Criminal Law and "The Wire"

Susan A. Bandes, DePaul University College of Law, and Florida State University College of Law, has published And All the Pieces Matter: Thoughts on The Wire and the Criminal Justice System, in volume 8 of the Ohio State Journal of Criminal Law (2011). Here is the abstract.

The standard police procedural, even including great dramas like NYPD Blue and Hill Street Blues, adheres to time-honored narrative conventions. It focuses on good if sometimes imperfect cops trying to find the real bad guys - the perpetrators - and bring them to justice. A crime had ruptured the social fabric, and at the end of the episode, guilt is determined and things are put to right. The standard procedural is concerned mainly with individual fault and heroism. It does not raise disquieting questions about the criminal justice system, the legal system, or the social and political arrangements that lead to a permanent underclass. There are eight million stories in the Naked City, and in the police procedural, every one of them stands on its own.



The Wire is a different kind of television. It aims not to reassure but to unsettle, or as David Simon once put it, "to pick a fight." Unlike the standard police procedural, which resolves a discrete problem every week, The Wire keeps widening its lens to reveal the context in which crime and policing take place. Although the show begins as a description of an actual wiretap, the series soon turns out to be about a series of interlocking systems, wired for dysfunction.



The Wire is deeply concerned with institutions, how they constrain the shape of individual lives, and how they perpetuate themselves, often at the expense of achieving their legitimate goals. However, although the show’s most cherished subject is the institutional roadblocks to good policing, The Wire defies the standard paradigm in this regard as well. It is not one of those cop shows that reflexively portray constitutional rights as annoying hindrances to law enforcement. Other shows tell us that cops need free rein; that we ought to trust their instincts and keep the government and the Constitution off their backs. This show vividly demonstrates that those instincts are sometimes misguided or self protective and that the right kinds of limits can play an important role in good police work.

Download the article from SSRN at the link.


This essay is an exploration and appreciation of The Wire’s remarkable portrait of the criminal justice system, with particular attention to its insights about policing and criminal procedure. It uses the chess lesson scene from Season One, “The King Stay the King,” as a starting point.

"Outlaw" Debuts

The Blog of Legal Times takes aim at Outlaw, Jimmy Smits' new legal drama on NBC. Pow! Smash! Bam! Generally, BLT doesn't like the new show. Here's an excerpt.

Maybe it was when Jimmy Smits' character, Supreme Court Justice Cyrus Garza, got into an argument with a comely American Civil Liberties Union lawyer who was picketing a public appearance of his -- followed shortly by the two of them sleeping together.

Or maybe it was the scene in which a U.S. senator ominously threatens Garza with impeachment or bodily injury if he votes a certain way on a pending case. Or it could have been a dozen other scenes in which NBC's new show "Outlaw," which aired last night, asks viewers not just to suspend their disbelief but throw it out the window. The show in every way seemed to fulfill most critics' expectations, which were that 'Outlaw' is a stinker that won't and shouldn't last longer than it takes to say non compos mentis.

Other reviews here: from the Sun-Sentinel; from the Seattle Post-Intelligencer; from the New York Post; from the Boston Herald.

I decided to watch the premiere (which I missed) and another episode online. After about fifteen minutes, I threw in the towel. Never mind that Smits' character has little of the affect of a Supreme Court Justice. Never mind that a real Supreme Court Justice is not likely to allow a young woman to flounce about in his anteroom or sit seductively on his desk. Never mind that a Supreme Court Justice is likely to come on to a woman he doesn't know in public. Ick. And what awful procedural slips. An SCJ does not issue a stay of execution AND send the case back for retrial all by his lonesome. Yes, yes, I know, legal dramas don't have to be completely true to life, but this show really does veer pretty far from what I at least can accept, much as I love legal shows and TV drama in general. What can other viewers accept?

I also watched the second episode as aired. This one I liked a little better. The acting, I thought, good. Mr. Smits always amazes me, and the rest of the cast is good. But again, the plot was average.

"Outlaw" should be outlawed. I give it (maybe) one more episode. Too bad. I like Jimmy Smits as an actor. He needs better material than this.

"Wired" At Harvard

Two instructors at Harvard are using HBO's "The Wire" as fodder for a course in urban inequality. One of them, William Julius Wilson, wrote the book that serves as inspiration for the show's second season. More here, picked up by the Washington Post.

The "Dexter" Defense

Lewis Unglesby, the defense attorney for a seventeen year old Louisiana man accused of murder, says viewings of the Showtime series "Dexter" influenced his client. Police seized DVDs of the show at the defendant's home. Mr. Unglesby entered a "not guilty by reason of insanity" plea for his client in early July. More here from the Baton Rouge Advocate.

The problem? Dexter is a serial killer who eliminates other serial killers. Mr. Unglesby's client is accused of murdering an eight-year-old.

Promises, Promises

Wendy Adams, McGill University Faculty of Law, has published ‘I Made a Promise to a Lady’: Critical Legal Pluralism as Improvised Law in Buffy the Vampire Slayer, in volume 6 of Critical Studies in Improvisation (2010). Here is the abstract.

Given traditional understandings of law, one might be skeptical of a claim that improvisation and justice are not mutually-exclusive concepts. Does not the significance of the rule of law, the requirement that we be governed by rules and not arbitrary, ad hoc discretion, call into question the legitimacy of improvisation in law? To this very lawyerly question, I provide a very lawyerly answer: it depends.

Legal orthodoxy may indeed refuse to acknowledge any role for improvisation in law, but other theories of law, particularly a theory of critical legal pluralism, is likely to be more accommodating. Critical legal pluralism rejects the characterization of law as an external force obeyed by legal subjects. Instead, critical legal pluralism recognizes the improvised nature of law; legal subjects are not law-obeying but rather law-creating, generating their own legal subjectivity and establishing legal order in real time as a knowledge process of creating and maintaining reality.

This article analyzes Buffy the Vampire Slayer, a popular television series, to explore the concept of critical legal pluralism as improvised law. Read jurisprudentially, the series provides numerous examples of the improvised nature of law as the social construction of legal meaning. A particularly compelling example is the character of Spike. True to the traditional (pre-Twilight, pre-True Blood) genre, Spike is an evil vampire, a demon without a soul whose capacity and appetite for violence have earned him the title of William the Bloody. Yet viewers readily accept a character arc in which Spike, motivated by chivalry (the genre of knights-in-armour, not vampires) vows to protect a human being even at the expense of his own existence. As a law-creating legal subject, Spike is bound by his commitment to both genre-hybridism and the improvised legal meaning of his circumstances; he has made a promise to a lady, and such promises must be kept, even by soulless vampires.

Download the article from SSRN at the link.

Soap, Soap, Soap, Soap, Soap, Soap, Soap, Soap, Soap....

From the Atlantic Monthly: the lingering effects of the soap opera, even as soap operas bite the dust. All those dasterdly evil twins! All those lawsuits! All those plots to murder someone! All that passion! Where did it go? Reality shows. And movies about soap operas--sorry, daytime dramas. Think Tootsie, and Soapdish.

And You Thought Pop Culture Wasn't Important...

Walter Dellinger on Mad Men (the show, that is).

Richard Nixon, Watergate and Pop Culture

On this day in 1974, Richard M. Nixon became the first U.S. President to resign, unable to overcome the rather deleterious effects of the Watergate coverup (and the vote to impeach him) on his administration. Mr. Nixon and the Watergate period have been immortalized in popular culture in such films and tv mini-series and books as

Frost/Nixon (2008), a film dramatizing the David Frost interviews with Mr. Nixon, directed by Ron Howard, whose own career began during the period during which the politican was Vice-President (and check out a blog post from the Daily Telegrapht about Nixon's representation in movies here)

Nixon (1995), a film directed by Oliver Stone, starring Anthony Hopkins

All the President's Men (1976), based on the Woodward/Bernstein book (1974) in which Nixon barely appears, but which he dominates

Mark Feeney discusses Hollywood's love/hate relationship with Mr. Nixon in Nixon at the Movies (University of Chicago Press, 2004)

David Greenberg analyzes the impact of that five-o-clock beard in Nixon's Shadow: The History of an Image (W. W. Norton, 2004)

Mr. Nixon even turns up in music: think John Adams (great name) Nixon in China (1987), and recorded in 1988.

Perhaps the greatest legacy of Watergate for lawyers and law students? That pesky course in legal ethics and all those tv shows and movies that highlight attorney bad behavior. Every non-lawyer loves trying to identify it and writing about it has become a cottage industry. Here's one example.

A complete Watergate bibliography might be impossible, but here's one from 2000. Here's one on Richard Nixon.

Hanging Around "Hung"

If you've been wondering what the television drama Hung (HBO) is really about, the New York Times' Ginia Bellafante explains it all for you here. Watch it without shame, and deconstruct it seriously.

The Villains of "Law and Order"

Stanley Fish on Law and Order: TOS. (And a law and pop culture doink-doink to everyone.)

The Law in "Deadwood"

Rebecca Johnson, University of Victoria, Faculty of Law, has published "Living Deadwood: Imagination, Affect, and the Persistence of the Past," in volume 42 of the Suffolk University Law Review (2009). Here is the abstract.

In this article, I take inspiration from Edward Said's comments that we should look to tales about the past for insight into cultural attitudes of the present. Here, I look to the HBO series "Deadwood" to consider what it can tell us about our emotional investments in certain ways of understanding law, order, and the economy.

Download the article from SSRN at the link.

An Early Taste of "The Defenders"

CBS has posted video clips of its upcoming new legal drama "The Defenders", which stars John Belushi and Jerry O'Connell, here. The show, which is set in Las Vegas, seems to have no relationship to the iconic E.G. Marshall/Robert Reed series of the early 1960s. Mr. O'Connell, you'll remember, finished up one year of law school at Southwestern this spring. Here's a description of the show from the CBS website.

THE DEFENDERS, from the executive producer of CSI: CRIME SCENE INVESTIGATION, is an irreverent new legal drama about two fiery and charismatic Las Vegas defense attorneys. Tenacious, defiant and completely engaging, they argue the law, and they follow the law, but they always keep a few tricks up their sleeves. No matter what the odds, these lawyers keep fighting for the little guy.

I listened to some of the stars' comments, including the assertions that one currently sees legal shows from the point of the view of the prosecutor. I'm not so certain of that. I think we've seen a fair number of defense lawyer shows, just in the past few seasons. Think about Boston Legal, The Practice, Just Legal, Eli Stone, The Deep End, Raising the Bar (agreed, this show features prosecutors and defense attorneys), Drop Dead Diva, The Good Wife...shall I go on? If you're curious about the number and point of view of lawyer shows, check out this roster, courtesy of Marylyn Robinson of the Tarlton (University of Texas) Law Library.

Lawyers In Your Living Room

Michael Asimow, University of California, Los Angeles, School of Law, has published Lawyers in Your Living Room! Law on Television an introduction, in Lawyers in Your Living Room (Michael Asimow, ed.; ABA Press, 2009). Here is the abstract.

From Perry Mason and The Defenders in the 1960’s to L. A. Law in the 80’s, The Practice and Ally McBeal in the 90’s, to Boston Legal, Shark, and Law & Order today, the television industry has generated an endless stream of dramatic series involving law and lawyers. As a result, most members of the public receive most of their information (and misinformation) about what lawyers and judges do and how legal institutions function from absorbing pop culture representations on television. This book features 36 chapters about legal television, both domestic and foreign, written by 40 different authors. In addition, it contains celebrity introductions by Sam Waterston and James Woods, two of the premiere actors portraying lawyers in contemporary television.
The book covers the Judge Judy phenomenon (including her foreign counterparts) as well as shows that are not primarily about lawyers but feature important lawyer characters (such as The Simpsons or The West Wing). It also contains chapters about the production of dramatic legal shows, including writing and technical advising, and about legal ethics on television. The book concentrates on the personal and professional character of the lawyers -- which runs the gamut from fearless champions of the innocent to the sort of unethical or personally dysfunctional lawyers that the public loves to hate.

The McCarthy Hearings

The New York Times reminds us that on this day in 1954, attorney Joseph Welch faced down Wisconsin Senator Joseph McCarthy. On behalf on his young colleague Fred Fisher, whom McCarthy had assailed indirectly as a Communist because he was a member of the National Lawyers Guild, Welch stormed,"[U]ntil this moment, Senator, I think I never really gauged your cruelty or your recklessness." According to the Times, he went on, "If there is a God in heaven, it [the attack on Mr. Fisher] will do neither you nor your cause any good." Members of the audience applauded Welch.

Welch later went on to be cast as the judge in Otto Preminger's film Anatomy of a Murder, opposite Jimmy Stewart as Paul Biegler, Ben Gazzara as Frederick Manion, and Lee Remick as Laura Manion. He also was a guest host on the Kraft Television Theatre and had some other hosting roles on television.

CBS' New Legal Drama

CBS has picked up the new legal drama "Defenders," in which Jim Belushi will star as a Las Vegas attorney who fights for the "little guy."

An End To Law & Order?

Will "Law and Order" disappear from the airwaves? Rumors are flying as NBC executives apparently discuss furiously with Dick Wolf over broadcasting a final year of the long-running drama. Keeping the veteran series for the 2010/2011 season would mean L&O would have outlasted legendary oater "Gunsmoke" (1955-1975) as longest running TV drama. Read more here in a post from James Hibberd's blog The Live Feed and here in an article from the Washington Post.

Update: It seems as if L&O has been axed. Mr. Wolf may try for a home for his flagship series on TNT at another network. He is, according to at least one source, George Carlinly angry at the cancellation.

Update to the update: It's official, according to the Hollywood Reporter. L&O has finished its run on NBC. Dick Wolf's comment: "Never complain. Never explain." L&O: SVU still airs on NBC, and L&O: Criminal Intent airs on the USA Network. Another series, Law & Order: UK, airs on the British network, ITV1.

Here's a quick look at the roll of some names that have graced the L&O roster. Meanwhile, fans can look forward to "Law & Order: Los Angeles" (aka LOLA) for the fall.

For analyses of L&O, see:

Keetley, Dawn, Law & Order, in Prime Time Law (Jarvis, Bob, and Paul Joseph, Carolina Academic Press, 1998).
Mader, Shannon, Law & Order, in Lawyers in Your Living Room 117 (Michael Asimow, ed. ABA: 2010).
Rapping, Elayne, Law and Justice as Seen on TV (NYU Press, 2003).

Evaluating the CSI Effect

Jessica D. Gabel, Georgia State University College of Law, has published Forensiphilia: Is the Public Fascination with Forensic Science a Love Affair or a Fatal Attraction?

It is forthcoming in the New England Journal on Criminal and Civil Confinement. Here is the abstract.

In February of 2009, the National Academy of Sciences released its much anticipated diagnosis and prescription for what ails the forensic science community. The Report confirmed the low but steady noise that had been building in the criminal justice system for at least a decade: that, with the exception of DNA evidence, much of what is presented as forensic science is not really science at all. Instead, a large segment of the high-tech pageantry seen on television and now expected and employed in court would fail to clear even the lowest hurdles of stringent scientific inquiry. Nonetheless, forensic evidence is often used to demonstrate the certainty of a person’s guilt by authoritatively “matching” evidence from the crime scene or victim to the suspect. The Report sounded the alarm as to the needs of the forensic science community, raised critical concerns, and even suggested a remedy by calling for the creation of an independent agency to regulate the field of forensic science. Moreover, it came at a time of “forensiphilia” – where forensic science is itself a celebrity that captivates and enchants audiences. One year after the Report caused ripples throughout scientific and legal circles, it seems as though, in some ways, the shock has passed, numbness has set in, and progress is idle. This article will examine the evolution of forensic science on television and in the courtroom. It will evaluate whether DNA is the reliable anomaly among the forensic science disciplines. Finally, along a similar vein to the Report’s resolution to strengthen forensic science, this article will call for a strengthening in legal education aimed at fostering both an understanding of the advances in science and a skepticism towards methods that inherently lack a solid foundation in science.

Download the article from SSRN at the link.

Rights Talk in Science Fiction

Christine A. Corcos, Louisiana State University Law Center, has published Visits to a Small Planet: Rights Talk in Some Science Fiction Film and Television Series from the 1950s to the 1990s. It is forthcoming in the Stetson Law Review. Here is the abstract.

As early as the seventeenth century, authors, particularly satirists, used the travel essay as a means to examine and critique societies, including their own. If an artist’s government discouraged or banned political or social critique, he was necessarily forced to disguise his criticism as fiction - the more fanciful, the better. This practice has carried over to the genre of science fiction (SF).

While authors fictionalize many of the elements in SF to make their stories more exciting and bizarre, some elements have made a transition into popular culture because they resonate with the human popular imagination. As a result, many individuals believe that the elements actually exist. Among them are popular methods of alien transportation, such as the rocket (often pictured as the “rocket to Mars”), the flying saucer, and the alien being interested in making contact with a human, either for benign or (more often) nefarious purposes. The idea that an alien means to visit Earth in order to destroy the planet or to cause us harm is one that quickly becomes a theme in novels, films, and television beginning in the mid-twentieth century, fed by actual political and cultural events.

These ideas resonate with human imaginations or they are embraced by spiritual beliefs. Viewers’ familiarity with real life space travel, which increases plausibility as well as the maintenance of traditional SF memes, allow SF writers to use the genre’s conventions to continue to critique society.

SF authors continually use human beings as the yardstick by which to measure aliens. So, while such films and shows may seem to invite us, through the use of the alien lens, to critique human society, they actually invite us to re-examine human society from a different, albeit a human, perspective. As the genre critiques human society from two perspectives, SF is actually well suited to examine the issue of civil and human rights.

This Article examines the critique of human society’s development and use of such rights within a sampling of SF film and television programs from the 1950s to the 1990s. Part II analyzes the treatment of civil rights within the alien invasion and infiltration narratives of the time period. Part III discusses the transition from the foreign alien-invasion narrative to the domestic alien narrative and its effect on the treatment of civil rights. Part IV explores the civil rights issues represented in the friendly alien-visitor narrative of the 1960s television show My Favorite Martian. Part V examines the civil rights questions the late 1980s and early 1990s television series Alien Nation poses. Part VI analyzes the civil rights issues the 1990s television series 3rd Rock from the Sun raises.

Download the article from SSRN at the link.

The Wire, National Security, and War

Dawinder S. Sidnu has published Wartime America and The Wire: A Response to Posner’s Post-9/11 Constitutional Framework in volume 20 of the George Mason Univesrity Civil Rights Law Journal (2009). Here is the abstract.

Pragmatists subscribe to the view that an individual’s practical experiences shape and inform an individual’s concept of the law. In Not a Suicide Pact: The Constitution in a Time of National Emergency, one of the legal community’s most admired and prolific pragmatists, Judge Richard A. Posner, presents his thoughts on how courts should resolve questions of constitutional law that implicate national security and individual rights.

As the relationship between security and liberty remains largely undefined in the post-9/11 world, Posner offers an important and timely perspective on a critical area of constitutional law. His framework is one in which security interests invariably supercede liberty interests in times of crisis. As such, according to Posner, an executive possesses significant authority to respond to national security needs in wartime and despite established rights, the judiciary should commensurately play a limited checking role on relevant executive action, profiling and discrimination of Muslims may be condoned, torture can be used to elicit information from detainees, and an executive may invoke the “law of necessity” to step outside of the “law of the Constitution.”

This essay uses an element of practical reality -- specifically themes from the acclaimed television series on law enforcement and crime, The Wire -- to challenge each of these conclusions from Not a Suicide Pact. Drawing on those themes, it argues that security and liberty are not locked in a zero sum game, that the judiciary should robustly check executive action especially in these perilous times, that profiling and discrimination of Muslims in the absence of any evidence of wrongdoing should be deemed impermissible, that torture is not only inconsistent with American legal obligations but also counterproductive to the war campaign, and finally that the executive is bound by and must not act beyond the Constitution, exigent circumstances and moral positions notwithstanding.

The essay thus suggests that the courts should give pause to the direction of constitutional law urged by Posner. Appealing to both law and practical reason, it admits that the law must be flexible in the post-9/11 era, but posits that the law and traditional constitutional norms still must guide and restrain the executive temptation to defend the nation at all costs.

Download the article from SSRN at the link.

Note also that some college instructors are using the show in courses. Here's a story from NPR.

Treme

Some early reviews are in on the new series devoted to post-Katrina New Orleans.