September 6, 2016 (Fault Lines) — In a couple of previous posts, I reviewed episodes of the HBO crime series “The Night Of” from the perspective of a criminal defense lawyer, not as an entertainment critic. The Finale has aired and it really unsettled me.
Two ethical issues were shown. Both were misstated and badly resolved. The writers and their legal advisors were either ignorant, or worse, they did not care. The first quandary involved the novice lawyer Chandra Kapoor (Amara Karan) who became the sole trial advocate for Nasir “Naz” Khan (Riz Ahmed). In a holding cell at the courthouse, she gave him a fairly chaste kiss. A video of that found its way to the door of her co-counsel, John Stone (John Turturro), who thought this would somehow get them a mistrial.
The way the video got to Stone was so incredible that it could have justified its own critique. Let’s just say Naz’s guru (and jail savant), Freddy Knight (Michael K. Williams), has powers in the system that exceed those of Mayor Di Blasio. I mean, he was able to kill an associate in front of others in a jail, probably recorded from several angles, with no apparent ramifications.
The show treated Chandra’s kiss as grounds for disbarment. In fact, I have read one non-lawyer review that assumed she was promptly defrocked as an attorney. I seriously doubt there has ever been an instance that a lawyer received discipline merely for kissing a client who welcomed the gesture. Under the circumstances, it was very poor judgment. It probably violated a jail procedure. However, it paled in comparison to her later errand of smuggling drugs to Naz, a crime for which no video was sought or found.
The kiss as ethical breach was a device to get to another hard to believe moment. The lawyers and the judge ended up in chambers discussing the motion for mistrial. Since nothing occurred in front of the jury, and there was no misconduct by a juror or prosecutor (at least not yet), there was no basis to ask for a mistrial. The simple answer for the court was to deny it. However, the writers needed to get Stone to make the closing argument, so the judge ordered him to do it. Without getting too technical, the judge had no basis to remove Chandra from Naz’s defense nor to force Stone to make the closing argument. Naz chose his lawyers. They were not court-appointed, and yet nobody bothered to ask him.
The thought of doing actual advocacy set off all of Stone’s health issues. After a quick trip to an emergency room, he came to court covered in a rash. He was like Paul Newman in The Verdict, but with full-blown eczema. Also, while it was a sincere summation, it had little in substance. His explanation of reasonable doubt was that it is whatever you think it is – how helpful.
The kiss kerfuffle was nothing compared to the ethical lapse that was treated like a minor plot twist. Homicide detective Dennis Box (Bill Camp) retired, but he was so bothered by Naz’s case that he continued working on it during the trial. He found yet another suspect (not a butler), to which there were no previous leads. He found a strong motive for this person to kill the victim, a video of the two arguing shortly before her murder, and another video of him near the scene soon after her death. He took all of this to the prosecutor, Helen Weiss (Jeannie Berlin), who decided she liked the case she was trying much better.
A prosecutor’s failure to turn over to the defense evidence that supports a theory other than guilt, or even just impeaches a prosecution witness, is such an infamous form of prosecutorial misconduct it has been reduced to a single word: Brady. It refers to a line of U.S. Supreme Court precedent that begins with Brady v. Maryland and has been the source of major legal scandals. Such constitutional violations were unjustly used to convict the late Senator Ted Stevens. Here in Texas, two former elected district attorneys from different counties were each disbarred for hiding evidence favorable to the defense, one of whom spent time in jail.
Prosecutor Weiss, who shows she understands the depth of her situation, through a dazed look and by passing defense witnesses, cannot be absolved from her misconduct. It is so much more serious than Chandra’s action. It is the difference between kissing the defendant and screwing the defendant. If she had any doubt about whether to turn over the exculpatory evidence (and there should have been none), she had to at least discuss it with a supervisor. It was something the elected district attorney should have been told about.
I am not shocked this happened in fiction because it happens in real life. My outrage is that nothing was done to explain the enormity of the misconduct to a general audience. A non-lawyer review I read (a good one) did not understand this was a serious problem. Most viewers will not. It is a dereliction of duty to take a complex moral issue, use it as a plot device, but without explaining what is at stake.
I did not understand why Box acquiesced to Weiss’s decision. He clearly came to the conclusion that Naz was innocent. If the prosecutor would not listen, he could have gone to her boss. Instead, both remained in the courtroom as the case was given to the jury for deliberation. Apparently, they hoped the jury would bail them out. It did, in a very unsatisfying 6-6 deadlock. However, there is no way the prosecutor could have waited for the result in good faith. A guilty verdict would have been difficult to undo, and probably have required admitting she obstructed justice.
There is much more I could criticize about how the show got procedure and evidence wrong. Witnesses were asked about prior conduct without foundation about why it was relevant or admissible. Lawyers offered facts that were not in evidence. My favorite non sequitur was, “Objection, no we don’t.”
The show also ended in an unsatisfying way. It may be realistic, but we expect more from art than a bunch of loose ends. Naz gets to go home, but his life is in ruins. His family continues to suffer economically and socially. Chandra is reduced to carting a box of items from her former firm. Box and Weiss allegedly go after the real killer, but their case against him is not even as good as the one they just gave up on. Stone continues to scratch himself and plead clients guilty. At least we know the victim’s cat survives.
To end on a positive note, this show did one thing better than I have ever seen in a fictional account. It showed the devastation of pretrial detention. Naz was too poor to make his bail. In most of the United States we still imprison defendants for days, weeks, months or years merely because they cannot afford to make cash bonds. We saw what Naz had to do to survive his incarceration. He quickly became institutionalized. When he did get out he was set up to fail. Addicted to drugs, tattooed on his neck, a scary demeanor, and with an ambiguous criminal history record that he probably can never expunge. That was memorable.