing,” contrasting that to the “well-oiled machine” 2012 robbery, before sarcastically remarking, “But you know what the key is, the key is they saw the movie The Town, so they got it all right.”
On appeal, the issue was whether the clips were prejudicial.
Circuit judge Debra Ann Livingston writes for the majority that showing the movie was fair game as it “helped to show that the defendants’ modus operandi changed because they decided to incorporate ideas from the movie into their method for committing robberies.”
She also doesn’t think the clips had a strong emotional or inflammatory impact that would pose a risk of tainting the trial.
“Our courtrooms are not movie theaters,” she writes. “But we cannot assume that our jurors — whom we routinely ask to pore over the violent and often grisly details of real crimes — are such delicate consumers of media that they would so easily have their passions aroused by short film clips of the sort at issue here.”
Not everyone on the 2nd Circuit panel agreed with that conclusion.
Judge Analisa Torres thought the trial court abused its discretion.
She writes in a concurring opinion, “Not only is wearing a disguise for a robbery a scene a faire, but, when committing the 2010 robbery, the defendants had already employed the technique of covering their faces using, according to one witness at trial, a ‘cloth mask.’ Thus, with respect to their use of a device to obscure their faces, any similarity between the 2012 robbery and The Town does not tend to prove that the defendants adopted a new approach…. Although some of the techniques employed by the fictional robbers in The Town are similar to the modus operandi in this case, there are significant differences that vitiate the clips’ probative value.”
She also writes that the “goal of commercial cinema is to thrill and entertain,” and that movie-making is a “manipulative art.” She believes that the risk a juror “might conflate fiction and reality is obvious.”
“This circuit has not addressed the use of fictive videos as evidence, but other courts have expressed deep distress about such evidence’s impact on the jury,” she continues.
Nevertheless, despite believing courts shouldn’t risk film clips creating a prejudicial effect on jurors, she finds the error to be harmless in this instance because the evidence against the defendants was “overwhelming, and the film clips’ significance to the crimes charged minimal.”
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