Sitting Ducks: The Law & Order Franchise and You
Ah, Law & Order. It–and its four million spin-offs–are the one thing you can pretty much count on everybody having watched. Some people have maybe watched each episode just three or four times. More often, even if not particular fans, you’ll hear things like, “Oh yeah, I must have seen that episode at least eight times.” If you ask why, you’ll usually get an answer along the lines of,”Well, A&E used to run it at 11, so Id unwind after the kids went to sleep,” or “Well, its on while I’m getting ready for work,” or “Well, my husband/wife/kid/maid/pet orca is a big fan, so–” Its the Everest of the tube: We watched it–and still watch it–because its there. It replaced the Bible as the one cultural touchstone that almost everyone has some familiarity with. Some actors–Bruce MacVittie comes to mind–probably made a good living never acting in anything else. Many of us have spent our entire adult lives in the L&O universe; young adults have never drawn a breath when there was not an episode of some Law & Order franchise airing somewhere.
Besides the flagship “ripped from the headlines” show, there’s the still-running, utterly vile Special Victims Unit; the cheap (and brief) attempt at reality TV with L&O: Crime and Punishment; L &O : Criminal Intent, which basically starred Vince DOnofrio as an older, fatter version of Benedict Cumberbatch from Sherlock or Matthew Gray Gubler from Criminal Minds; and the short-lived L&O:Trial By Jury, which had an excellent cast and was quite good, which doubtless had something to do with why it lasted a mere thirteen eps. Oops, I left out the incredibly silly Conviction, which starred a bunch of twentysomethings (none of whom you’ve heard of, now showing on Netflix) also only made it to the big 1-3, but unlike Trial by Jury, it was awful.
There was also a Law & Order: Los Angeles, which I could never bring myself to watch because Skeet Ulrich was in it. I’ve done some pretty low things and wasted a lot of time in my five decades on earth. Fuck, I once paid to see Carrot Top’s live show at the Luxor in Vegas. But I’ve never watched anything with Skeet Ulrich, and when I’m on my deathbed thinking about all my regrets, I really hope somebody cheers me up by reminding me of that fact. Full disclosure: Skeetster did appear briefly in a guest episode of SVU which I did watch–“Behave,” starring those A-list actors of our generation, James LeGros and Jennifer Love Hewitt. If I recall, the episode mostly featured Olivia taking road trips and bemoaning the backlog of untested rape kits.
Across the pond (lest any nation be deprived of our cultural imperialism) was L&O: UK, which starred Jamie Bamber of Battlestar Galactica fame as well as Peter Davidson, best known as the Fifth Doctor back when Doctor Who was, you know, good. There was no original content in L&O:UK; they just had the same characters with different names and scripts from the original L&O that were very mildly adapted for a British audience & the British legal system. All told, though, not a bad show. Apparently there was even a L&O: Paris, which I’ve never seen. No one has. Pity they never made a Canadian version–hell, I’d have *paid* to watch “Law & Order: Prince George”–per capita, the most violent Canadian city–or “Law & Order: Edmonton.” I suspect the only reason they didn’t was that a) Canada already had several excellent cop shows, Da Vinci’s Inquest being the best, along with Durham County & Cold Squad, not be confused with the US Cold Case, and b) the Canadian legal system is significantly different from the US, both for investigations and trials. Probably more work than Dick “I Never Have to Work Again” Wolf was willing to do.
I may be missing a few iterations, but those were busy years. Between spin-offs of L&O, CSI, and NCIS, I’m not sure there was anything else to actually watch on the tube and I spent a lot of time…well, I’d like to say I spent the time productively playing Eternal Darkness on my beloved Nintendo Gamecube or shooting smack. Rather, I’m in the eight-times-or-more category.
To sum up:
-L&O, the flagship show, had the best writing.
-Conviction, SVU, & the later seasons of CI had the worst.
-L&O & the earlier seasons of Criminal Intent had the best acting. Not that any of the shows (except Conviction) -had especially bad acting, but even Olivier can’t rescue SVU from terminal idiocy.
-SVU is the most ridiculous show on television. (And I like Ice-T.)
And invariably I get asked: “Is it realistic?” The flagship show is probably the most realistic. Which is to say, not a whole lot, though I have to balance it with the time cheat most cop shows have to practice and the fact that there’s so much of trial practice you can’t fit into half of an hour-long episode (nor would most of it be interesting).
Lord, where do I start? Well, I’ll start off with the original shows Law part, meaning the cops. (Criminal Intent & SVU deserve their own headings.) As far as the various law enforcement pairings go–first Chris Noth with a couple of different fat guys, then Noth with Jerry Orbach, then Orbach with everyone else, then Orbach croaked, and so on to infinity)–I’ll give them a B+ for realism, graded on a curve with other cop shows. In other words, not bad. Yes, it’s a bit silly that a single pair of detectives from a single Manhattan precinct would seemingly catch every high-profile homicide in the city. Although strange things have happened in Real Life–Det. Tom Lange had, over his long career with the LAPD, the distinction of investigating the Manson murders, the Wonderland murders, and, only a few months from retirement, O.J. Simpson. Another LAPD detective, Steve Hodel–an honourable gent with a nearly flawless record–decided in retirement to solve the Black Dahlia case. He solved it to discover that the killer was not only a serial killer, but his own father.
Yes, the L&O Magnificent Two often threaten witnesses with bogus charges and behave despicably–though granted, real-life cops sometimes do as well. I must admit, making Orbach’s character, Lennie Briscoe, a flawed, often self-doubting Friend of Bill was a nice touch, plus the late Mr Orbach was a fine actor. But the overly aggressive approach they take to both witnesses and suspects really, really bothers me (Stabler of SVU being the worst–a cop with those issues would have cost his city millions in lawsuits.) It’s well-known that I have no love for the Chubby Blue Line, but in Real Life, cops generally start off with fairly non-confrontative interviews of both suspects and witnesses, rather than Olivia Benson invariably beginning the interview by screeching: “We know you’re a rapist/pedo/killer, you little freak!” (And on SVU, like all of the L&Os, the first suspect is almost never the killer.) Start soft. Be professional, but make the person think you like them, understand them. Offer them cigarettes and soda and a pizza.
Why would real detectives start off easy in a homicide investigation? Simple: If the witness is really a witness, they’re less likely to lie if they think the cops aren’t out to get them, as well as give more accurate information. (That doesn’t mean you should EVER talk to the police without an attorney anyway, because plenty of well-meaning, innocent people have literally talked themselves into prison like this, but a lot of people don’t watch enough Dateline.) If the police are talking to a suspect, an attitude of “Yep, we just kind of have to fill in this form and/or get a statement–now what was it you said again? What time did you last see her? Now, you don’t own any guns, do you?” is, again, more likely to elicit more information, the better to trace the suspects steps or trip him up later, in an actual interrogation–or just get him to confess. For example, legendary FBI agent Roy Hazelwood once persuaded a mother to get her wanted, out-of-state son to surrender to by–get this–kneeling and praying with her. The next morning at 9 am, the son turned himself in to Hazelwood saying, “My mom said I had to surrender.”
Col. Russell Williams, probably Ontario’s second-most famous serial killer (Paul Bernardo still likely holds the record) folded quickly with a similar I’m-your-buddy, I-completely-understand gambit. It’s known as the Reid technique in LE circles. If you want the most realistic TV version of how real-life detectives question both witnesses and suspects, the best examples are probably the late CBS show Cold Case, and the equally late Homicide: Life on the Street.
What L&O does fairly well, though, is show the difficulties involved with solving some homicide cases, the difference being that in Reel Life the Briscoe & Sidekick always close the case and in Real Life, the solve-rate is at an all-time low. But they get this much right: After finding the body and spouting a one-liner, they either have too many suspects or none at all, too much information or not enough. They look at the scene. Who’s still there, if anyone was? They start to interview people and gather information, which may or may not be relevant, and they have to brainstorm and sift through it. Who was the last person to see her, and what do they have to say? Does this beer bottle at the scene mean something, or is it a red herring? Ditto DNA–did it come from rough sex with her hubby or was she actually raped? Does the eyewitness who said the killer was a six foot-tall black man with an AR-15 in a 18-wheeler seem more credible, or was it the witness who said it was a white midget with a katana on a skateboard? Is there any surveillance footage? What do the relatives say? Was the victim a pillar of the community and the bastard love child of Jesus and Ghandi, or was he a drug kingpin, pimp, and serial killer who also killed homeless puppies to relax? What does the Medical Examiner say? Remember, in most jurisdictions, the ME or coroner has the last word on whether the hanging/OD/whatever victim is a murder, a suicide, an accident, etc. If he says its an accident or suicide, however implausible that may seem, you shrug and head to the donut shop, relieved that your caseload has gotten no larger.
If the ME decides your victim didn’t stab himself 35 times? The majority of homicide cases, of course, are either domestic disputes or, to be polite, connected with the “professional activities of the victim.” (This “profession” is frequently not legal.) The former cases are usually solved almost immediately, whether or not anyone is ever actually convicted–there is a difference. The latter–well, lets just say that despite all their flaws, detectives share one trait with most of humanity: They don’t make more work for themselves. In other words, they *don’t* need to work too hard when wife offs hubby or vice-versa, and similarly, they *aren’t* going to work too hard when they come across a dead drug dealer in an alley.
Naturally, where the show goes off the rails completely is on the Order half, at least once McCoy came aboard. Damn that McCoy. McCoy is a disgrace to the TV-lawyer profession, let alone the real one.Have I mentioned I hate McCoy? Especially those eyebrows-its like hes got caterpillars crawling on his forehead, for chrissakes.
In big cities–New York, LA, Miami, Boston, Philly, etc.–as well as in many smaller jurisdictions, prosecutors don’t get involved with investigations at *all.* For very high-profile cases (O.J. Simpson, for instance) or major task-force type investigations–SERIAL KILLER AT LARGE IN MANAYUNK!!!!–lawyers may get on board early, usually just to make sure warrants are signed and executed properly, to keep on top of the evidence and make sure everyone is doing their job–computer forensics, DNA, detectives witness interviews, etc. But more often than not, in most cities, detectives work a case, figure out whodunnit, slap them in jail, then write up a case document. They then take it to an Assistant District Attorney, who decides whether the case is good enough to file (charge). On the cops’ end, the case is closed at that point, and if the DA decides not to file, the suspect walks. Sometimes they file and the process of getting an indictment begins. On occasion they’ll kick the file back and say they need more, or your case is too weak. At that point, sometimes the detectives will actually go out and get more evidence, witnesses, etc.; more often, if the DA isn’t going to bother, neither are they. Either way, for them, the case is now closed and they move on to the next, confident that their year-end stats are looking better.
Obviously, while Dick Wolf couldn’t emphasize this (although it happens fairly regularly on the show) almost *all* prosecutions end in plea bargains. Scary fact: In cases where the defendant chooses their constitutional right to a jury trial, the defense wins–Guess. One out of ten times? Twenty-five? Most people I’ve asked say, “About a third?” Yeah, right. Only one out of over two hundred trials ends in acquittal. (The acquittal rate is often higher in big cities, for a number of reasons.)
One myth that all almost cop shows perpetuate–SVU is one exception, which we’ll get to in a while–is that for every crime that occurs, where they reasonably Know Who Dunnit, the Who must be jailed, tried and, absent a dream team or boneheaded jury, punished. Yeah, uh-huh. There is no such mandate in American jurisprudence–prosecutors try the cases they think they can win. Or where they’ve got something to prove. Or they are really, really out to get someone. (NOTE: Here, I’m talking about major cases–murder, kidnapping, rape, robbery, etc. Drug offenses are in a class by themselves–and so are attorneys, on both sides, who specialise in them).
Put yourself in this position: You’re a DA who has ten cases on your desk. Two of them are obvious winners for you & your top ADAs (one of which might even get you on HLN! You’ll be as famous as Juan Martinez!), four are pedestrian cases that nobody cares about that can be horse-traded on paper for lesser charges, and the remaining four are what they call, variously, “borderlines,” or “losers” or “dogs”–what are you going to do?
A “dog” is a case where, say, they might have a decent circumstantial case but no real direct or forensic proof (“How do you expect us to get a conviction with no confession? No eyewitnesses? No DNA? No fingerprints? No tire casts?”). Or the accused just knew enough to keep his mouth shut, now has a decent attorney who’s stonewalling, and no direct evidence links him to the crime. Or it may be a case where the accused is a real POS already serving time in another jurisdiction, or is up on stronger charges elsewhere. Why bother prosecuting a cold rape/murder case if the guy is already on Death Row in Delaware? You can only kill a man once, and in my state, at least, you often get the same sentence for one murder as you do for five. Or it may be a case where either the victim, main witness, or the defendant is so old or sick that by the time it would come up for trial, someones likely to be dead or senile. Possibly the victim is so unsympathetic–it happens, as in “Did he need killing?”–that its more work than the DA is willing to put in for an uncertain result (see: “professional activities.”) It might be a case where the accused has done everything save dance naked on the piano singing” I killed her!” but there’s no body, thus the DA is really left with nothing. (Of course, if a crime involves mass/serial murder, children, somebody really important, or the DA just really, really wants to make an example of you because you’re sleeping with his mother, all bets are off.)
But DAs, as a rule do not, as McCoy does every few episodes, scream at the detectives, “Find me more evidence so I can put this monster away!” They do not go out & conduct interviews themselves, although good DAs will try to interview the witnesses before trial. (This is going out of fashion, and quickly.) Above all, they usually try really, really hard not to get disbarred–after all, your law license is your meal ticket, and for most lawyers, it’s not like you can do much else with your life. Yet McCoy risks his constantly–and should have been disbarred at least once a season, though he faces the dreaded Disciplinary Board only once in the entire series. If memory serves, he got a reprimand, which has about the same effect as a warning from your sixth-grade hall monitor.
The original L&O ADA (Seasons 1-4) was the very realistic Michael Stone, played by the very alcoholic Michael Moriarty. (No exaggeration: Moriarty later admitted to being so consistently tanked during the filming of L&O that he barely remembered any of it.) Stone actually behaved more or less like a real ADA. He rarely left his office, except to go to court. He was reasonable when discussing plea bargains! He actually protected the rights of the accused and made sure warrants were properly written and served! He was careful to ensure the cops had arrested the right man! He took mitigating factors into account! He could get angry but was never unprofessional! Above all, he was ethical! Can you imagine? Graded against other TV lawyers, he gets an A+. (Hell, graded against many real life DAs I know, he gets an A+.) Well, that was a mere four of twenty seasons. Then began the reign of Jack McCoy. Oh, the smarm. The self-righteousness. That nose. And those fucking eyebrows.
Let’s take one episode from Season Eight, “Mad Dog.” McCoy and his Leggy Lady Assistant show up at the parole hearing to rail against the release of a serial rapist. A sixty-something serial rapist named Darnell (Burt Young, also known as Paulie) has just been paroled from the pen after serving eighteen years. He seems sincere and rehabilitated. BUT IS HE?
A few weeks after Darnell’s release, a young girl, home sick, is raped and murdered. Jerry Orbach and Benjamin Bratt show up to investigate. They can’t figure out how the attacker got into the apartment building, since, it’s “like Fort Knox.” The adjoining building, however, is open–and has a vent from the basement that opens into the other building! And it turns out Darnell lived in that apartment building when he was five! AND he was fifteen minutes late getting back from lunch that day! OMG!
Now here it gets weird. We know Darnell was a pretty brutal serial rapist. He admits as much. Not in doubt. But he’s never murdered before, and at no point, I think, are we supposed to really believe Darnell committed the murder that sets the episodes events in motion. The time frame is pretty tight, first of all. Secondly, even if Darnell did take a swing by his old building for nostalgia purposes, why did he think there’d be a girl inside to rape during school hours, or would any woman have sufficed? But this wasn’t as simple as just knocking on a few doors and finding a woman at home alone: he would have had to go to the building, find the door locked AND remember that there was a vent going from the unlocked building next door to the other building. Do you remember the ins and outs of the place you lived when you were five? I don’t, and its the same place my parents were living when I was thirty-five.
Also, most criminals are not what you’d call hard workers. Most criminal lawyers will never, ever see a William Leasure or Israel Keyes or BTK or John Gotti. Most of us won’t even see a Billy Milligan. If a thief finds one home too “challenging” to burglarize–dog, alarm sign in the yard, Harley with a Mongols patch in the driveway–he moves on to the next one. If Darnell was just looking to rape (he does have a “type,” but there’s no evidence he pre-selects his victims or stalks them beforehand) he would have simply found a victim in the unlocked building. He wasn’t going to go out of his comfort zone.
Next: We’re to believe this senior citizen crawled through what must have been a pretty dirty and small vent to get into the next building, yet no one noticed he was dirty when he got back to work? Yes, he presumably could have cleaned up his face/hands at the girl’s apartment, but his clothes would have still been filthy. And in the space of a little more than hour, he didn’t have time to rape, murder, and do laundry. But seriously, although Darnell seems to be in pretty good shape for a man his age, I’m 20 years his junior and my knees and back crack when I get out of bed in the morning. I don’t make beds, I “let them air.” (We have the airiest beds in town.) And I don’t think I’m terribly unusual.
But wait! They get a search warrant and find out Darnell likes hardcore porn! They trick his parole officer into getting a doctor to do a physical exam of Darnell and he–gasp!–shaves his body hair! Doubtless so as not to leave forensic evidence! As for the body hair: Yeah, guys in prison do that. There’s a good reason. Prisoners can’t shower every day, their hygiene is often not the best to begin with, and you have a lot of men living in very close (and usually pretty filthy) quarters. A veteran cop like Lennie Briscoe would know this; the parole officer & the doctor certainly would. As for his stroke materials–we don’t (usually) prosecute people for their thoughts, and any kind of porn exists because someone buys it. Most of those people are not sex offenders, however disagreeable their fantasies may be. And–thank the deity of your choice–with only a few exceptions, porn is not illegal.
McCoy cries foul. He knows Darnell did it, dammit! He tries arresting him on parole violations; a judge quashes it. He attempts to get Darnell put away through the back-door mental hygiene law; it fails miserably. He even screams in Darnell’s face: “This wont stop till one of us is dead or you are back in prison!” And, by God, he tries to make good on his word. He orders round-the-clock surveillance on Darnell, wiretaps him, and convenes several grand juries. Darnell hires a top attorney, who complains, “The Gambinos never got this kind of attention.” True dat. But here’s the issue: The parole and mental hygiene hearings McCoy could conceivably get away with, though the DA Adam Schiff would have likely shut him down before that, fearing lawsuits against the city. (Yes, even parolees have civil rights.) Wiretaps? Multiple search warrants and grand juries? Yeah, no, and this is why:
Check your copy of the Constitution. You know, the one you had a test on in fifth grade? Appendix B in your Civics book? That’s it. Now head down the amendments to number IV:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Yes, that’s right. A search warrant must be based on probable cause, signed and–hopefully– vetted by a judge. If your neighbour gets killed, it usually isn’t enough to say you knew the victim, or that you and he argued two weeks ago about your uneven hedges, in order to turn your life upside down by searching your house, giving you several hostile interviews, and arresting and charging you with murder. (Unless the guy was found killed with your hedge clippers, in which case you might just be a pretty good suspect.) Now, particularly in smaller areas–i.e., Podunksville, The South, and especially with drug cases, warrants often consist of no more than “Officer Dimwitty saw a plant on the porch that sure looked like MJ,” or “Sgt. Six-Months-From-Pension walked past the door and thought he smelled smack,” which is then rubber-stamped by a “magistrate” who often has no legal background and may, in fact, be a total idiot. (One such magistrate that I had to deal with for years spent nearly two decades on the bench before some overachiever noticed she’d never graduated from high school. She was allowed to take a leave of absence to get her GED, returning posthaste to making decisions that could, and have, ruined peoples lives.)
However, that happened in Podunk. This is the Manhattan–better still, the Manhattan of the Law & Order universe. These are supposedly honest-to-goodness judges who went to the finest schools, all right, and were then elected or appointed to the bench. As much pull as McCoy may have, as creative as his cops may be at crafting warrants (and a good detective can often frame a warrant to make it *read* like there’s something there whether or not it is), at some point a judge would have taken a look at the warrants, assessed their version of probable cause, and thrown them in the trash. And since you’re often dealing with the same judges or magistrates, your mistakes are cumulative, and you’re losing credibility every time you pull that crap. But in this case, even though Darnell gets the ACLU and his fancy attorney on board, a judge agrees that while it “borders on harassment?” (BORDERS?) she doesn’t see that his “civil rights” have been violated. McCoy must’ve lucked out getting the only judge in NYC who slept through Con Law, yet somehow passed the final. By this time, Briscoe and the Partner, Lt. Van Buren, and even McCoy’s Leggy Lady Assistant have gotten disgusted with McCoy’s behaviour. Personally, I’m just wondering, “Hasn’t he got any other work to do? Or is he just a better multitasker than I’ll ever be?”
So does this episode end with McCoy being vindicated? How nice of you to ask. After all the harassment, Darnell’s daughter–who up to now has been his staunchest defender–beats him to death with a Louisville Slugger when she catches him–gasp!–trying to rape her best friend! In the denouement, we see McCoy and his Leggy Lady Assistant walking away from the scene, with McCoy furrowing his eyebrows in what I think is supposed to be contemplation about whether he just might have had a hand in Darnell’s relapse. As in, “I’m going back to prison no matter what because of this asswipe, might as well have some fun before I go?” Or maybe he’s thinking about whether he could have been even bigger hardass on Darnell, sent him away sooner, and prevented the final crime from happening? Its McCoy, so what do you think? (BTW, this is one of the highest-ranked L&Os ever, according to IMDB.)
McCoy’s courtroom behaviour is, if anything, even more reprehensible. I’ll start with a Major Pet Peeve: A lawyer cannot ask a question that is improper, inflammatory, or designed to lead the jury to a conclusion and then just singsong “Withdrawn!” as if it never happened. If you genuinely flub up, you’ll get away with it…once. Any more than that, and unless you and the judge are sleeping together or share the same dealer, you’ll likely be fined, possibly held in contempt, and worse, everyone will wonder if you even know what you’re doing. As for the rest of it: I’m no stranger to suspending disbelief. Naturally the show has to practice a time cheat: In New York the average wait for a jury trial is about nine or ten months, in some other cities (Phoenix is notorious for this) it can be years, speedy trial notions be damned. (This is often used to push people into plea bargains as opposed to exercising their right to jury trials.) And if you’ve ever sat on a jury, you know what I’ll say next: Even very high-profile trials are more boring than anything else–lots of sidebars, discussions in-chambers, long breaks for motion hearings that devolve into mini-trials, pissant beefs between the opposing lawyers, lawyers and the judge, etc., etc. There are no Perry Mason moments: for the most part, everyone knows exactly who is testifying and exactly what they’ll say. Even the exciting testimony and cross-examination is usually completely expected and delivered by a witness either barking into the microphone or delivered in a too-fast, obviously well-rehearsed monotone. No real surprises when you get that far, unless you’re Jack McCoy.
Is there anything they get right? Well, a few things: Yes, most defense attorneys file blizzards of motions, most of which are turned down by the judge. If anything, the defense tends to win more of these motions on the show than they would In Real Life, at which point you hear the DA Adam Schiff (who played the District Attorney before they snagged Sen. Fred Dalton “Don’t Quit Your Day Job” Thompson) wringing his hands and saying in his best Jewish-mother mode: “Take the plea! Take the plea!” And everyone knows that closing arguments can be hours-long marathons as opposed to brief, mostly emotional pleas that barely mention the evidence. It’s TV, I get it.
You probably already know most trials end in plea deals. Key word: deal–in other words, some benefit to both parties. The state saves the cost of the trial or gets a witness against an even bigger fish; the criminal gets pleads to a lesser charge, or gets a reduced sentence, or sometimes walks completely. Yet McCoy turns down the most reasonable of deals, and in the courtroom he screams, accuses, rages and condemns, all with the least professionalism possible. Usually he wins, occasionally he doesn’t, and on several occasions convicts the wrong man, though its not his fault–its *never* his fault. Either someone lied to him (Act of God, Denial, Stiff); it’s racism, straight up or reverse (Burn Baby Burn, with the criminally underrated Clarence Williams III); once a vengeful ex who was a former Leggy Lady Assistant (Trophy) concealed vital evidence; several times he was the poor, poor victim of jury nullification (Bailout, Equal Rights, Standoff, Burden, and Brotherhood); and one case (Hubris) ended in a mistrial when the jury foreperson fell in love with the defendant. And once–get this–the defendant was such a jerk that McCoy forced him into a plea, never considering the obvious possibility that he was being framed for rape and murder by a woman in a fucking coma. No, I’m not making this up–the episode is called “Patsy,” and it’s a real classic.
I suppose for balance, they tossed in the episode “Bronx Cheer” in which McCoy goes crusader for a man wrongly convicted in the Bronx. He gets the real killer (whom I recall only because it was the same guy who played the fence, Redfoot, in The Usual Suspects) to confess, gets the dude to accept a 7-year sentence for that murder as well as another (!); then heads off to the State Supreme Court to get Innocent Guys conviction vacated. In a particularly odious episode, Corpus Delicti, he brings a man to trial without the benefit of a dead body. Now, that has been done IRL, and successfully, but McCoy isn’t successful. He realises he’s losing, so he asks a bunch of improper questions and gets a mistrial. Whaddaya know–almost as soon as that happens, the body is found, providing the proof he needs.
Just one small problem: If the prosecution provokes a mistrial, or otherwise rigs the verdict, they don’t get to try again. The precedent case is Smith vs. Pennsylvania (1992), and it’s immensely fascinating: The prosecutor in that case, who was a major cokehead, sent a man (actually, a senior citizen with a PhD) to Death Row for a triple murder on the slimmest of evidence–well, saying the slimmest is an exaggeration. Nearly all the evidence turned out to have all been fabricated, and to complicate matters, the state had somehow persuaded the judge to admit the most ridiculous hearsay testimony ever. As if that weren’t enough, it later turned out a number of those witnesses, including the top police investigator, had been paid for said testimony. The trial exhibits included a strap-on dildo, soiled Jockeys, and a Penthouse magazine, all of which he displayed to the jurors at length during his coke-fueled closing (and none of which had anything to do with the crime.) A few years later the prosecutor was disbarred and went to jail–not for his misconduct, as he had immunity from that–but for being a cokehead *and* a dealer. (I guess he needed the extra paycheck?) A lower court overturned the verdict on the grounds that….well, there was kind of no evidence and a lot of misconduct, but ordered a new trial. The defendant’s lawyer, ingeniously, appealed to the Pennsylvania Supreme Court on the grounds that since the prosecution had denied his client a fair trial and verdict in the first place, they had no right to take him to trial again–I guess the lawyer had no faith in the DA’s, “We won’t do it again, really! We’ll be fair this time!” promises. His reasoning is a bit hard to distill, but essentially, he was arguing that the state was attempting an end-run around double jeopardy. (Also, it’s hard to see how they could have possibly retried him, given that once the fake evidence and hearsay testimony was tossed, they had…um, nothing?) In a unanimous verdict, the PA Supremes agreed, ordered the defendant, who had lost 13 of his golden years on Death Row, released, and famously noted that the states conduct “bordered on evil.” You don’t say? Anyway, my point is that in light of the crap McCoy pulls, probably a good third of his convictions wouldn’t survive appeal.
Too little, too late, McCoy advanced to the position of DA himself in the final two seasons, where he suddenly became a Schiff-like Voice of Reason. I’d attribute this to maturity if most people didn’t reach such maturity before they’re old enough to collect Social Security, but whatever. At least we didn’t see him much. Stepping into his shoes was Michael Cutter (Linus Roache). Cutter struck a pretty good balance between the loose-cannon McCoy and the Boy-Scout rectitude of Stone, and his relationship with the detectives (in the final iteration, the excellent team of Anthony Anderson and Jeremy Sisto as Lupo and Bernard) was occasionally heated but usually respectful. But then came the final episode, a rousing thriller about the injustices of the New York teacher’s union (Rubber Room) which had no trial at all, but let McCoy be an asshole one more time…and then, in 2010, twenty years of watching ripped from the headlines came to an end. Congrats, Sam–you came a long way from The Killing Fields. Even Capricorn One was better. You were much more credible as an astronaut. (Main thing I learned watching Capricorn One: Never give O.J. a knife.)
Criminal Intent went off the air the next year, in what amounted to an 8-episode burnoff. The first version, with the detective team of Vincent D’Onofrio and Kathryn Erbe, purported to be the adventures of NYC’s Major Case squad (later adding Chris Noth and, at one point, Jeff Goldblum, with assorted ladies). Major Case means different things in different jurisdictions–in some small states or counties, they are part of the state police or investigative agency and pretty much handle every case that isn’t a DUI, DV, or drug possession. In big cities, though, Major Case generally handles cases of that involve the politically connected, famous, infamous or otherwise important or sensitive. And for the first few seasons, that’s what they do. A probation officer who comes from a crime family is killed (Graansha)? Yes, in Manhattan that would likely be a job for Major Case. Murder of a city auditor by a group of corrupt cops (Badge)? Indeed. Murder of a ex-military nurse selling stolen anthrax vaccines (Person of Interest)? Eh–maybe they’d be allowed to work jointly with the FBI and/or CID. A vet whose murder ties into a major drug ring (Ill-Bred)? That’s a job for Briscoe & Co., with some help from Narcotics. A live organ donor who turns on anyone who doesn’t utilise his gifts properly (Ex Stasis?) Yep, Briscoe and partner again. It zigged and zagged like that until the final season, where the plotlines were nearly as crazy as SVUs. Trials were a rarity on this show: about all their DA, Carver, ever did was either a) suggest they get a search warrant, b) whine that they didn’t have enough for a search warrant, c) make snide remarks about how he was more conservative than they were, and d) talk suspects into taking deals in a way that always made me wonder if he was macking on them. Being pretty superfluous, they dumped Carver after Season 5. He was played by Courtney B. Vance, who made the best of a limited role–though, granted, Mr Vance is probably better known for being married to Angela Bassett and acting in such cinematic triumphs as Final Destination 5.
There are hardly words strong enough in my vocabulary strong enough to express my loathing for SVU, and the fact that it not only got consistently higher ratings than the main show but is still going strong says something about America that I don’t much like. Id be very interested to see an academic study of the “SVU Effect,” which is something I think I just made up. After watching four thousand episodes, I have to wonder: What woman, in her right mind, would even report a sexual assault after watching this shit, let alone go through a trial? Seriously, this show has about four plots.
1) A woman, kid, or less frequently, a man, bravely comes forward with their tale of woe regarding a known offender, offender is apprehended, the woman goes to court but the defense finds out something negative about her, or pulls some kind of designer defense, blah blah, she thinks twice but testifies anyway and the offender walks, either with an acquittal or dropped charges. In a variant, the victim changes his/her testimony on the stand–“No, really, I didn’t see him clearly and it wasn’t my husband/father/son/boyfriend/boss/dealer/coworker/professor/etc.” (All those scenarios *have* happened on SVU. As yet, I have not seen anyone accuse a pet orca. I guess they don’t mind GamerGate, but getting caught up in the Seaworld mess is too much for Wolf & Co. to stomach.)
2. An unknown offender commits a crime or a series of crimes against women and children–or, much less frequently, men. Everyone on the force goes all out. Innocent people with the misfortune to become suspects are yelled at, manhandled, and occasionally arrested and put in jail. In at least one episode, Loophole, one such innocent suspect is shivved to death at Rikers, inspiring Ice-T to quip “Couldn’t have happened to a nicer guy.” In another, Haystack, Stabler and a blond, bitchy talk show host named Faith Yancy (*cough, cough*) hound a woman with a missing baby about inconsistencies in her story and accuse her of killing her child on live TV–until the woman goes home and kills herself. (*Cough–not based on any real case, google “Melinda Duckett”–cough*). Finally, the real perp is found –in “Haystack,” it turns out to be Bobby Briggs from Twin Peaks–often completely by accident. Frequently, even if the case goes to trial and the survivors testify, the defendant is acquitted or takes a plea bargain for littering.
3. A crime is faked (Burned, Chat Room, Doubt, Asunder, etc.). One partner believes the victim, the other doesn’t. The pair bicker and whine and finally reach an understanding as the credits roll. I understand this may be fascinating to some people, but if I want to see domestic bickering, I’ll stay right on my own damn couch and listen to my beloved spouse criticise the way I clean the kitchen.
4. A REALLY REALLY BAD DUDE is on the loose. (Rage, Uncle, Zebras, Conscience, Pique, Outsider, Behave, Delinquent,Pattern Seventeen, etc, etc., yawn.) He’s interrogated, but stands up to both Olivia’s shrillness and Elliot’s punches and walks out of the police station, usually to commit more crimes. Finally, Criminal Minds-style, our intrepid detectives catch the perp, usually red-handed, at which point he either a) forces a suicide-by-cop, b) is just killed-by-cop, or c) knows the jig is up and just meekly stands there as Stabler, etc. slaps on the cuffs and gets off a final one-liner. Also, just in case you were wondering, police departments, as a rule, would not put up with Stabler’s anger issues, violence, etc. Prior to oh, Season 5, he likely would have been either forced to retire, put out to pasture on psych-related disability, or fucking fired.
Now, for the purists out there: “But Melissa! Sex crimes really do have a lower solve/conviction rate than than other crimes!” That’s true, they do, and for several reasons. Rapes usually aren’t taken as seriously as they should be, either in big cities OR small towns. The cases are usually seen as losers, partly because there are (usually) no witnesses and the offender almost always has a built-in defense: It was consensual and she must have changed her mind in the morning. Only if the gentleman is a serial offender–such as Barry Simonis in Louisiana or Ronnie Shelton in Ohio–or a rapist/murderer does it get attention. And even with serial offenders, its far from easy to catch them, even in the era of DNA. Yes, DNA can exclude one offender to the *reasonable* exclusion of all others, but your DNA first has to be in the system to compare it to, otherwise it’s just a dead end. Both Simonis and Shelton were pre-DNA, not that it would have mattered, because neither was in the system nor had a criminal record (indeed, Simonis was a well-paid, respected hospital respiratory tech.) Both operated undetected for years. Simonis was caught largely because he also stole a lot of jewelry and other expensive stuff while he was raping, and some sharp-eyed detective finally put it together. Shelton finally got caught when he accidentally revisited one of his victims from years prior (“Of all the ground-floor apartments in Cinci, I had to break into this one…”) So, yes, it’s often tough to get convictions in such cases. And since DAs are often loathe to take the cases to trial, and as sex offenders are loathe to admit to being sex offenders, some nasty plea bargains can be had, where rapists take plea bargains to almost any charge besides rape, do comparatively soft time….and–
It’s easier next time. Okay, okay. The crimes and trials of SVU are silly. The outcomes, sadly–not so much. The latest ADA of SVU, a dapper dude named Barba, gives a sour quip to Olivia while she screeches at him for letting a perp walk: “Yes, I know it’s a major disappointment to you that we don’t summarily execute everyone you arrest.” McCoy always wanted to do the same.
So what’s the answer to all this discussion about “how realistic” the Law & Order franchise is? As I mentioned earlier: It’s television, I get it. The crimes of Law & Order, the main show, were, for the most part, based on things that really happened (and usually morphed into crimes that you didn’t have trouble believing might actually happen, with the exception of McCoy’s SJW vendettas.) The crimes of SVU and Criminal Intent often came straight out of the fifth dimension, but although the SVU trials were ridiculous–yes, those guys often walk. And the politics of working in a major case unit…sigh. That *is* done well.
The Law & Orders (again, with the exception of SVU) are probably about as realistic as Dick Wolf could/wanted to get it. And unlike Criminal Minds, which is pretty much fantasy from beginning to end–L&O shows (except for Conviction–SVU, for all its faults is at least entertaining in a “so bad its good” way) are at least they’re making an effort. But is that even worse than obvious fantasy? Almost all cop shows, especially since 9/11, are a dangerous breed, and I wonder if if they’ve led to a streak of what they call “learned helplessness” in American culture. To be blunt: putting the mindset in alignment with the reality. Like Criminal Minds and CSI, L&O invokes the “Panopticon” effect: Give up your privacy, your secrets, and your civil liberties, or you will be a victim–either the dead, raped, or exposed kind, or wrongfully sitting in prison. Or, if you hold something back, or show blind loyalty to a friend/relative/spouse, you could be responsible for even more deaths/rapes/whatever. Nothing is private. Screw having a right to privacy; I don’t think anyone but a few hardcore libertarians think that anymore. Once you are in the system, you have almost no rights. Period.
Well, we all know about privacy issues by now. We’ve entered an era where most people, even celebrities and criminals, have no bloody investment in privacy at all. We splash our names, identifying info, pictures of our kids (I draw the line here), vices, fetishes, and often our deepest secrets in posts and chats across Facebook, Tumblr, Twitter, or LiveJournal. Most of us, of course, believe this is harmless–after all, if we have nothing to hide, we have nothing to fear, right? Besides, it’s friends-locked–no one else is going to find about that affair with the Wisconsin congressman, right?
Two decades ago or so, Rudy Giuliani was a federal prosecutor in New York. He and his staff members used to play a game in which they would pick a high-profile, genuinely popular person (Mother Teresa, for instance) and figure what federal crime they could pin on her or him. No one was immune; no fish that they named was able to slip the net without having committed at least one, usually several, crimes for which a term in federal prison (and if they had the scratch or property, BIG FINES) were appropriate. Harvey Silverglate, a lawyer specialising in the civil liberties, wrote a marvelous book called Three Felonies A Day, that being what almost all Americans are guilty of.
And the world has changed since then Rudy’s day in the sun–24-hour news media and Facebook and four zillion bloggers have blown up every minor kerfuffle into a good old-fashioned moral panic–except now the panics, even if they don’t exist, get the attention once given only to the death of Princess Di. If it’s fashionable and good for your LE/legal career to go after doctors who dispense pain meds, even if theres no evidence that they were misused? Go for it. A domestic dispute ends in tragedy? Gee, the defendant’s pretty hot. Why ask for the appropriate second-degree manslaughter when we can get on TV by asking for the death penalty? Need more cash to fund our SWAT team? Hey, let’s prosecute the dude with the 40-acre ranch that two local teens he’s never met grew a few pot plants on! We’ll raid him, do a big perp walk, plant headlines that say RESPECTED LOCAL SHEEP RANCHER MAJOR DRUG KINGPIN, set bail really fucking high.then, a week before trial, offer him to plead to possession with no time. If he forfeits the bail and half the forty acres…and maybe a sheepskin coat for the DA’s mistress.
From libertarian Lew Rockwell Jr. (loathsome individual in many ways, but the quote is very good for a closing argument): What this means is that there is no way out for the accused. The prosecutors have all the power. Not even the judge has discretion because lawmakers have mostly taken that liberality away in the name of cracking down on crime. This happened all through the 1980s and 1990s, and the prosecutorial dictatorship has entrenched itself to become the norm since 2001. For the last ten years, the police state has had free rein.
It was not “liberals” or “conservatives” who did this. It was both parties acting with massive support of the American public, as tyrants in the public sector licked their chops. This was a result of security-minded madness, and even now hardly anyone cares.
Today, every single citizen, no matter how free he or she may feel in daily life, is in reality a sitting duck. You can be made to disappear. There is essentially no way you can escape once the feds sweep you into their net. There is no justice. The total states of the past used to pretend to have trial-based convictions. The total state of the present doesn’t even bother. It just puts a sack over your head and takes you away.
My mother was fond of saying: “If you act like a victim, you’re going to be a victim.” For years, I thought that line was incredibly stupid, and had no idea what it was even supposed to mean. Too late, I believe I know what she meant. We stuck kids on milk cartons and were willing to chuck the Rights of Man in the wake of Adam Walsh’s kidnapping and the “abduction panic” of the seventies. The “satanic panic” of the 80s stole many children from their parents, and put many an innocent man and woman in jail (some are still there); the “serial killer panic” of the 80s and 90s segued nicely into the “date rape” panic (which, when I was in university, was called a “date.” FFS, I have sorority sisters who have been happily married for decades to the same men who at, say, Princeton in 1995, they would have been convinced to press charges against.) A rash of school/workplace shootings by troubled, often bullied children or adults led to programs like WAVE, where the Pinkertons encouraged classmates and coworkers to snitch on the weirdos, where minors had no rights anyway, and if they dared step out of line, judges and juries felt no ethical twinge about putting a 14-year old away for life, no parole.
Later, to keep the hillbillies from getting their hands on purloined Oxycontins or Dilaudids, we turned pharmacists into snitches, established mammoth prescription monitoring programs to catch the 2% of criminals, and effectively tossed the entire concept of doctor-patient privilege–which is one of only three legally recognised confidentialities, along with spousal and priest-penitent privilege. Those used to damned near sacrosanct; only the last still seems impenetrable (and even that comes under attack in the L&O universe, such as the episodes Thrill and Forgiveness and SVUs Silence, with Eric Stoltz as the squealing Father.) And then 9/11 came along, and tolled the bell lest the terrorists think they could just waltz around, and then, Edward Snowden’s revelations were greeted by most Americans (I mean the 99.9% who are not in the Oval Office, Cabinet, CIA or Justice Department) with a uncomprehending shrug and mumbles of, “Whaddaya gonna do?” I guess the lesson is: We’re all sitting ducks, one way or another. Let me check my Daily Felony Count–fuck, I’m short one. But it’s only noon.