Mimesis Law
15 August 2020

The Night Of: An Opening Statement “Calorie-Free of Substance”

August 16. 2016 (Fault Lines) —¬†Another episode of “The Night Of” has aired on HBO. This one begins the trial of Naz (Riz Ahmed) for the murder of a young woman he picked up in his father’s cab. His lawyers are Chandra Kapoor (Amara Karan), a brand new big firm associate, who picked up his case when Naz refused to follow her boss’s advice to plead guilty, and Jack Stone (John Turturro), a journeyman criminal defense lawyer.

Although it was great to lose Alison Crowe (Glenne Headly), the nasty big firm partner who involved herself in Naz’s case for absolutely no apparent reason, Chandra’s role is also questionable. She is a lovely person, and her idealism and commitment to Naz are refreshing, but she has no experience as a trial attorney. It is unreasonable to believe that neither the judge, nor the prosecutor would question her handling of a high profile murder case.

Regardless of their concern for Naz, the one thing judges and prosecutors fear is having an appellate court reverse a case to be retried. A defendant, who knowingly waives counsel and screws up his own trial has little to complain of, but one who is simply stuck with a bad lawyer may get a new trial because they received ineffective assistance of counsel. Judges are constantly worried about neophyte lawyers messing up their trials and getting them a bad grade on the appellate scoreboard.

Jack Stone is helping Chandra, but it does not seem like much help. His explanation of jury selection is to use a collection of stereotypes from which to strike the venire. Police, military, orthodox Jews, and elderly blacks are among those he would get rid of without further thought. Of course, good lawyers rely on more than just innate biases. They try to get answers from prospective jurors about issues affecting the case. Stone is very impatient about the trial process and does not seem to want to waste time finding out what they might think.

We never actually see the jury selection process, just a bunch of semi-conscious persons seated in front of an instructional video. It is possible, although unlikely, that the judge allowed no questioning of prospective jurors. The only time I ever experienced that was 25 years ago when I practiced before an 87-year-old federal judge in East Texas who limited the process to each person stating their name, address, employment and spouse. Then they sat down and you made your strikes. My stereotype was to strike the ones from a certain town that had been known as “the home of the Klan.”

Stone’s other dubious advice for Chandra is to keep her opening statement short and focused on “reasonable doubt.” Although “reasonable doubt” and the burden of proof are important concepts that should be explained (often during jury selection), if they are the only things that jurors hear about they are apt to believe the defendant simply lacks a defense. Technical “lawyer talk” alone is not going to carry the day.

Nor do defense lawyers win points for brevity, especially in murder trials. Since the defense will ultimately argue Naz did not kill Andrea – and someone else did – it would have been good to suggest that others had the motive, desire and opportunity to kill her, and that is why they should withhold judgement until all the evidence is in.

The fuzzy “reasonable doubt” defense highlights the bigger problem. Kapoor and Stone are not ready for trial. They have not even thought it through. I remember watching the first episode and thinking about the decedent, “how does this 20-something party girl have a $10 million brownstone on the upper Westside of Manhattan?” Only mid-trial has this crossed Stone’s mind. Of course, he did need to deal with a serious foot eczema issue. Now that herbal medicine has saved him, maybe he can pay some attention to his client’s case.

There is an interesting juxtaposition of opening statements. The prosecutor, Helen Weiss (Jeannie Berlin), gives a wooden-sounding, but substantive explanation of her case. It is television-short, but generally on message. Kapoor gives a cheerful and ingratiating presentation that is calorie-free of substance. In other words, Weiss is boring but actually says something. Kapoor sounds wonderful, but has nothing to say. In some ways, this is an insightful vision of the courtroom. Very mediocre prosecutors can have long and successful careers simply by rephrasing offense reports. Defense lawyers can learn to be charming, even when they have virtually nothing to work with.

It will be interesting to see in the next episode whether Stone accomplishes anything in the courtroom. So far, all he has done is change shirts with Naz. A trade of blue for beige. Apparently, blue gets you convicted every time. Naz’s jail guru tried to steer him toward lighter colors also. Why have I wasted years preparing for trials when all my clients needed was color coordination? Never mind the fact that Naz has new tattoos on his knuckles that say “sin” and “bad.” I guess that’s what pockets are for.

I have no clear sense of time on this show. Stone and Kapoor seem to have no other cases, yet they cannot get this one more prepared than her two-minute opening statement with no future plans for cross examination or presentation of evidence. Naz is so hardened by life at Rikers Island you might think he has already completed an entire sentence. Now that the trial has started, the breaks are infinite. Stone has time to do investigation between witnesses, none of whom spend more than minutes on the stand. Kapoor’s cross examination is often a single question, something like, “Would a murderer have acted like Naz did?” Um, yeah.

I look forward to an ending like an old Perry Mason show. The real murderer will be called to the stand and confess under oath. Will it be the victim’s evil stepfather, who bumps off women for their money? The hearse driver who kills to satisfy biblical prophecy? Or, is it Duane Reade, a street criminal driven insane by his parents who named him after a pharmacy? Tune in.

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  • Picador
    16 August 2016 at 10:45 am - Reply

    Just want to say that I am loving your commentary on this show. Such a stylish show, with such great performances and actually some really well-written dramatic scenes, but one that takes place in a fantasy-land when it comes time to depict the world of legal practice. The lawyers might as well enter the courtroom riding on unicorns and determine guilt by jousting with giant candy canes. And I don’t think that your criticism are overly persnickety or technical — the writers betray a deep ignorance of even the most basic realities of what lawyers do and how they do it.

  • Natalie
    16 August 2016 at 10:52 am - Reply

    I forgot to watch it on Sunday. I’ll have to do that before I read the rest of your article