Was Their Either Law Or Order: Part 1
How TV’s Most Successful Franchise Warped America’s Perspective on Criminal Justice
Around this time last year, as the protests over George Floyd’s death were beginning to gain steam, there was a lot of discussion among critics as to how much damage the police procedural may have done to our nation’s mindset when it came to policing. I was among one of those critics who tried to take a neutral tone — I pointed out how series like The Closer and many of Dick Wolf’s series have skewed the way look at crime, but argued in favor of many of the series on policing that David Simon and Tom Fontana wrote. And while I admitted that this had stained how I watched the original Law and Order, I mostly gave it a pass. I was now clearly looking through rose-colored glasses.
Part of it was because the approach the series took towards policing — which is what the world was focused on — was relatively neutral. Yes, cops approached suspects aggressively in the interrogation room and were very hostile towards perps, but compared to a lot of the other series on TV, it was fairly mild. (In retrospect, the idea that the series was probably the best propaganda agent for the NYPD is accurate.) Where Law and Order truly may have made a mockery of the justice system was in the courtroom itself, as it showed very clearly how much prosecutors would be willing to manipulate the law in order to get criminals in prison.
There is a dual irony in the fact that for so many conservatives Law and Order was viewed as being a mouthpiece for liberal talking points. It is true that the series would go after cops more often than any police drama as well as doctors, executives, political officials, gun manufacturers, and on a couple of occasions reality TV makers. But in that sense, the series writers would demonstrate just how far prosecutors are willing to twist the law to put people in prison, which says a lot about how far they would go other criminals. The other irony is that for most of the face of justice on the series was played by Sam Waterston, an actor known for being a bastion of liberal politics. Jack McCoy, by contrast, had an approach to the law that would not have been out of place in the John Ashcroft-Bob Barr era.
So now that the nation is going through a larger reckoning of the entire criminal justice system, I think it would be fair to see how Law & Order viewed the approach to criminal justice and what it may say about prosecutors and Das in particular.
One of the more interesting things when we consider Law and Order’s approach to justice is that its iron-fisted approach to crime was not always the picture it printed. Sam Waterston was on the series for so long that many viewers presume that he was always there. In fact, when the series premiered in 1990, the lead District Attorney was Ben Stone, memorably played by Michael Moriarty for the first four seasons of the series. What was fascinating about Stone was that he was a character we almost never saw on television before and really haven’t since: a prosecutor with a conscience. Indeed, there’s an argument that had Ben Stone ever been on a ballot in 1990s New York, he would have labeled ‘Soft on Crime’
Now, I’m not saying that Ben Stone was a softie. When the criminal had violated the law or the code of his profession, he was more than willing to go after them full force. Indeed, watching him deal with a suspect either in his office or in the witness box could be some of the most thrilling moments in the show’s entire history. My favorite episode of all time: ‘Indifference’, an episode that was so borrowed from the Joel Steinberg case there was a disclaimer at the end. In the final minutes as Stone cross examines the defendant, his normally quiet tone is filled with increasing rage as he berates him for his utter neglect. He buries him with his final question, when his voice drops to its lowest yet/ It was magnificent.
But Stone’s quiet approach was indicative of how he handled the job. He would rarely raise his voice at all, but you could tell when he was angry when he would refer to the accused as ‘sir’ or ‘ma’am’. (When he said those words to a defendant, you knew how much contempt he held them in.) Where he differed from Jack McCoy and most of the people in the DA’s office was that he believed truly that justice should be tempered with mercy. In ‘Starstruck’ a clearly delusional fan assaulted a soap star but he didn’t fit the boundaries of criminal insanity. Stone sent him to jail, but felt remorseful: “He should be in a hospital. We sent him to prison.” In another memorable episode ‘Mother Love’, a junkie is found dead and we learned her mother killed her. When Ben learns the explanation, he doesn’t want to indict; his colleague Paul Robinette (Richard Brooks) has to talk him into it. And in one particular interesting episode, a children’s author who abducted a young foster child from her abusive mother, it becomes clear that she’s delusional, but rather than offer a plea, her attorney wants a trial to take a look at the flaws of the foster system. Stone calls for a competency hearing for her, because while he believes in her guilt, he doesn’t think she belongs in prison.
Stone’s ever present calm was a deep contrast to the inner torments of the actor who played him. Moriarty had a history of mental illness and in the spring of 1993 began to suffer from the extreme delusion that then Attorney Janet Reno was a fascist and that he alone had to stop her from becoming a dictator. His behavior became so erratic that Wolf had to fire him (or he resigned, it’s never been quite clear.) He then moved to Canada, where for a long time his delusions persisted. He suffered severe drinking problems and announced a run for the presidency of Canada. Eventually, he recovered from his illness (he even won an Emmy for his work in the TV Film James Dean.) But its still one of the strangest stories in the history of Hollywood.
Even though his character’s departure was forced, his final episode seemed utterly in agreement with what he knew of him. In ‘Old Friends’, in order to convict a Russian mobster of murder, he bullies the only person who can testify against the killer into it. Immediately after the verdict, the witness is killed, and he realizes he has gone too far. He resigns from the DA’s office. In comparison to how his replacement would handle the Russian mob a few years later, it reveals just the different universe that Jack McCoy and Ben Stone lived in. I’ll get to that in the next part.