We Find the Defendant Not Guilty (if That's O.K. With Everyone) - New York Times

It's kind of funny to look back at this piece as we, in the RTB writer's room begin to ponder our season finale (RTB 215). I suppose it's a nice metric by which to judge one's own show. I wrote this for the New York Times back in January of 2006...

Long strange trip.



We Find the Defendant Not Guilty (if That's O.K. With Everyone)

By DAVID FEIGE
Published: January 1, 2006

FROM the airy second-floor ballroom of a once-grand hotel, David Swain, the preening, pugilistic focus of ABC's new show "In Justice," presides over an organization he calls the National Justice Project. Loosely based on the many "innocence projects" that have sprung up across the country since the advent of DNA testing, the show, in its promotional materials, claims to offer "a completely new take on the procedural drama."

The criminal justice system has always made for good drama, and over the years the political and narrative tides have shifted back and forth between the values of protecting the innocent and nailing the guilty. But 15 years into the reign of "Law & Order" (with no end in sight), "In Justice" makes it clear that even a series about wrongful conviction must tiptoe around the idea of setting the inmates free.

The show's solution is to create a zero-sum world in which for every innocent person who is exonerated and liberated, a sneaky perp must get his or her comeuppance. The problem is not merely that "In Justice" is terribly inaccurate (though it is), but that it shows just how rigid our collective view of the criminal justice system has become, and how unwilling we are to rethink our view of cops and prosecutors as heroes.

Police procedurals have often both reflected and predicted our criminal justice sensibilities. From 1957 to 1966, when "Perry Mason" first graced our televisions, viewers were accustomed to seeing the failures of the system, such as innocent people being accused of crimes they simply didn't commit. And while Perry Mason often identified the real perpetrator, as a zealous defense lawyer he nonetheless embodied the era of the Warren court, and presaged a great expansion in civil liberties. It was, after all, well into the show's run that the Supreme Court decided Miranda v. Arizona (the seminal 1966 decision that required police to read suspects their rights before interrogating them), Gideon v. Wainwright (the 1963 decision requiring that poor people be represented by counsel when charged with serious crimes) and Mapp v. Ohio (the 1961 decision banning the use of evidence discovered during illegal searches).

But in the intervening decades, from "Hill Street Blues" through the wildly successful "Law & Order" franchise, police dramas have moved from a presumption of innocence to a certainty about guilt. And as goes television, so goes America.

"Law & Order" had its debut in 1990, at the height of the crack craze and the apotheosis of violent crime. It brilliantly exploited the crook fear of the late 80's and early 90's by recasting the entire criminal justice system - lionizing sharp-featured, street-savvy prosecutors and cops and rendering defense lawyers as ineffective and largely irrelevant. Both on our televisions and in our courthouses, the focus of the criminal justice system became ensuring not the freedom of the innocent but the incarceration of the guilty.

Through more than a decade of falling crime rates, mandatory sentencing minimums and an incarcerated population that nearly tripled, from 739,000 in 1990 to well over two million today, "Law & Order" made more than a billion dollars while adroitly exporting its clever formula to a number of successful progeny. Other than "The Practice," David E. Kelley's darkly rich drama about a scrappy defense firm, there hasn't been a genuine challenge to the "Law & Order" worldview since it took to the airwaves.

But amid resistance to the Patriot Act, revelations of a secret domestic spying program and a growing awareness - even among senators and governors - that the genuinely innocent can in fact be convicted, this would seem to be the time for the pendulum to swing back toward a more nuanced view of the criminal justice system.

"In Justice" is, in fact, that first small step, though it is clearly terrified about abandoning the cop and prosecutor archetypes that "Law & Order" erected. The result is, that unlike "Perry Mason," "In Justice" simply can't seem to play defense lawyers or the National Justice Project straight.

That David Swain omits the word "innocence" from his project's name is no accident. The National Justice Project seeks both to free the innocent and to incarcerate the guilty - thereby blurring the lines between prosecutors and defense lawyers to virtual irrelevance. This isn't just a convenient dramatic device; it also reflects the fear that merely freeing the innocent won't sell. The consequence of that fear is a show that ignores the fundamentally adversarial relationship between prosecutors and defense lawyers, and squanders the narrative tension that might otherwise propel the show toward righteous indignation.

Swain himself (played by Kyle MacLachlan) comes across as a man more motivated by ambition and ego than by compassion; heroic crusading defense lawyers aren't ready for prime time just yet.

While the show does do an outstanding job of vividly portraying the agonies of prison, the dangers of false confessions, the vagaries of eyewitness identification and the pressure on criminal defendants to snitch, at its root it seems more likely to adopt the traditional shibboleth of incompetent defense lawyers than to turn a critical eye toward bad judges or venal prosecutors. And it is in the acceptance of this worldview that the show falls most dramatically short of its promise.

Even in its structure, "In Justice" is familiar. After the view from the jury box and a plea from a desperate defendant or his family, the rest of the hour follows Swain and his team, led by Charles Conti (Jason O'Mara), his chief investigator - an ex-cop who once put away the wrong guy before quitting the force and turning toward righteousness - as they pound the pavement, engage in elaborate expository disquisitions and eventually solve the case. In the end, it takes only a few minutes for the prosecutors to see the light, for the real perpetrator to confess and for the wrongly convicted to walk dramatically out of prison.

At the end of the first episode, a teary-eyed brother embraces his newly freed sister. "Thank you," he murmurs to Swain, "thank you for giving me back my family." Moments later, as Swain turns maudlin, Conti fixes him with a perplexed look.

"You know," Conti says, "I can never tell if you are a cynical man pretending to be sentimental or the other way around."

Swain, cocking his head in the canny fashion of a supermodel on a photo shoot, glances back at his trusty sidekick. "Does it matter?" he asks archly.

It won't be long before there is a show for which the answer to that question is "yes."


David Feige is a public defender in the Bronx and a writer. "Indefensible," his book about the criminal justice system, will be published in June by Little, Brown & Company.