For The Defense, Part 1
How The Perception of Defense Attorneys on Television May Have Skewed The Perception of Criminal Justice
I was going to follow up on my treatise on Homicide when the wind was knocked out of me last night when I read article about how many of the detective that are mentioned in Simon’s novel (and became the inspiration for characters in so much of his TV work) have become involved in cases that had been served as miscarriages of justice. I will return to Homicide eventually because I still think there’s more of value to right about, but I’m going to shift first and deal with yet another issue that may have led to our perception of justice on television.
It’s an almost universal truth whenever the police procedural moves into the courtroom that the detectives utterly loathe putting their cases in the hands of a jury. (Frank Pembleton makes this case clear in the Pilot of Homicide when Bayliss confronts him about denying a suspect right to counsel before eliciting a confession.) This comes very clear in Homicide the handful of times we meet defense attorneys who are absolutely determined to represent any client and manipulate every technicality in the law in order to get their client off. (Indeed, in the finale a serial killer is set free because his defense attorney says he has been held 181 days without trial. This is how Simon and Fontana end up justifying Bayliss’ murder of him.) This is carried on to an extent in The Wire where every major drug dealer is represented by Levy, who Omar memorably cuts down in court when Levy dares accuses him ‘of praying off the innocents’ (“I got the shotgun. You got the briefcase. It’s all in the game.” And as anyone who watches Law and Order, Jack McCoy is forever being set upon by defense attorneys who represent either wealthy clients or are misguided idealists representing criminals. In the final season, Mike Cutter actually dares to accuse a representative of The Innocence Project of manipulating a case for a guilty client. In a larger sense, the attorneys on Law and Order can be viewed as ‘originalists’ believing the law has to be interpreted exactly as it was at the writing of the Constitution, while the defense generally looks for ways for it to evolve. The defense is invariably portrayed as the villain.
Why does television view the defense attorney as part of the problem with crime rather than an equal partner in the justice system? It’s a complicated question and part of it may go back further than television itself.
During the era of Hollywood movies, there was a very strict system of justice: the criminal must always be guilty and they must always be punished. Almost inevitably that meant that they died before the final fadeout or if they went to jail, it was to the electric chair or the gas chamber. This was true during the era of film noir as well; you never see Mary Astor in court for her crimes in The Maltese Falcon and none of Humphrey Bogart’s characters ever testify against the criminal; they generally shoot them dead. I’m relatively certain that there were very few courtroom dramas in the 1930s and 1940s where the criminal was allowed to be found innocent in a court of law. In The Postman Rings Twice, Lana Turner and John Garfield are acquitted of the murder they commit, but by the end of the movie Turner’s dead in an auto crash and Garfield is going to be executed for her murder even though he is innocent of it. That’s how justice works.
In the 1950s we slowly see a progression towards the justice system being flawed. In 12 Angry Men (which was a TV play before it was a movie) Juror Number 8 does make it clear that the man representing the accused is a public defender who has nothing to gain from getting this man set free. I’m relatively sure he is surprised as anybody when the jury comes back with a not guilty verdict. Witness for the Prosecution shows Charles Laughton’s character agreeing to take an apparently guilty man’s case because he believes he is innocent, only to learn after the man is acquitted that he has been manipulated by both his client and the accused wife.
No representative of the courtroom drama would be complete without To Kill a Mockingbird. Everybody considers Gregory Peck’s portrayal of Atticus Finch one of the most heroic ones of all time and The Good Wife actually has a couple of its characters say they decided to become lawyers after seeing it. That said, I’ve never been entirely convinced Atticus was ever as heroic as we portray him .To be sure, he does represent an African-American man accused of rape, a case no one else will touch and one he is sure to lose. It’s how he defends his client that I find questionable. If you read the book, Atticus defends him by accusing the women in question of seducing the accused — in other words, he’s blaming the victim. The fact that the woman in question very well might be lying is beside the point; I have a hard time thinking Atticus would get past the #MeToo movement. A lot of people were upset when Harper Lee wrote Go Tell a Watchmen and portrayed Atticus as a lot more cynical and less heroic than he has been in the book and film. Was it possible she had realized the world was more complicated, was trying to paint a more accurate picture, and the millions of people who wanted to see Atticus as a pure hero didn’t like it?
My personal favorite film version of a defense attorney from the era is James Stewart’s performance as Paul Biegler in Otto Preminger’s Anatomy of a Murder. In a way Stewart’s character is the prototype of so many defense attorneys we would see in film and TV to come. He isn’t in this for some noble cause, and he doesn’t particularly like his client: but he needs the money and publicity the case will bring him. He explains to his client (Ben Gazzara) the ways he usually gets his clients off, eliminates three of them, and settles on the defense that the killing was excusable. The client, a veteran of the Korean War just learned his wife was raped and shot the accused five times in the chest. The defense he uses (and its clear Stewart barely believes it) is a form of temporary insanity and Stewart’s character tries to use his wife rape as the cause. (These days we would call it nullification.) In the courtroom Stewart is charming and very funny and uses that humor to frustrate the uptight prosecutor. (He has less luck with his second chair, played by a then unknown George C. Scott.) Stewart’s character is in my opinion more realistic than Atticus Finch because he’s not idealistic or heroic: he’s just doing a job. He drinks heavily, he’s strapped and he knows it, and even if he doesn’t like his client, he’ll give him a real defense. That’s admirable in a realistic way.
So considering that, let’s start looking at the defense attorney on television. From the early days of television the discussion can’t be made without Perry Mason. Mason’s enduring popularity (particularly Raymond Burr’s version) lasting well beyond the length of the series; throughout the 1980s and well into the 1990s there were countless TV movies with Burr still getting his clients out of false murder charges. Generations of TV fans probably thought Mason was the model for a defense attorney, even though his clients were always innocent and he never lost a case. His job, assisted by Della Street and Paul Drake, was to prove that the cops were wrong and getting the guilty party to confess on the stands. Now there’s an argument to be made that Mason was a precursor of so many lawyers who would later exonerate guilty clients and help fix a broken justice system. I wouldn’t make that argument though; Burr’s Mason was essentially a private eye without a badge. Maybe millions of people became defense attorneys because of Perry Mason; they were in for a rude awakening when they found out what the real justice system was.
(For the record I think HBO’s remake of Perry Mason set in Depression-era, showing a corrupt justice system at pretty much every level and Mason being as cynical of the justice system then anyone else, is a much better version. And who knows? Maybe every era gets the Perry Mason it needs. 1950s America needed Raymond Burr’s earnest one: this era requires Matthew Rhys’ bitterly contemptuous one.)
Coming to the present moment, the most famous defense attorney on television now is Saul Goodman, indelibly portrayed by Bob Odenkirk for more than a decade starting on Breaking Bad. Saul is loud, flashy, perfectly able to work the system between the margins, willing to do anything for money, and pretty much a great criminal. He also clearly has a moral compass, is utterly out of his league when it comes to dealing with drug lords like Gus Fring and cold killers like Mike Ehrmantraut, and the further along Walter White becomes on his quest towards Heisenberg, the more rational (and frantic) his advice becomes and the more it is disregarded. Eventually to flee the police, he has to completely change his identity and the last time we see him on Breaking Bad Walter is still ignoring his rational advice.
Saul Goodman story is tragic on Breaking Bad. When we learn his origins on Better Call Saul the extraordinary prequel series, it becomes absolutely heartbreaking. Saul is actually Jimmy McGill, and we’re not entirely surprised to learn he was a criminal con man before we met him. What is shocking is that there was a good man there once. You see it in his interactions with his soulmate Kim Wexler (Rhea Seehorn) who loves him despite — maybe even because — of his flaws. You see in the way he treats his brother Chuck (the incredible Michael McKean) a legendary attorney who has a mental breakdown which he disguises as an allergy to electricity. And throughout the first three seasons, you keep seeing the good man that he is trying to break through. But ultimately that man is buried — because of what Chuck really thinks of him. Jimmy became an attorney to try and earn his brother’s respect and thought that the man who ran his law firm Howard Hanlon (Patrick Fabian) decided not to hire him. At the end of Season 1, we learn that it has been Chuck the whole time who has never respected his brother choice of career and that the worst thing he can think of is “Slipping Jimmy with a law degree!”
(I’ve only recently learn that creator Vince Gilligan had decided at the beginning of the series to have Chuck be Jimmy’s better angel and Howard be his heavy, only to decide halfway through Season 1 that it made more sense for their roles to be reversed. In my opinion, this is almost as brilliant a decision as Gilligan’s one in Season 1 of Breaking Bad not to kill off Jesse Pinkman at the end of that year. Not only does it make Jimmy actions seem practically justified, it makes Howard much more sympathetic not only when his efforts to mend fences with Jimmy are rebuffed, but makes him feel more like someone who has been oppressed by Chuck his entire career and is now unhappy he can’t make things right.)
Saul Goodman’s story will come to an end relatively soon. (AMC says later this year but given the pandemic, Odenkirk’s health issues and Gilligan’s way of ending series, I’m less sure.) But I honestly feel more empathy for him than I have far too many protagonists in the era of Peak TV. Unlike so many bad men, and indeed so many defense attorneys in television, he had a sense of right and wrong and that’s the kind of attorney and character we need.
So now we’ve seen the extremes of the defense attorney from one Golden Age to another. Is there a line that explains how we got there? I think there is, and in the next article I’ll tell you who drew it.