|
The Practice: A Search for Truth?
by George Cardona
This season's premiere of The
Practice begins at the scene of a crime already committed,
the house of a state senator in whose bed there is the very bloody
body of a very dead man. The body is not the first thing seen,
however. The opening shots of the episode turn only last to
the body, focusing first on the three others in the house: the
state senator, sitting upright in the living room, clothed only
in underwear, waiting for someone; his daughter, vomiting in
a bathroom; and his wife, showering. This focus is appropriate,
for as it unravels the episode is far less about the crime than
it is about the efforts of these three to manipulate perceptions
of the crime, feeding misinformation to and relying on faulty
assumptions by the prosecutors, the police, the media, and even
their own attorneys to conceal what really happened in the senator's
bedroom. That these efforts are ultimately successful (the true
turn of events is revealed only at the very end of the episode,
under circumstances-- a privileged conversation between attorney
and client -- that ensure that the true facts will never be publicly
known) rests on two aspects of the criminal justice system that
are (accounting both for dramatic license and the time constraints
imposed by the need to resolve everything within a two-hour,
less commercials, time slot) remarkably well conveyed: the ability
of criminal suspects with the necessary knowledge and resources
to hinder discovery of the truth and the extent to which criminal
prosecutions are affected by public opinion.
Criminal investigations move
forward under a number of constraints imposed by the Constitution,
ethical rules and practices, and common-law privileges. Intended
to prevent innocent suspects with limited resources from being
overwhelmed by an overreaching state enlisting its formidable
resources to pursue a conviction counter to the truth, these
same constraints can be used by those with the resources and
the will to make it very difficult for a well-meaning state to
uncover the truth. The state senator is clearly not one without
resources. Nor is he one unfamiliar with or unwilling to use
the mechanisms for manipulation available to those suspected
of a crime. The first to arrive, for whom the senator is waiting,
are not the police, but his attorney. And the senator's first
words make clear both his intent and his awareness of the means
to accomplish it. Not for him a panicked confession. Instead,
his first words, essentially "Tell me what I can tell you
that will not prevent you from representing me," signal
what is just the start of a relationship in which the attorney-client
relationship will be used by the senator as both a shield and
a sword, his consultations (and those of his family members whom
the firm also represents) with the firm's attorneys protected
from discovery by the state, while he uses them to shape the
misinformation he will provide. The episode captures particularly
well the dilemma this poses for the senator's attorneys; though
they come to suspect they are being used, their ethical obligations
to their clients limit their ability to do anything about it.
The first stage of the senator's
defense further demonstrates the mechanisms available to hinder
a criminal investigation. The initial decision by the senator's
attorneys, one increasingly common, is to stonewall police efforts
to talk to any of the three people present at the scene of the
crime. The senator relies on his Fifth Amendment rights. His
wife asserts spousal privilege. And the daughter relies on an
ethical rule that prohibits the prosecutor from interviewing
her without the presence of her counsel, in this case the same
attorneys who represent the senator, a presence that can, and
in this case does, eliminate the possibility of the interview
generating any meaningful information. The growing frustration
of the prosecutor at her inability to pierce this wall rings
true, as does the result. Confronted with an inability to obtain
any information about how the homicide occurred, and faced with
a rapidly evaporating time frame in which to gather ephemeral
physical evidence, the prosecutor is forced to guess at how the
crime was committed and structure the investigation accordingly.
Such guesses are not uncommon. But when they are incorrect,
the investigation can take an initial wrong turn from which it
never recovers. Such is the case here. The prosecutor makes
the guess that many would, that the senator discovered his wife
in bed with another man and, whether in a fit of rage or in cold-blooded
hate, shot him; accordingly, she has the senator arrested, declares
the wife a material witness, and seeks a court order to test
the wife for physical evidence of sexual activity consistent
with the suspected affair. As revealed at the very end of the
episode, this guess is completely wrong, and it forestalls the
police from gathering the physical evidence that might have revealed
for what they are various witnesses' lies and faulty assumptions
about what really went on in the bedroom in the moments before
the shooting.
Throughout the investigation
and trial, both sides are shown spending as much, or more, time
seeking to gauge and shape public opinion as they do actually
investigating and trying the case. Thus, the prosecutor seeks
to parlay the stonewall tactics of the defense into a benefit
by timely interviews suggesting (without violating ethical rules
that would prohibit a direct statement) that the senator's silence
must mean he has something to hide. The defense does not seek
recourse because, as one attorney puts it (in paraphrase), "We
are going to need the press more than they do." Soon, the
defense takes the offensive, the senator holding a masterful
press conference in which he garners immense sympathy by portraying
himself as the cuckolded husband who, seeking to defend his wife
from what he believes to be a rapist, unknowingly shoots the
man who is her lover. The prosecution responds not in court,
but with its own press statement. And during trial, the defense
structures its case based in part on opinions of a shadow jury
conveyed to the defense through an off-camera consultant while
both sides constantly seek guidance in polls of public reaction
reported by television legal experts. Putting aside a few excesses
acceptable for dramatic purposes, all of this mirrors actual
tactics in high-profile criminal cases, which, despite the best
efforts of many judges, inevitably end up being tried in the
media at the same time as in the courtroom.
Fittingly, even the resolution
of the case is rooted not in any belief that it is factually
correct, but in the need to cater to public perceptions. After
a lie by the senator's daughter during her testimony places the
prosecution's case at risk, a decision is made to offer a favorable
plea deal, a decision rooted in the district attorney's recognition
that this is a case he cannot afford to lose. The senator's
attorneys, who in an earlier discussion are seen fretting that
their reputation will hinge on this case, their firm being known
forever after as the one that had either lost or won, had originally
favored a deal, but now, with victory in their sights, advise
against it. The senator, despite this advice, insists on accepting
the deal, conditioned, however, on his ability to hold a press
conference before being taken into custody; as that press conference
reveals, the senator has agreed to the plea because it affords
him an opportunity to once again portray himself as the victim,
this time both the husband wronged by his adulterous wife and
the father seeking to protect his well-meaning but misguided
daughter from a possible perjury prosecution. Moreover, as we
learn later, the plea has provided the senator an opportunity
to ensure the concealment of facts he regards as more devastating
to his public persona than his criminal conviction. All of the
parties have at least suspicions (and in the senator's case actual
knowledge) that the plea does not represent factual truth. Nevertheless,
the plea is acceptable to all concerned both because it cannot
be shown to be false and because it offers the best available
means for preserving their respective public reputations.
Whether the rights accorded
criminal suspects, the role played by the media in high profile
trials, and more fundamentally the very nature of this country's
adversarial system of criminal justice work to further a search
for the truth (or whether they should) is an ongoing debate.
This episode of The Practice aptly highlights this debate.
Posted October 29, 2001
|
