Danny Cevallos: HBO series gets the defense lawyer and detective roles just right
"The Night Of" shows there are few winners in the criminal justice system, he says
Editor’s Note: Danny Cevallos (@CevallosLaw) is a CNN legal analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the US Virgin Islands. The opinions expressed in this commentary are his.
HBO’s “The Night Of” concluded Sunday night, with a perfect true-life resolution to a criminal prosecution: There were winners, and losers, but, like the criminal justice system, the winners and losers are hard to identify, and winning isn’t all that much different from losing.
It would be easy to point out some inaccuracies in the story of an immigrant taxi driver’s son Nasir Khan, played by Riz Ahmed, who is charged with killing a woman he meets by chance, but in fairness, a lawyer doing so would just be sniping more to show off – of course, it’s not exactly like real-life criminal practice.
Television dramatizations spice things up for an obvious reason: Real life is often too dull to attract viewers. Yes, real closing arguments can last hours, but who’s really going to sit still for that long? Scriptwriters are telling a story; they need to take some liberties.
Would real prosecutors really “throw” a case in the closing arguments? Probably not. But ideally, they would simply withdraw prosecution in a case they didn’t believe in, if – and only if – they can get approval from their unit chief. The female defense attorney’s sudden choice to make out with a detainee and smuggle drugs in her body cavity for him? It felt odd … but just for that particular character. Defense lawyers do make these bad decisions from time to time. But even when they do, the defense bar is as dumbfounded by this behavior as the rest of the general public.
Frankly, my experience is that defense lawyers are particularly law-abiding because they have seen what happens to an arrestee’s life when he or she didn’t even break the law but appeared to be doing so to law enforcement. We’ve seen prison, and no thank you. Nothing is worth that, especially not winning a case. Zealous advocacy has its limits.
But all in all, any legal inaccuracies in “The Night Of” are nothing compared with how the show brilliantly captured the major themes and the culture of the criminal justice system.
John Stone, played by John Turturro, was perfect. Every prosecutor, defense lawyer and even civil litigator across the country knows a John Stone. He’s a solo practitioner, a courthouse denizen who shuffles around the halls of the justice center in his only suit, which fit him briefly when it was stylish in the 1980s. Stone’s “no tie” policy was a little over the top, but who knows – some courthouse out there may tolerate even the open-collar, raincoat-as-sport coat dress code, especially from “that guy.”
Like Stone, these guys usually carry a huge caseload of court-appointed cases, or high-volume, low-paying traffic and summary offenses. These allow him just barely to survive and work out of his apartment, but they also consign him to innumerable hearings in multiple courtrooms, for which he is in a perpetual state of tardiness. Here’s the paradox: The John Stones may be brilliant criminal defense lawyers, because they know every judge and every procedural angle. They’ve usually tried more cases than anyone else in the building.
Even a schlub who handles 30 cases a day for 30 years is a pro through sheer repetition alone. A defendant might actually be better off hiring a John Stone than a lot of the slick, pinstriped defense lawyers in the building.
Still, rare is the accused person or family who would willingly hire the John Stone over his colleague in the custom-tailored suits, based on Stone’s slovenly appearance, and street-crude (but candid) personality.
Detective Box, played by Bill Camp, was fantastic. A law enforcement career can wear a person down, make them jaded and understated. It’s understandable: Police spend a lifetime lied to by suspects, investigated by their superiors, complained about by suspects, and have their work often questioned by defense attorneys and even their own prosecutors. And of course, the subject matter of their work can be soul-crushing. The raffish, action-hero police detective trope of the ’80s made for great TV and film; it’s just not accurate.
Detective Box is accurate. People imagine police detectives to be shouting in interrogation rooms, throwing chairs, grabbing suspects by the lapels and smacking confessions out of them. That’s not accurate: The most successful detectives are pros at getting people to volunteer information willingly – whether it be witnesses or suspects or just custodians of needed records. That’s why the great ones are soft-spoken and avuncular – they catch more flies with honey than with vinegar. The best detectives are the nicest guys, a mien that belies their ever-vigilant BS sonar, which is constantly pinging away at all of us, looking for anything suspicious. They’re good at what they do.
The most accurate moment of the series for lawyers? It will vary widely depending on whom you ask, but for me it was the broken-down plea agreement. Plea hearings can actually be much less predictable than they sound. Unlike at trial, at a plea hearing, the attorneys cede control to the defendant. The judge “colloquies” the accused directly, asking him a prolonged series of questions to make sure he freely and willingly is pleading guilty, because he is in fact guilty.
The defendant has what he often misperceives as his one opportunity to argue his case pro se in open court, or dispute certain facts, free of cross-examination. It’s understandable. As much as defense attorneys prep their client, the temptation of a last-minute change of heart is often too great for defendants. A judge can’t accept a guilty plea of someone who says he’s only pleading guilty for the deal, so the case has to go back on the trial calendar.
Plea hearings can feel like a disaster when they go south. “The Night Of” reminds us that they often go south for the right reason: because a defendant isn’t willing to say he did something he says he didn’t do. “The Night Of” stands as a reminder that a scuttled plea hearing can ultimately be a victory for the falsely accused, if they are acquitted at trial.
The most glaring overall truth of “The Night Of” is this: There are few winners in the criminal justice system. There is rarely a “Shawshank”-style redemption for prisoners, with a big money payday and a retirement to a Mexican resort town. The defense lawyers return to the grind, having earned just enough to hold them until the next client. The prosecutors are usually moving on, picking a new jury the next day. The family doesn’t get the attorney fees and costs repaid by the state. Police detectives don’t get Wall Street pensions for a noble act. And of course, you can’t un-ring the effect of the prison buzzer on a detainee, even after he or she is set free. The series captures the pyrrhic nature of victories in the criminal justice system: They are big wins, to be sure, but for whom, really?