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Series Premiere Reviewed by Mary Anne Wirth September 22nd, 1999
Intriguing Season Premiere on Mass Killing Aims For Drama More Than Accuracy
Like many of its predecessors, this episode uses a recent case as a springboard for exploration of a current issue, gun control in this instance. As usual, the story is fast-moving and the subject matter controversial. But as any Manhattan assistant district attorney would be quick to point out, the story -- perhaps for the sake of good drama -- isn't always faithful to the rules of criminal law. And the episode presents some situations that would probably never occur in the real world of police and prosecutors.
The first lack of realism comes with the episode's promising introduction of Detective Ed Green, played by Jesse L. Martin. All signs are that Detective Green is an interesting character and a talented detective, who has a great facility with the public and perpetrators alike. Whether chatting amiably with a witness on the street or manipulating a perpetrator into a confession, his "bedside manner" is impressive. But there are also hints of maverick tendencies, ranging from an unauthorized comment to the media to the more shocking use of excessive force. In fact, the first time we see Green deal with a perpetrator, he has just caught the shooter on the street and points a gun at the man's head, aiming for a quick confession. We also learn that he has two prior incidents involving the use of excessive force. It is undoubtedly worthwhile for series like Law & Order to address the issue of police misconduct. But why inject excessive force gratuitously into the plot? The inclusion of such behavior here was a clear stretch. It's highly improbable that a detective would hold a gun to a perpetrator's head and threaten him on a public street in front of a crowd. And Green did it in full view of the suspect's mother, who had just led the detective to her son. (Then again, let's remind ourselves of something: this moment made for good conflict. That, after all, is critical in telling a story.)
After Green and Briscoe nab the suspect, prosecutor Jack McCoy takes over. Despite the strong evidence against the killer, McCoy finds himself in a dogfight. A confession taken from the suspect in a more congenial environment is suppressed by the judge on the utterly remarkable ground that it doesn't have much probative value. As a lawyer, I find this one pretty hard to swallow. The "probative" (persuasive) value of a piece of evidence is for the jury to decide, not the judge. The judge also rules that McCoy cannot mention the defendant's blood-stained clothing. Why? "Fruit of the poisonous tree" -- a rule meaning that if the confession is tainted, then evidence discovered as a result of the confession is tainted, too, and the jury may not know about it.
Since no eyewitness to the shooting could identify the suspect, McCoy has only the gun to tie the suspect to the crime. But for the sake of the plot, the judge raises questions about the weapon's evidentiary value for a rather improbable reason. We are asked to believe that after the shooting, the killer, while still in Central Park, filed down the barrel to remove the unique characteristics of the rifling. In another highly improbable act, he then leaves the gun and the clips in a knapsack in Central Park, right under the nose of the police. To add to the improbabilities, neither I nor a firearms expert I consulted had ever heard of an instance in which the inside of a barrel was filed down. In fact, the expert thought it would be practically impossible to file off all the unique characteristics from one end of the barrel to the other. Nevertheless -- suspending disbelief here -- the filing of the barrel leaves McCoy with only a 50% certainty that the gun and recovered ammunition matched. That is certainly not evidence of guilt beyond a reasonable doubt.
So the prosecutors subpoena the gun manufacturer in Connecticut, seeking computerized data to tie the gun to the crime. At this point, we pretty much leave legal reality behind, although the story twists are certainly interesting. The gun maker, allegedly trying to protect trade secrets, moves to "quash" the subpoena (that means asking the judge to declare it void). In the belief that New York subpoenas are not honored out of state, the prosecution enters into a plea agreement with the shooter. He gets 25 years to life, concurrent time for each victim. McCoy is flat-out wrong on this one. Any New York prosecutor knows she can subpoena out-of-state witnesses under the criminal procedure law in New York and universal interstate compacts. The witness must be material -- that is, he or she must have something to say that will bear meaningfully on the case -- but the gun maker surely would have met that standard here.
Stung by the negative reaction to the plea deal, McCoy prosecutes the gun manufacturer for "depraved indifference" to human life. His proof: the company chose not to make its gun tamper-resistant, fearing lower sales. This prosecution calls to mind a recent federal civil case, Hamilton v. Accu-tek, et al., successfully brought in the Eastern District of New York by representatives of victims of violent crimes against gun manufacturers. The theory in that case was similar in part to the theory of McCoy's prosecution, namely, that gun manufacturers flooded the market in states with lax gun laws, and those weapons ended up in the hands of New York criminals. McCoy's case goes a bit further, charging that the gun maker refuse to spend a tiny bit of cash to make sure its weapons weren't so easily converted into fully automatic death machines.
Kudos to Law & Order for the provocative material and the effort to address the thorny question of how to deal with gun violence in America. But the prospects of convicting a gun manufacturer for a homicide committed with one of its weapons is dubious. Even McCoy's partner recognizes this, arguing that McCoy is trying to legislate gun control in the courts. In addition, the allegation that the manufacturer refused to make the gun tamper resistant is tough to buy. The same firearms expert advised me that conversions of automatic weapons from semi to fully automatic are rare and he has yet to encounter one. He also said a converted automatic weapon cannot be controlled or used effectively, contrary to the quick slaughter of fifteen victims in McCoy's case. Topping it all off, he told me there is no effective way for a manufacturer to make the weapon absolutely tamper resistant to prevent conversion in the future.
The episode ends with one final improbability -- a jury verdict of guilty against the gun manufacturer, which the court overturns immediately. Trial courts rarely overturn verdicts in criminal cases, and deficient prosecution cases are usually remedied by a dismissal of one or more counts at the end of the People's case.
As for me, the verdict is still in favor of Law & Order. It's hard to balance good drama with the sometimes tedious realities of legal practice. Despite overlooking some key legal points, Law & Order does a far better, more intelligent job of presenting The Real Thing than most law-related shows.
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