My journey with Bernie

Photo by Leslie Boorhem-Stephenson

A couple of weeks before production began on "Bernie," Jack Black and I got permission to visit Bernie Tiede at the McConnell Prison unit in Beeville, where he was serving a life sentence for killing Marjorie Nugent. What an experience! Jack, meeting the man he was about to portray, was naturally absorbing everything about Bernie. I was getting re-acquainted with the guy I had last seen on the witness stand many years before.

Bernie's hair was now gray, and I just listened to everything he said. About an hour into our conversation, Jack asked Bernie, "If she was that abusive and things were so bad between you guys, why didn't you just leave Marjorie?" Bernie quickly and innocently answered, "Oh no, I couldn't — I was all she had, her only friend."

Since Bernie was released on bond 86 weeks ago, I and everyone involved on his side of the case have largely resisted responding to the various attacks and misinformation that have been reported in the media. This has been partly because Bernie himself was keeping a very low profile (no interviews, nothing that might attract attention) and also out of respect and sympathy for Marjorie Nugent's family.

But with the Texas Attorney General's Office now trying to put Bernie back behind bars for the rest of his life, his future as a rehabilitated citizen is clearly in jeopardy. They are proceeding to a full jury sentencing trial this spring so that they can seek another life sentence. Since there are serious legal issues on the table, a clock ticking, and because our original desire to keep all of this as quiet as possible has failed, I feel compelled to finally share my part in Bernie's legal case. It has been a long haul, but I'll tell you what I know.

A new look at an old case

This story of fascinating and complex legal wrangling really starts on the night of the Austin premiere of "Bernie" in May 2012. After the screening, standing around in the lobby of the Violet Crown Theater in Austin, a feisty and hyper-intelligent lawyer named Jodi Callaway Cole came up to me and started asking about the particulars of the case.

She'd recently read an article in the New York Times Magazine that was written by Marjorie Nugent's nephew, Joe Rhodes, titled "How My Aunt Marge Ended Up in the Deep Freeze." While telling much of the basic story from a family member's perspective, Joe's story also contained some rather harrowing accounts of Marjorie being very cruel to him, and others, as a child; chasing him with garden shears, locking him in a room for days until a maid let him out to call his parents, etc. The article shared a little of the comedic tone of the movie, but it also contained a portrait of a pretty unstable, sometimes cruel woman who just could not seem to be happy for very long in this world.

Over the years working on the film, I had always been looking to hear something — anything — positive about Mrs. Nugent ... Unfortunately, I am still waiting to hear something nice from anyone other than Bernie.

Over the years working on the film, I had always been looking to hear something — anything — positive about Mrs. Nugent. I spoke with many neighbors and citizens of Carthage, Texas, who had dealings with her, at her bank, the church, or wherever their paths crossed hers. Unfortunately, I am still waiting to hear something nice from anyone other than Bernie.

After talking to Jodi the evening of the screening, I went by her office the next day and dropped off everything remotely legal that I had collected regarding the case (much from journalist Skip Hollandsworth's original research): trial transcript, juror records and lots of other public legal documents. You see, Jodi happened to be a criminal defense lawyer who looked into old cases.

I remember being so excited to send Bernie a note that there was suddenly this lawyer who wanted to look into his case further. I had been in touch with him periodically throughout the almost two-year process between that meeting with Jack during pre-production in 2010 to the release of the film in 2012.

The Texas Department of Criminal Justice allows you to send emails to inmates (that strangely require postage paid), but they can only send letters back through the mail. I had discovered that the only people that seemingly still write handwritten letters are inmates. We would send an occasional photo from the set, or I would give him an update on how it was going in post-production or what was up with the film.

In the weeks following the premiere, Jodi began establishing a relationship with Bernie as his lawyer, building that trust. As she was still grinding through boxes of information and records, I'd get the occasional update call where she shared her defense strategies at the time, such as, "It was a coerced confession! It's right here in the transcript — he's asking for a lawyer, and the Sheriff's deputy is making him sign the confession they wrote for him." "How? Why?" "They found some homemade sex tapes at his house and were threatening to go public with them unless he signed. They all knew about it."

There was always a rumor swirling around about sex tapes, but they were never brought up in the trial and seemingly existed just below the surface of the official record. I chose not to make them a part of the film because their existence never rose above rumor and didn't seem to have much bearing on anything.

Nothing demonstrates how far we have come as a culture more than seeing the way that Bernie was treated for being gay.

Wrong! Jodi had uncovered what was behind the crucial confession. This was huge because the confession was the main evidence that bumped the sentence up into first-degree murder territory. Jodi argues that without a lawyer present, under duress, an ashamed Bernie had signed a confession he did not write to try to protect the two married men with whom he had consensual affairs.

Nothing demonstrates how far we have come as a culture more than seeing the way that Bernie was treated for being gay. It really was as if being gay was considered on par with murder back then, in that small Texas town. From the landmark 2003 decision in Lawrence vs. Texas to marriage equality in 2015, civil rights for gay people have come a long way since 1997. Bernie stepped into an entirely different world of acceptance when he returned to free society in 2014.

A nice guy who did a bad thing

Over 15 years ago, I viewed this case not from a legal angle but rather as a screenwriter and director. I have always felt compelled to tell stories that are personal to me, that intrigue me in some deep way — but that also contain compelling characters who will not only entertain but also move an audience.

Skip Hollandsworth's Texas Monthly article "Midnight in the Garden of East Texas," published in January 1998, made me feel all of those things. I grew up in East Texas. People like Bernie, Marjorie Nugent and the many townspeople of Carthage felt like people I knew. Skip and I actually attended some of the trial in 1999, and being there helped me get a deeper feeling for the atmosphere, which in turn helped me tell the story.

I also got to witness, in real time, what the end of the movie would most likely be. Skip's article implied that there might be a very light sentence, or none at all — it seemed like very few people wanted Bernie severely punished. After all, he was widely liked, while Marjorie appeared to be actively disliked by so many. I wondered at the time whether the ending would be ironic, or more tragicomic. I wasn't sure, but it would undoubtedly be the final note to their relationship, and to the film itself.

The trial was moved out of Panola County to San Augustine. The distance from his community and harsh evidence against him seemed to contribute to a general "anti-Bernie" atmosphere. He had shot a lady in the back and put her in a freezer for nine months. There was the confession that Jodi argues is coerced, in which he admitted to premeditation. In spite of defense attorney Scrappy Holmes' very best efforts, Bernie got life. The gulf between the jury and Bernie's "otherness" was so vast it seemed insurmountable. I'm not even sure that he would have been spared the death penalty if it had been a capital case.

I came away back then with two big impressions: A) Danny Buck Davidson was a subtly brilliant prosecutor, and B) I felt sorry for Bernie.

I had heard and seen all of Bernie's testimony. I was looking closely for a steely killer hiding underneath the friendly veneer. It just wasn't there.

I had heard and seen all of Bernie's testimony. I was looking closely for a steely killer hiding underneath the friendly veneer. It just wasn't there. Bernie cried several times when he was talking about Mrs. Nugent. He really seemed like a nice, highly sensitive guy who had done a very bad thing.

I knew a little bit more about prison life than some people. I grew up in Huntsville, the hometown of the former Texas Department of Corrections, with a stepfather who was a prison guard. I visited various prisoners over the years and have always paid close attention to prison issues. The thought of Bernie in some maximum-security prison for the rest of his life really haunted me over the following years.

Unknowable-ness

At that juncture, it still seemed there was so much that we would never know and so many things that did not make much sense about the relationship and the crime. Bernie was the sole beneficiary of Marge's will. If it was all for the money, and premeditated, surely he would have staged it in a way that looked like he was at least trying to get away with it. But he had not tried to escape or destroy the evidence; he seemingly was in complete denial, distancing himself from the act and carrying on with normal activities. And he maintained his modest lifestyle, spending her money on community projects but none to enhance his own circumstances.

And then there is the all-encompassing question regarding how it is possible for someone who has never done anything remotely violent or been in any real trouble — someone considered to be an especially kind person to all who know him — to suddenly become a cold-blooded, calculated killer, and a not-very-smart one at that. I was not alone in my feeling that Bernie must have been slowly driven crazy by Mrs. Nugent, and just snapped somehow. But the temporary insanity defense is sometimes a tough one to defend, and there was still that issue of the confession of premeditation.

With every movie I have ever made, I am always trying to figure something out that I do not fully know or understand.

The pieces of the story definitely did not meet up, but I think what kept me intrigued over the next decade, and still feeling compelled to try to someday make the movie, was the utter complexity of their relationship and the seemingly unknowable-ness of it all. With every movie I have ever made, I am always trying to figure something out that I do not fully know or understand. Sometimes, I am simply trying to work out my own true feelings about a subject. This story was overabundant in all those ways. It seemed that with Marge gone forever and Bernie in prison not talking, all that was left was rampant gossip and speculation. Indeed, that very gossip would become the story-telling spine of the script Skip and I later wrote, but I hoped that the simple act of making this movie would take the story, and our understanding, to another level.

Making "Bernie"

So a decade or so went by, and the planets actually started to align in getting the movie made. Jack Black came on board to play Bernie, Matthew McConaughey as Danny Buck and Shirley MacLaine as Mrs. Nugent. No studios or big distributors were interested in "Bernie," but enough money was scraped together to get it made very independently. Everyone was working for almost nothing, and we had only about five weeks to shoot it, but that's often just the way you make these passion projects.

This was the first movie that I had made dealing with actual living people who were also characters in the story I was telling. I was very sensitive to how they might react to how they were portrayed. I contacted Scrappy Holmes and Danny Buck, and they agreed to let us use their real names. That was great because I was going for that almost journalistic/documentary sense of authenticity. I wrote a letter to Bernie introducing myself and letting him know about the movie. He wrote me a very nice letter back. Bernie was a little puzzled about how the worst thing in his life, his only few seconds of regret, was being made into a comedy, but he sort of gave us his blessing and wished us well.

I also wrote a letter to the Nugent family. I wanted to let them know that I understood that it would be an awkward, and likely painful, reminder of a terrible event in their lives. My letter tried to assure them that the movie would not be going far outside the public record. I wanted them to be assured also that even though they were hardly going to be represented in the movie, we were going to change their names as a gesture of respect.

Bernie was a little puzzled about how the worst thing in his life, his only few seconds of regret, was being made into a comedy, but he sort of gave us his blessing and wished us well.

I got back a letter from their lawyer, threatening a lawsuit, and specifically documenting the many times they had left messages and tried to contact Mrs. Nugent over the nine months she was missing. Even though that felt a little in the "doth protest too much" category, I felt okay about it because if that was their primary concern — that they would come off as bad relatives for not checking on Marjorie earlier — the movie would make pretty clear it was Marjorie who had alienated her family and not the other way around.

The language of the abused

When Bernie explained to Jack that day at the prison why he had never left Marjorie: "Oh no, I couldn't — I was all she had, her only friend," I could feel him trapped even within this answer. That was when a major piece of the puzzle clicked for me. He sounded exactly like the abused wife who shoots her husband in his sleep. When those women are asked the same thing ("Why? Now he's dead and you're going to prison – why didn't you just walk away?"), they always seem to answer, "because I loved him," or "I couldn't leave him." Some people just end up in these very psychologically complicated, co-dependent, and ultimately abusive relationships from which they cannot seem to extricate themselves before a tragedy results. While the typical gender roles were reversed in Bernie's case, it sure seemed to fit this common pattern.

If there is one person who can find the best in someone, it is Bernie. Talking to anyone other than Bernie, it was becoming clear that Mrs. Nugent was an extremely abusive person. Jodi Callaway Cole had connected those dots instantly when she read Joe Rhodes' New York Times article about his Aunt Marge. Later, I would find out that Jodi had a particularly attuned antenna for traumatic abuse, having experienced it in her own past.

The film itself was never put forth as an activist work. It doesn't end with a sign saying "free Bernie" or anything like that. I was just trying to tell this story the way that I saw it, as honestly and accurately as possible. I intended to let people make of it what they will, with humor and tragedy included, right on top of each other.

I always told Danny Buck that I personally felt Bernie should, of course, do some time, but I wondered if it should be a life sentence since it seemed like a murder with "mitigating circumstances" to say the least. In the years since the trial, I have been paying special attention to sentencing issues, and, what do you know – some real monsters get only 30 years. Bernie got life, the worst-of-the-worst, just short of the death penalty. But I wasn't in possession of all the facts — what did I know? Danny had played his hand and gotten that conviction, like he has almost 6,000 times in his career.

Danny Buck is famously a tough prosecutor, but he never seemed anything less than a straight-up, totally fair guy. We all know about corrupt DAs who do not fit that description. I remember talking to him once about the DAs in Williamson County (Ken Anderson and John Bradley) involved in convicting and keeping Michael Morton in prison all those years. Danny Buck talked about how his worst nightmare would be to convict an innocent person, and as far as things one might do to simply "win" a conviction, he said indignantly, "Now why would you ever do that? There's so many guilty people out there."

Another major revelation in the case came more slowly, and it started with Jodi asking Bernie, "Why do you have four books about surviving childhood sexual abuse? I could see one maybe, but four? It's not exactly light reading." Jodi had been going through a list of all the contents of his house when she noticed these books.

It turned out Bernie was molested as a teen. Like many sexual abuse survivors, he had ostensibly been dealing with the effects from abuse his entire life, but he was probably not conscious of it and not sure what to do with it. He never sought to use it as an excuse for anything, and it is unlikely he would have ever mentioned it to Scrappy Holmes in the 1990s. Bernie is the kind of person who would try to leave negative stuff behind him. Bernie is maybe the most positive person I have ever met, un-cynical, always looking for the good, always suspecting the best in people. But being sexually abused as a child was surely just too severe for him to bury without it affecting his life.

If anyone had the right to be negative, it was probably Bernie. We all sure aren't dealt the same hand in this life.

If anyone had the right to be negative, it was probably Bernie. We all sure aren't dealt the same hand in this life. Bernie's mother died when he was only two, and his father passed away during these vulnerable early teenage years. And into that void, according to Bernie, stepped the creepy pedophile predator he had for an uncle-by-marriage, preying on Bernie and others over the years. Even though others have come forward years later with allegations, the uncle has never been successfully prosecuted. Knowing what he knows now, I'm sure Danny Buck would go after him if he could. But there the alleged chronic pedophile sits, seemingly safe across the Louisiana border, protected by their rigid statute of limitations laws. It is this kind of abuse that can really throw off the trajectory of one's life, and the effects are often unpredictable.

The correct sentence

The question of the moment: "So you're telling me that just because someone got abused when they were young, that means they can kill someone and it's okay?"

The answer: Of course it's not okay! That is a false assertion — no one is condoning the action. That is not what is on the table here. In Bernie's case, it is just one more thing that might further explain why he found himself in an abusive relationship from which he could not escape. It casts additional light on how a person who has never committed a violent act, before or since, how someone who is so clearly not a psychopath, could be capable of a disassociated episode of violence.

No one is condoning the action. That is not what is on the table here.

And to be clear, Bernie is not "getting away" with anything. He served 16 years, 261 days in Texas maximum-security prisons. Early on in prison, he was beaten within an inch of his life. Bernie's case at this point is not about getting away with anything — it is now about a major cornerstone of our criminal justice system: the correct sentence to fit the crime.

Another supporter appeared along the way for Bernie in the form of John Raley, the Houston-based lawyer who did such heroic work (along with the Innocence Project) over the years in getting Michael Morton out of prison. I had seen John featured prominently in Al Reinert's powerful documentary "An Unreal Dream" and ended up talking with him at a reception after its SXSW premiere. He mentioned that he and his wife had enjoyed "Bernie," and we got to talking about some of the issues Jodi was uncovering. Luckily, John, a man who has spent his life sticking up for the little guy against the powerful, seemed interested in helping us out in any way he could.

It was fascinating to watch Jodi and John, with two incredible but different legal minds, digging in and using their skill sets to understand and address the legal issues. There were various avenues and strategies to helping Bernie, but the cleanest one was ultimately to take all the new evidence directly to Danny Buck. My two cents had always been that Danny Buck was all about justice and that he would not run from new information that might impact his opinion. I was right.

I'll jump ahead many months and let Danny Buck speak for himself via an affidavit he filed before Judge Diane DeVasto, in Panola County, at the hearing when she released Bernie on bond. Here is the original document:

Affidavit of Danny Buck Davidson by Nugent Family

I find this affidavit to be a profoundly moving legal document. "We should never be afraid of the truth, no matter where it leads us in our quest for justice." Wow — so simple, so obvious, you would think, but unfortunately so often ignored or avoided in a justice system simply looking for wins and re-elections. And to think that as you read this, the prosecutors in the Texas Attorney General's Office are gearing up to try to nullify, disallow or deem as inadmissible almost everything in this affidavit. It does not make any sense to me.

I think the single most important takeaway from Danny Buck's affidavit is the notion that if he knew then what he knew now, he would have still prosecuted Bernie for murder, but under the "sudden passion" maximum of 20 years, by which he almost certainly would have been out by now. Danny Buck did not come to this opinion lightly; it was after months of research, getting psychiatric evaluations, and meeting with additional witnesses like Todd Hine, who bravely came forward with his own allegations of abuse at the hands of the man whom Bernie says abused him.

Todd spoke to Danny about how it affected him as a survivor. This likely resonated with Danny, who spends so much of his time prosecuting people who abuse children. He now felt Bernie's sentence was wrong.

Because there apparently isn't a good way for prosecutors to fix sentences yet in Texas, Danny Buck and Jodi agreed to file a joint habeas.

But before Danny Buck would take such an important step, he wanted to talk to his trial witness expert, Dr. Edward Gripon. Danny Buck made it clear that he would not join in any effort to correct the sentence unless Dr. Gripon double-checked all of the evidence, and Dr. Gripon refused to re-evaluate his opinion unless he was allowed to interview Bernie alone. It was perhaps a risky move, but Jodi was confident enough in the power of the new evidence to allow Bernie to be interviewed without his attorney present. Sure enough, Dr. Gripon, the state's expert from the first trial, found that Bernie had not committed a premeditated act.

The Court of Criminal Appeals granted Bernie a new sentencing on his murder conviction. Danny Buck had agreed to give Bernie time served on his sentence. Bernie was out on bond, under tight restrictions, but free and seemingly only awaiting the Texas Court of Criminal Appeals approval of the judge's ruling.

Justice was in the long process of being served, but it soon hit a wall.

Pressure from the Nugents

Another cornerstone of our criminal justice system: crimes are technically against the state, not individuals (hence, The State of Texas vs. Bernie Tiede). We are a nation of laws, and the court system is set up to decide which laws have been violated and what punishment, if any, is appropriate. This is intended to take personal emotions out of the equation so that justice can be determined on facts and evidence.

The Nugents thus had no legal standing, but they did not like Danny Buck's decision. And they had lawyers and the resources to hire a public relations firm out of Dallas that specialized in swaying public opinion, so they got to work. There was a protest on the State Capitol grounds, about how a murderer had been let free, how a judge and DA let him go because of a movie. Their signs read "Hollywood 1, Justice 0." Really?

Before we knew it, the Nugents had so successfully dialed up the pressure on Danny Buck that he had to recuse himself from the case altogether. His office had been endlessly harassed by insinuations that he was acting as Jodi's puppet, that he was cavorting with celebrities, and under the spell of Hollywood.

They even presented pictures to prove it, misleading as they were. I had invited Danny and Scrappy to various screenings, and Danny's path crossed with Jack and Matthew, very briefly, at the Austin screening. A picture with the actor that played you in a movie does not mean that you are corrupt, but these tactics sadly can be very effective – they create a sort of feedback loop that the media and others pick up on.

It is painful to see someone we should be applauding, someone who had legal authority and a willingness to pursue truth, being treated so disrespectfully.

Danny Buck has now paid the price on both ends of this case. Before the first trial, he caught lots of hell locally for prosecuting Bernie at all. Now, all these years later, he is catching endless flack for letting Bernie out. It is painful to see someone we should be applauding, someone who had legal authority and a willingness to pursue truth, being treated so disrespectfully.

The fight now is to protect Danny Buck's judgment and actions. If they are not guarded, any prosecutor who attempts to correct an erroneous sentence can be bullied out of their decision. This would set a very bad precedent in Texas, where the errors of the past will need to be set right by future legal practitioners. We believe the outcome of Bernie's case can help shift the criminal justice paradigm of Texas toward one of true justice and rehabilitation. The stakes could not be higher.

The AG's office will now be promoting the theory that Mrs. Nugent was murdered as part of a theft scheme. Bernie speaks clearly about how Mrs. Nugent gave him money — it was one more way she made him dependent on her, and it gave her control. After plenty of lawsuits, bad feelings and outright banishment, she had written her entire family out of her will and was obsessed with them not getting any of it. Bernie was the beneficiary of her estate, and she generally did not mind spending money where he thought best.

The lawyers who obtained Bernie's freedom worked pro bono, and the experts have worked at reduced fees or pro bono. Because of the gravity of Bernie's legal situation, we decided it was time to retain a highly regarded criminal trial lawyer who has the experience, skills and resources to match those of the state and the Nugents. Mike DeGeurin agreed to come aboard as lead counsel and is getting Bernie's legal team geared up for a trial. We feel confident they will be ready for anything, especially if we ensure that Bernie's legal team is able to afford the expert assistance necessary to match the lawyers of the Nugents and the AG's office. Any donations or fundraising on Bernie's behalf is simply an attempt to level the playing field.

No winners here

In the end, I can understand where the Nugents are coming from. The sad fact is that the Nugents are certainly victims here, as are so many others. Violence and tragedy have a way of spreading themselves around. Bernie was a victim of sexual abuse as a child, and years later was a victim of Mrs. Nugent. Mrs. Nugent was then a victim of Bernie. Mrs. Nugent's survivors, familial victims already, become further victims in the loss of their mother/grandmother, among all the unanswered questions and media attention. No winners here, just losers — even the town of Carthage itself. 

The sad fact is that the Nugents are certainly victims here, as are so many others.

I'd never really portrayed a murder in a movie before, and Jack had never participated in one as an actor. We talked about it, and how we felt this was about as far away from gratuitous violence as you could get. Even in our black comedy, we were trying to show how one violent act, one death, can ruin many lives and affect many people. This was real, this really happened, and we respected the people we were portraying too much to be anything other than honest in how we depicted it.

Abuse casts such a long shadow, has such long-term ramifications. Justice is in the eye of the beholder, as varied as all of our perspectives, shaded by our own blind spots and biases. How to break through something like this?

I've been learning a lot about restorative justice from Jodi, and it truly sounds like the best approach to healing and forgiveness. I know it's a hope of so many of us who forever stand outside this tragedy personally, who have to imagine the actual pain involved, that one day the Nugents could sit down with Bernie. There might actually be some common ground — if nothing else, everyone involved here has had to overcome plenty of adversity. If nothing else, it would be a chance for everyone to acknowledge each other in all their human complexity.

Disclosure: Richard Linklater is a major donor to The Texas Tribune. A complete list of Texas Tribune donors and sponsors can be viewed here.

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