Editor's Note: Film historian Paul Sutton argues in the guest column below that Die Hard Director John McTiernan, left, is unfairly imprisoned. Sutton, based in the United Kingdom, last week completed a research trip to the United States to research the case. He visited McTiernan, who began is serving a year-long federal term in South Dakota at age 62 on false statement charges following a prolonged legal battle.

Sutton is shown at lower right as one of the speakers at a "Free McT" rally last May in Paris to support the director's freedom. Our Justice Integrity Project repeatedly reported on excessive prosecution in the case, beginning in a 2010, Feds Bully 'Die Hard' McTiernan Into Plea for False Statements. McTiernan, at left, was convicted in the wiretapping scandal involving private detective Anthony Pellicano as authorities sought to determine whether Pellicano illegally wiretapped producer Chuck Roven while he and McTiernan were remaking Rollerball in 2002. The photo at lower left shows him saying farewell to his children, age 10 and12, last spring as he began his sentence.

By Paul Sutton

On May 25th 2013, hundreds of French citizens, and one Englishman, gathered at the Max Linder Panorama in Paris to celebrate the films of John McTiernan and to support the campaign for his release. McTiernan’s films include Die Hard, The Hunt for Red October, Predator, and The Thomas Crown Affair.

He is in federal prison in South Dakota. The following month, hundreds more, making a combined audience of almost a thousand, packed screenings of McTiernan's films at the L'institut Lumière in Lyon. The organizer, Arnaud Bordas of the ‘Free John McTiernan’ Facebook page, said “more people attended the events that the theaters could hold. There were people sitting on the stairs and standing at the back. There has never been anything like it”. The Lyon screening was in memory of the late Michael Hastings, the only mainstream journalist in America who had seen through the press release the prosecution published on jailing McTiernan, a man who had spent his life making American films that are enjoyed throughout the world.

According to the prosecution press release, John McTiernan pleaded guilty to two charges of making a false statement to a federal officer and one charge of perjury. For this he was given a twelve-month prison sentence, with no time off for good behavior, a $100,000 fine, and a three-year extension to an already seven-year supervision order that had prevented him from working in the years before his case came to trial. At face value, this punishment seemed harsh for a first time offender. But the charges against McTiernan are serious and a sort-of justice seemed to have been done -- until you look at the detail.

Making a false statement to a federal officer suggests that McTiernan stood in front of an FBI agent and made a false statement to him. That wasn’t the case. An FBI agent was not present when McTiernan allegedly made a false statement so heinous that it landed him in prison. The false statement was a casual answer to a statement made to him on the telephone one evening by an anonymous caller. No badge or ID was ever shown to McTiernan; he was not told he was under investigation, and he wasn’t speaking under oath. He was merely trying to get a man he thought might be a journalist off the phone. He had been bombarded with phone calls from journalists when Arnold Schwarzenegger was running for governor, and had learned that the best way to stop journalists from pestering him was to be polite and to engage them with a short and honest conversation.

The unknown caller wanted information about Dennis Wasser, a prominent divorce attorney then under investigation by the government. McTiernan had hired Wasser years before and had no complaints against him. This seemed to annoy the caller. And it annoyed the prosecution when McTiernan attended a ‘proffer’ meeting with them. They urged him to ‘remember things’ about Wasser. He was candid and honest with them. He couldn’t ‘remember’ things which didn’t happen. By refusing to ‘lie’ to save his own skin, McTiernan was, in effect, strapped to the Salem Witch Trial Ducking Stool.

The case against Wasser, on which the prosecution had spent a lot of tax dollars, collapsed because of the lack of evidence of illegal activity. The Wasser investigation was intertwined with charges against a private detective called Anthony Pellicano.

Pellicano was a Hollywood fix-it man. He had helped to ‘disappear’ sordid claims against Michael Jackson, Tom Cruise, Chris Rock and others. He’d been employed by Wasser and by many of Hollywood’s top film producers including Steven Spielberg and Charles Roven. McTiernan had hired Pellicano in connection with a problem concerning his first wife’s son (by another man). The ‘Wasser’ phone call to John McTiernan came seven days after the press had mocked the prosecution’s lackluster indictments in a four-year long investigation into the activities of Pellicano. The prosecution led by Dan Saunders, an embittered ex-actor who spent six years trying and failing to make it Hollywood, had been billed by the press as ‘attempting to bring down Hollywood’. Dozens of major Hollywood players were targeted in the the FBI investigation, and interviewed with their lawyers in attendance. But not a single Hollywood player was indicted. Seven days of press mockery later, John McTiernan, who was not a part of the original investigation, got a phone call.

McTiernan had just returned to his home in Wyoming, after a long business trip to the Far East, and was eating dinner with his pre-school children when the telephone rang and was handed to him. He had the brief conversation about Wasser, then the caller made the statement: “So that’s the only time you hired Pellicano, right?” McTiernan said: “Yep. Now I’ve got to get back to the kids.” And he put the phone down to end the conversation.

It wasn’t the only time McTiernan had hired Pellicano but he wasn’t speaking under oath and he had no way to verify to whom he was talking. The FBI has a duty to present their credentials and they hadn’t presented their credentials. They hadn’t shown their badge. They weren’t there in person. McTiernan could have hired Pellicano forty times and insisted that the moon was made of cheese and that, under the spirit of the law, should not result in incarceration. He was under no legal duty whatsoever to give information.

For the record, McTiernan had hired Pellicano twice. For a few days, six years before the entrapment phone call, he had hired Pellicano to try to find out why his film, Rollerball, was having unusual production problems in Canada, e.g. there was a fire inside the building which housed the sets, and some of McTiernan’s staff were being harassed and told to hand over part of their pay. One of the accountants received a phone call that scared her so much she asked to leave the country. Such racketeering in Canada had forced an Eddie Murphy film to be abandoned.

McTiernan is shown at left directing one of his many films, which included such major stars at Bruce Willis, below right.

The director did not want to abandon Rollerball and his staff. He called Pellicano in Los Angeles and said: “Do you know something I don’t know? Can you find out what’s going on?”

McTiernan got no relevant information whatsoever from Pellicano, as is made absolutely clear by the recording Pellicano made of their conversation (The FBI didn’t record the phone call which sent McTiernan to prison.) And Pellicano didn’t do anything illegal on behalf of McTiernan, a point confirmed by Pellicano’s employees, partly because Pellicano was also employed by Rollerball’s producer, Charles Roven. The production problems were resolved when Roven, the money man, flew out to Canada.

Background

If McTiernan’s response to the anonymous call is to be considered a felony, it is a slight one in comparison to the misconduct of the prosecution.

In 1998, when rewriting the interpretation of the ‘false statement’ or the ‘18 USC § 1001 Statute’ which existed to protect government departments from contractors submitting false financial documents, The Solicitor General promised Justice Ginsburg (a Supreme Court Justice of the United States) that the Statute would not be used to not prosecute a single count ‘false statement’. That promise was broken when John McTiernan was prosecuted.

Justice Ginsberg had raised concerns (in Brogan vs USA) that the wording of the rewrite could lead to “unreasonable and unintended circumstances”, and that Congress “perhaps unwittingly” had conferred “extraordinary authority” on prosecutors to manufacture crimes.” She noted that the wording of the 1001 Statute gave power to government agents “not simply to apprehend lawbreakers but to generate felonies, crimes of a kind that only a Government officer could prompt.”

Dan Saunders, an over-zealous prosecutor, looking for a headline victory to land a job with a prestigious law firm, used the 1001 Statute to entrap McTiernan and to manufacture crimes against him.

So why did McTiernan plead guilty to such a preposterous charge of ‘making a false statement to a federal agent’, when the false statement stems from the single ‘yep’ during a phone chat with the anonymous caller who had not identified himself properly?

McTiernan’s attorney made it very clear to him that it would be stupid to fight the government with its unlimited supply of funds provided by the taxpayer. The attorney offered McTiernan no defense and told him to plead quilty to the charge which carried a maximum $5,000 fine. The US attorney’s office had not followed their own guidelines, and were wasting public money, by prosecuting a ‘single count false statement’, but McTiernan was advised that a quick guilty plea was the best response. What McTiernan didn’t know was that the attorney who advised him to plead guilty was the former supervisor of prosecutor Dan Saunders. The defense attorney seemed to be working hand in hand with Saunders. Had McTiernan known of this close relationship, the attorney would have been dismissed for a conflict of interest.



Before the sentence was handed down, John McTiernan learned that there was, in fact, a defense to the ‘false statement’ charge and he decided to exercise his legal right and withdraw his guilty plea. Judge Dale Fischer refused his request to withdraw the guilty plea, declared he had committed perjury (when withdrawing the plea), and she handed him a four-month prison sentence and a $100,000 fine.

McTiernan appealed to the Ninth Circuit court of appeal and they agreed that he should be allowed to withdraw the guilty plea. The prosecution, stung by the rebuttal, manufactured and threw additional charges at McTiernan. They now claimed he had made ‘two false statements’ to a federal officer. All stemming from the single unrecorded phone call from an FBI agent who wasn’t following the government’s own rules.

Perjury is rightfully a jailable offence. The charge suggests McTiernan stood up in court and lied profusely to obstruct justice. That wasn’t the case. What occurred is not in violation of a Federal law. The perjury was ‘discovered’ by Judge Dale Fischer, who later ruled on the charge and declared the defendant to be ‘guilty’ (how can the ‘witness’ be the one who sits in judgement?). She claimed that a ‘verbal’ response John McTiernan made under oath conflicted irreconcilably with a ‘written’ statement submitted during the process of withdrawing the guilty plea. The verbal response came when the judge, rattling through the long list of questions of the Rule 11 procedure, such as confirm your name and age, and confirm that you haven’t been threatened, etc..., asked: “Did your attorney or anyone else tell you how to answer any of the questions that I asked you today?” To which John McTiernan replied: “No, he did not, Ma’am” i.e. I am speaking freely my own words and no one has told me what answer I should give. She believed that this answer conflicted with the written declaration he made the following year, when he wrote that his attorney had advised him on the manner in which the questions should be answered, i.e. he was advised to respond “yes or no and not to elaborate”. That is what lawyers are paid to do.

In the spirit of the law, I’m sure that isn’t perjury. It is not comparing ‘like’ with ‘like’ and it is not reason enough to send a good man with no previous criminal record to prison for a year. What could McTiernan have said to avoid the charge? Would it have been perjury if he said his lawyer told him to stand up straight and don’t chew gum?

In the indictment for the perjury charge, the prosecution edited McTiernan’s statement in order to fabricate a charge against him. It was a literal ‘cut and paste’ of parts of his declaration with the words used out of context and out of order - an ethical violation and a violation of the Federal Rules of Evidence.

A motion to ‘vacate the perjury charge’ should have been heard before McTiernan was imprisoned. He had been sitting in prison for more than four months when, on August 8th, 2013, the controversial Dale Fischer, cancelled the hearing. Thus the judge who ‘witnessed’ the so-called perjury, also ‘judged’ it, blocked the motion to appeal it, and with an astonishing yet predicatable burst of bias, Dale Fischer also blocked McTiernan’s right to appeal her judgements to a higher court. Clearly these are the desperate actions of a judge who knows she has done wrong.

The second ‘false statement’ the prosecution succeeded in pinning on McTiernan is that he denied discussing Pellicano’s wiretapping of Charles Roven. The charge doesn’t make sense because McTiernan was never asked about Charles Roven. The FBI’s questions were about Dennis Wasser. Thus McTiernan was charged with making a false statement about something they never asked him about! And no wiretapping took place. How could John McTiernan ‘confess’ to something which did not happen to someone he was not questioned about?

The wiretapping was a smoke screen released by the prosecution. The ‘evidence’ of wiretapping presented by the prosecution would not stand up in court before a jury and has never been verified. It consists of a single edited recording of a Pellicano-McTiernan phone call in which it is clear that Pellicano had obtained no relevant information for McTiernan. The phone call took place so long ago that anything said or done as a result of it was outside the Statute of Limitations. And the ‘evidence’, which is now in the public record and freely available for everyone to see, also contains print outs of ‘Roven Summary Sheets’, which the prosecution claim are “transcripts of illegal wiretapping”. They are not transcripts of conversations they appear to be phone messages, most are single sheets of paper on which is written a single name and a phone number. The names and phone numbers are mostly of crew members working on a film named on the sheets, and that film is Scooby Doo! A film which has nothing at all to do with John McTiernan.

The government prosecution has refused to prove the source and the dates of the sheets. Pellicano and his staff have confirmed that the sheets did not come from their office. In all likelihood the sheets are from a Department of Justice computer not Pellicano’s.

It is illegal to present an edited recording as evidence (the government refuse to release the original unedited recording), and the so-called ‘Roven Summary Sheets’ are clearly preposterous; Roven himself testified at the Pellicano trial that he didn’t know some of the people listed on the sheets. Dale Fischer believed that the ‘Scooby Doo’ sheets were wiretapped phone calls about ‘Rollerball’, evidence that Pellicano wire-tapped Roven “for McTiernan’s own financial gain”, and sent McTiernan to prison.

Clearly, there was government misconduct in filing th charges and in manufacturing evidence against John McTiernan, so why did he make a conditional guilty plea to these charges?

The cards were stacked against him. A biased judge blocked his attempts to get a fair trial. She ruled that McTiernan’s expert witness would not be allowed to testify that the FBI had broken their own rules by not properly identifying who they were (the government had persuaded the court that not knowing who you’re talking to was not a defense). The Judge disallowed questions about the honesty of the FBI caller (Stanley Ornellas) who had been caught lying repeatedly under oath during the Pellicano trial. She refused to compel the government to provide exculpatory evidence .And the list goes on. She handed down Jury Instructions so biased that the Jury would have no option but the find the innocent man ‘guilty’. The prosecution told the defense that Dale Fischer “routinely sentences above the guidelines” and that they would push for McTiernan being sentenced to twenty to thirty YEARS in prison if he fought the case in front of a Jury. At 62 years old that’s a life sentence, and that’s not a risk he could afford to take. Hence the plea-bargain, a conditional guilty plea (which could be abandoned if McTiernan was found innocent of any one of the three charges), the forced abandonment of the right to a trial by jury, and McTiernan leaving himself open to the mercy of a single judge. That’s ‘Justice’ USA style.

The hope was that the judge would see the charges and the lack of evidence against McTiernan for what they were, and that she would be impartial. Unfortunately for him, John McTiernan got a judge who openly admitted she didn’t like him. During his sentencing, Judge Fischer made wrong and fanciful claims about McTiernan’s “privileged” lifestyle and remarked there would be a lack of “fine wines and cheeses” in prison (he lives simply on a cattle ranch in Wyoming). Knowing that “the room wasn’t listening,” McTiernan’s attorney’s decided that the quickest way back to the court of appeal was to make a conditional guilty plea.

One always should be respectful of the law and its decisions. Laws and Lawmakers make their country great but they, the lawyers and the judges, sometimes make mistakes. To err is to be human. But the American prison-for-profit system, presided over by politically appointed judges seems, at times, to encourage mistakes. In 2011, Judge Mark Ciavarella, known for a harsh and autocratic courtroom manner, and who liked to sentence above the guidelines, was jailed for handing out maximum sentences to six thousand mostly innocent children in return for kickbacks from the private prison built to incarcerate them. That is evil on a Biblical scale and America should have learned from it. For years and years Ciavarella was the most respected man in the courtroom. Judicial mistakes damage the country internally and internationally.

On July 2nd, with McTiernan in prison, his attorneys filed a ‘motion to compel discovery’: asking again to be given the evidence the government claimed to have against him. Prior to McTiernan’s conditional guilty plea, Judge Dale Fischer had instructed the prosecution to give McTiernan the evidence, i.e. provide the hard drives supposedly seized from Pellicano’s office so that, among other analysis, the Meta data could be checked. The meta-data could prove McTiernan’s innocence, e.g. it could show when and where the data was created. The government refused to comply.

The government’s refusal to turn over something so simple is puzzling unless the ‘evidence’ is not what the government claimed it to be.

On August 5th 2013, Judge Dale Fischer cancelled the hearing and ruled that it was allowable for the government to suppress the exculpatory evidence and the source of the evidence. She denied McTiernan’s habeas motion which she had stalled since 2012. This had been filed because the government’s key witness indicated that no wiretapping was done on behalf of McTiernan and therefore McTiernan’s sentence should be reevualated. And she ruled against a motion to vacate the perjury charge although no perjury had occurred.

Furthermore, she ruled that John McTiernan had no right to appeal her decision to a higher court on the bizzare grounds that: “There is no reason to believe that such evidence would have resulted in Defendant not pleading guilty or would have resulted in a lower sentence.”

The judgements made against John McTiernan do not enhance the good name of America. He is in prison because the government prosecutors broke rule after rule to get him there:

1. They violated the statue of limitations and they created an alleged crime by entrapment.

2. They made a single false statement charge in violation of the US Attorney’s manual.

3. They broke FBI ‘first contact’ rules by telephoning him at home and by not presenting their credentials.

4. They failed to turn over exculpatory evidence.

5. Subsequently, they broke the Federal Rules of Evidence by presenting the oral statement of a defendant who did not know to whom he was speaking.

6. They indicted him with a perjury charge although perjury did not occur.

A less than impartial judge blocked McTiernan’s avenues of defense and appeal, and seemed to be actively working in alliance with the prosecution. She condoned the government’s outrageous behavior by her rulings. When the errors of the perjury indictment were brought to her attention, McTiernan’s lawyers were refused a transcript of the prosecution’s presentation to the Grand Jury. This strongly suggests that the prosecution lied to the Jury to get their indictments.

John McTiernan continues to fight for the principles on which his country was founded, and against the prosecution claims that is alright to jail a man for answering the telephone in his own home, and that law enforcers have no need to identify themselves properly or present their credentials in person. He believed that he had a moral duty to fight the government on these points. If he, with his advantages of wealth, education and fame, couldn’t fight the prosecutors, who could? He said: “How’s the teacher or mechanic or shop owner going to fight them?”. They don’t have the resources that he had at the start of what has been a seven-year battle.

On the day he was jailed, his wife released a press statement: “He kept plugging forward, naively shelling out a fortune for lawyers, confident that eventually their prosecutorial overreach would be heard before an unbiased judge and set things right.”

International support for John McTiernan is growing. In a lengthy article in the June edition of Cahier’s du Cinema magazine, Vincent Malausa explained the ‘McT’ phenomena in France. He says that the ideas of chivalry at the heart of all of McTiernan’s films connects them to the best work of McT’s great Irish-American colleagues, John Ford and John Huston. “This moral concern, stamped with a nobility, is somewhat removed from the prevailing cynicism in Hollywood cinema and the gradual triumph of war-mongers, such as Michael Bey and Roland Emmerich.”

When I was a child, Laurence Olivier and Vivian Pickles led a march through London to protest against Russia’s travel ban of a troupe of Jewish dancers. In Britain today, the jailing of Pussy Riot and Ai Weiwei continues to be front page news. We have never been afraid to stand up against totalitarian governments. We shouldn’t be afraid of protesting against crimes against artists in The New World. Britain is a country of Principle; a beholder of the values of Justice and of Truth. The French are campaigning for the release of John McTiernan. So should McTiernan’s countrymen, and so should we.



-- Paul Sutton is a film historian in Cambridge. His books include ,The Authorized Biography of Ken Russell, and Lindsay Anderson: The Diaries.

Related News Coverage

Buzzfeed, Exclusive: The Tragic Imprisonment of John McTiernan, Hollywood Icon, Michael Hastings, May 24, 2013. The legendary director of Die Hard andThe Hunt for Red October is serving a year in federal prison thanks to a Hollywood wannabe prosecutor, a remake of Rollerball, and a rogue private eye. His shown below on a 20th Century Fox set with Samuel L. Jackson, the all-time highest paid actor over a career, and Pierce Brosnan, at right.

In an exclusive interview, McTiernan’s wife Gail says, “I don’t know if he’s going to make it.” Over the course of the first weekend in May, Gail Sistrunk McTiernan spent about 11 hours with her husband John McTiernan in the visiting room of the Yankton Federal Prison Camp in South Dakota. It was the first time she’d seen John — “McT” to friends and colleagues — since he’d started a yearlong prison sentence the month before. The prisoners and guards had given him a new nickname: “Mac,” sometimes “Big Mac.” The Federal Bureau of Prisons assigned him number 43029-112, stitched in above the pocket of his ill-fitting tan uniform. The 62-year-old had already lost 20 pounds, getting one main serving of protein a week: a hamburger. A guard stood watch each day to ensure he ate only a single orange, as fresh fruit was in short supply.

Video messages by John McTiernan’s wife, Gail Sistrunk McTiernan, left, a former college president, were screened at the "Free John McTiernan" events in Paris and Lyon here and here.

Hollywood Reporter, John McTiernan Surrenders to Begin Pellicano Prison Sentence, Alex Ben Block, April 3, 2013. Die Hard director John McTiernan surrendered to federal authorities Wednesday to begin serving his 12-month prison sentence for his role in the Anthony Pellicano wiretapping scandal. He has been taken to a federal prison in North Dakota. McTiernan, 62, lost an appeal last August of a 2010 sentence and turned himself in on the last day possible. A judge had given him the option of surrendering earlier but he did not do so. McTiernan was found guilty of two counts of making false statements to the FBI and one count of perjury for lying to a federal judge during the period when he wanted to withdraw his earlier guilty plea. The filmmaker was found to have lied about ordering Pellicano, then Hollywood’s most successful private detective, to illegally wiretap producer Chuck Roven while the two were involved in the remake of the movie Rollerball in 2002.



OpEd News, Mrs. John McTiernan's Statement Regarding her Husband's Surrender, Gail Sistrunk McTiernan, April 5, 2013. John McTiernan, director of Die Hard, Predator, The Hunt for Red October and other films, surrendered to federal prison. His wife, Gail, breaks the silence they've maintained for years after the government multiplied his charges for challenging the prosecutor's actions.

Huffington Post, Feds Bully 'Die Hard' McTiernan Into Plea for False Statements, Andrew Kreig, July 13, 2010. A noted Hollywood filmmaker faces prison after a conditional guilty plea July 12 in a wiretapping case so interesting that it deserves two alternative news accounts.

Catching Our Attention on other Justice, Media & Integrity Issues

Huffington Post, The Rubashkin Case: A Mockery of Justice, Conrad Black, Aug. 28, 2013. The Sholom Rubashkin case has become particularly notorious. Sholom Rubashkin underwent rabbinical training and was a Jewish educator very active in many charities and universally regarded among his acquaintances as a man of great generosity and unblemished ethics. He and his wife have been married nearly 30 years and have raised ten children. His father, Aaron Rubashkin, bought a derelict plant in Postville, Iowa and turned it into a kosher slaughterhouse called Agriprocessors Inc. and his son, Sholom, as well as several siblings, joined him in the management as the business grew to employ over 1,000 people.