Aug 29 2016

Top Six Things the Public Should Take Away From HBO’s “The Night Of”

HBO’s excellent short series “the Night Of” concluded last night. If you haven’t seen it all I warn you that this post may contain spoilers. Lots of my friends in the legal community are complaining about many inaccuracies in the way trial, prosecutors and criminal defense were portrayed. My answer to them has generally been – its a TV show not a documentary. Are lawyers allowed to lean on the witness stand and get so close to the witness? No, but the director needs the tight two-shot so that’s how its always been done. Do lawyers start their cross-examination sitting down and then rise after a few questions for effect? Depends – in some states I believe lawyers must do their exams sitting down. In NY, you must stand when questioning a witness and addressing the court or jury. So this style of the sitting then standing is a TV creation done for dramatic effect (though the effect is lost on me frankly). Is Riker’s Island so lawless and corrupt that an inmate can have a suite of cells for him and his crew to openly do drugs and run an empire with impunity? Close but no. Sure guards get paid off to allow drugs. Every day heroin, cocaine and marijuana enter the prison and are used by inmates. Yes gangs run protection rackets on newcomers. But it still has not reached the blatant level portrayed by the always excellent Michael Kenneth Williams.

Not perfect, but insightful

Not perfect, but insightful

I could go on but the point is the show was not made for lawyers. And I think the producers tried to encapsulate in 8 episodes numerous broad, sweeping issues within the criminal justice system so of course they had to take some liberties to raise those issues in eight hour-long episodes. But what should non-lawyers take away from the show? What are the main themes addressed by the program that people should think about?
Here’s my top six list:

6. A trial is not a ‘search for the truth’:This is the common language used to describe a trial but any practicing trial lawyer will tell you that’s for law school classrooms. You are not litigating against what actually happened – you are litigating against what the government says happened. And the government is litigating what they feel is the best case they can prove beyond a reasonable doubt. Evidence is nuanced, exaggerated, downplayed or sometimes wholly ignored if it doesn’t fit the narrative your side is presenting to the jury.

5. Some lawyers trawl (or troll) for clients It was eye-opening to see a TV show reflect on how John Turturro’s John Stone character got clients. He would hang around the police precinct and try to pick them up. That happens in just about every jurisdiction – in Nassau County there’s at least one practitioner whose whole career is based on the practice. And if you have a sharp eye you can see it happening most nights in the arraignment parts of 100 Centre Street in Manhattan (Where The Night Of takes place). But what was truly eye-opening and refreshing was the portrayal of the high-profile lawyer with the big expensive office also trawling to get the case. Most lawyers in big firms would look down their noses at what John Stone does even though they and their own firms do pretty much the same thing except in more expensive suits to get big cases away from small lawyers. Many of my high-profile clients and cases have had larger, allegedly more prestigious firms, contact them to try and get the case away from me. Most times they are not successful, but now and again they are. It was great to see that shown on the TV screen.

4.You gotta go to the locus quo One of the first things John Stone does is go with a camera to the crime scene and take his own pictures. Now I would normally bring a third party to take the pictures to not make sure I won’t have to be a witness but Stone got it right. You need to visit where it happened for yourself. Its one of my Top Ten Tips For Young Lawyers You cannot rely on pictures and you certainly can’t rely on pictures taken by the other side. Stone then went back with his expert as well, which is also the right course of action. So often, its detailed investigation and not fancy lawyering that shows the way to a client’s freedom. Also, you can show the jury and a witness that you know the details of the case by asking questions that reflect that you’ve been to the scene of the crime (or accident). The show overall really emphasized how these cases are won or lost on tough, boring, repetitive work analyzing the details and leaving no stone unturned. Detective Box exemplified that by his continued pursuit of evidence and his repeatedly going over the minutiae of paperwork that he got from subpoenas (and other not so legal) sources. I wish there was a substitute in trial work for over-preparation but after more than 30 years I still haven’t found it.

3.Getting wrapped up in the criminal justice system is a nightmare One of the best things the show did is portray the ripple-effect of having a person close to you be accused of a crime. Obviously, the defendant is the most directly impacted by the process – he gets manhandled by the police; thrown into the lion’s den that is Riker’s Island; exposed to drugs and violence to which he has to adapt to survive; loses his job and standing in his school and his community; faces the stress of losing his liberty; dealing with stigma of being accused even after he is released;etc etc. But its not just the defendant whose life is turned upside down. His family suffers as well; his parents are bankrupted; they face the indignity and unknown of the process; his father’s business partners suffer; his brother is attacked. The victim’s family is also deeply effected: constantly having to go over the events leading up to the crime or having to explain their conduct or behavior; having the victim’s life put on display including whatever sordid details the defense may come up with to help their cause. Everyone’s life gets put on hold and their focus has to turn on “the night of” the crime its as if time stops and you have no capacity to think or plan about anything else.

2. Despite our great Constitution, the system is broken The show highlighted so many of the failings of our system. How hard it is for poor defendants to get quality representation. The way that police can form a quick opinion on guilt and then never be moved off of that opinion regardless of the evidence to the contrary. (In almost all of the wrongful conviction cases I have been involved with, that initial bias formed by law enforcement – itself usually based on some shoddy or mistaken premise – is the main cause of the conviction of an innocent person.) The way judges and courts are more concerned with finality and expediency than the rights of the accused. John Stone’s summation was a great reminder of the founding principles of this nation and how important it was to the Founding Fathers that our criminal justice system be fair and be geared not toward convicting the guilty but rather toward protecting the innocent. Look at how much of the Bill of Rights is focused on providing protection to the accused. Yet, somewhere along the way we got overwhelmed by the numbers and the cost and lost that focus. And many folks- some guilty, some innocent, some somewhere in between – are paying the price for that. Which leads me to the number one take away from the show:

1. Don’t dodge jury service Every month or so some friend of mine calls me or emails me or sends me a message asking “Oscar how can I get out of jury service?” My usual reply is to ask why they are trying to get out of jury service. Most of the people who cal me also regularly ask me to comment about lawyer and crime shows they watch and to which they are addicted. So why not do it in real life – here is your chance! While not every case will be nearly as interesting as The Night Of case, every criminal trial is important because every criminal trial (as John Stone reminded us) involves those important concepts referred to in the previous paragraph. We need jurors to serve who are committed to upholding those values and making sure that the government is kept to its burden. Hopefully this show raised the level of awareness of the role a jury plays in upholding those Constitutional rights that we supposedly care so much about. Most of the time we don’t think about them once we graduate high school and then pay general lip service to them. At least until someone we know and love is accused of a crime.

Kudos to HBO and the entire cast who were all excellent. John Turturro as John Stone, the everyman version of Atticus Finch, was simply incredible and is sure to get an Emmy nod.

Follow me on twitter @oscarmichelen

2 comments

    • Frank Furter on September 7, 2016 at 11:11 pm
    • Reply

    One huge, huge, monstrous difference between mid/small firm law and large firm law is large firm law is OCD about not getting the details wrong. Ever. In that vain, it’s Detective Box, not Fox.

    And the only lawyers I’ve ever met that have a perennial chip on their shoulder about BIG LAW are small firm lawyers. BIG LAW does not think about you nor except in your imagination does Cravath, S&C, Skadden, Davis Polk (pick whatever giant East coast firm you want compete with a Garden City based firm in any manner for clients.)

    1. You’re simply wrong about that. At least once a month we meet businesses that get solicited by BigLaw after a Fair Wage complaint is filed against them and before they are even served. They often find out they are being sued when they get the marketing material from some of the country’s largest firms. We sign up a fair number of those clients who can’t afford BigLaw and are looking for a smaller more efficient but equally as capable law firm. In this current marketplace, we are competing with law firms of all shapes and sizes and doing very well thank you. And also thanks for pointing out the Fox/Box typo.

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