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Tuesday, August 30, 2016

The Night of Conclusion

I was a guest on New York Magazine's Vulture TV Podcast (begins at 30:00 mark) discussing the finale of The Night Of. Some additional comments (with spoilers) after the jump.

1) I like the ambiguity of the ending, in which we do not really know who killed Andrea. Naz is not acquitted--it is an evenly split jury--but we do not see the end result of the investigation of Ray Halle, the suspect the show throws at us, for the first time, about midway through the finale. The truth is we never know what happened in many cases; the system makes its best guess using procedures designed to produce accurate results (albeit in an efficient and fair way).

2) I do not think the decision to continue the prosecution of Naz, even after learning about Halle, was wrong. And it certainly was not unethical. There was more evidence against Naz. The evidence against Halle was that he had motive, opportunity, and a connection to the victim--the same evidence as against the step-father and Duane Reade, although of a different nature and perhaps somewhat strong. The unforgivable sin was the prosecutor not disclosing that evidence, an obvious Brady violation. It is interesting that the show gives the prosecutor a heroic ending of sorts--she tanks the closing argument while having second thoughts, she declines to reprosecute, and she enlists Box to help her make a case against Halle. But her failure to disclose reflects a cardinal sin for a prosecutor, the most common type of prosecutorial misconduct and the source of many wrongful convictions. I wish the show had not downplayed that. And, as I said in the podcast discussion, she picked the worst of all possible ways to express her doubts--she did not dismiss the charges (a precipitous move, since I imagine jeopardy had attached, so if Halle turned out to be a dead-end, she was stuck) or disclose and let the jury hear the new evidence (and perhaps acquit). Her choice actually left Naz permanently in limbo.

3) Rule 404 does not exist in TV Land; there was more character and other-acts evidence flying around this week. Interestingly, however, some of it would have been admissible, although not for the reasons the show depicts. Some good exam hypos.

4) Trevor should have been able to plead the Fifth when asked about lying about being with Duane Reade. Wasn't he confessing to lying to police, which is a crime?

5) I did not think the decision to have Naz testify was wrong. It was poorly executed. He was unprepared for cross. And most of what came out on cross should have been presented on direct. The show presented an interesting divide over having the defendant testify. I imagine defense lawyers will say that the popular view is that an innocent defendant would take the stand and explain his side of the story and that the failure to testify is suspicious, despite the judge's charge. As presented through John, the show's theory is that, without testifying, the jury understands the defendant as wearing the "cloak of the presumption of innocence," but that if he testifies, his testimony must be strong enough to "prove his innocence." Meaning, presumably, that a defendant should never testify. In any event, his testimony is a disaster, which leads to . . .

6) I again cannot express strongly enough how turned off I was by the portrayal of women lawyers. The show destroyed Chandra's character--as always, in the service of enabling the male lawyer to emerge as the hero--in the most ludicrous ways. Several reviews have suggested the show reverse-engineered it--it needed John to be the hero, then just found the most ridiculous way to get there. Worse still, I am not sure its machinations were legally accurate. While unethical and grounds for bar discipline, I am not sure that kissing a client is grounds either for a mistrial, removal of the attorney, or forcing the attorney to yield her role as first chair. And all without asking the defendant his preferences, which should control. There is a case down here in which a defense attorney was accused of having full-on sex with her client in the interview room; she was temporarily barred from the jail, but she represented the client at trial.

There is a lot of talk about the awful portrayal of women on TV (think of some of the criticisms of Season One of True Detective). This show should be included in the discussion. Which is unfortunate, because it undermines an otherwise-good story.

Posted by Howard Wasserman on August 30, 2016 at 09:12 AM in Culture, Howard Wasserman, Television | Permalink


I forgot about that plot thread. It goes further: There is at least a suggestion that John is doing this in lieu of payment, at least that is how I read it. John doing this is supposed to signal how much of a bottom-dweller he is in the world of lawyers.

Posted by: Howard Wasserman | Aug 30, 2016 12:25:24 PM

Chandra's treatment on the show is, perhaps, either more or less problematic than many commentators suggest.

Chandra isn't the only one who has an improper relationship with a client. So does John. The show implies (or at least I inferred) that the prostitute with whom he has a relationship is someone who was first his client.

I wish the show had dealt with it more deftly, but there can be a sort of "Florence Nightingale" effect that arises in the attorney-client relationship. Professor Wasserman mentions a case in his jurisdiction; I can think of more than one in mine. We're led to believe that John genuinely cares for his sometimes lover, and that Chandra also cares for Naz. The show makes clear that Chandra was wrong to act, but stays oddly silent about John's apparent transgression.

The consequences for John and Chandra are very different. Chandra is hauled into chambers and shamed by a judge in the presence of opposing counsel. She loses her job and perhaps her vocation. John suffers no ill consequences. So a woman in an inappropriate relationship is punished, but a man (who takes the relationship further) gets away scot-free. Of course, John isn't caught.

Does the show perpetuate sexism by letting John get away with an ongoing sexual relationship with an on-again, off-again client while punishing Chandra for a mere kiss, or does it expose sexism? I don't know the answer to that; again, because the issues aren't dealt with terribly deftly, it's hard to say what the producers' intent was.

Posted by: Donald | Aug 30, 2016 11:07:32 AM

As far as the portrayals of female attorneys on TV, don't forget about Chandra also bringing Naz drugs. What was the point? If the kiss was enough to get John moved to first chair, then why was it necessary to add the drugs?

Posted by: Jill Lens | Aug 30, 2016 9:43:52 AM

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