Among the many, many differences between Ben Stone and Jack McCoy was how both looked at the death penalty. When Stone was in the DAs office, New York didn’t have it, but in ‘Vengeance’ in the middle of trying to convict a serial killer with a tricky lawyer, the Connecticut DA – where one of the victims came from – tried to persuade Stone to allow that state prosecute because they had the death penalty. While the argument for changing jurisdiction was pretty shaky, one of the major arguments Stone had for not going along was because he believed the death penalty more an act of revenge than of punishment. No one could say the same of Jack McCoy who from the moment it was returned to law in 1995, began using it at the center of most, if not all, of his prosecutions, either as a threat for a plea or just as a way to exact justice. The only time he ever seemed to regret it was when he witnessed an execution at the end of Season 6, which shook him to his core… for a few months.
Ben Stone didn’t always play fair with the people he prosecuted, but more or less he tried to stay on the straight and narrow even with the vilest of defendants. Jack McCoy seemed to have no problem twisting and contorting the law so he could get the bad guy – this involved only accepting a plea involving a woman who murdered three of her own children if she would accept sterilization as part of it, using ‘larceny by extortion’ to convict a city councilman who had engaged in sexual harassment, and prosecuting a fellow attorney – and a close personal friend – as accessory to murder for bribing a juror in a trial of a mob boss he represented. And that was just in Sam Waterston’s first season.
Jack was absolutely unrelenting in his approach to any defendant. Stone would occasionally have sympathy for them; McCoy never seemed to allow any defendant – no matter how sympathetic – get away with murder – no matter how reprehensible the victim. And no matter how legitimate the defense might be, McCoy was never willing to hear it. During the early seasons of the series, the show would have a recurring character as court psychiatrist – Elizabeth Olivet, memorably played by Carolyn McCormick. Oliver would listen to the defendant or hear a psychological defense and try to present as realistic portrayal of how much it would be a factor at trial. For the most part, Ben was willing to listen and more often than not, take Olivet’s judgment as a mitigating factor. McCoy has less patience, and it’s telling after a few seasons, Olivet would be phased out for Dr. Emil Skoda (J.K. Simmons) a therapist who in his presentation could be a lot harsher in his judgment of the criminals. (In the latter half of the series run, Olivet and Skoda would be used more interchangeably, but as a rule McCoy seemed to prefer Skoda’s arguments to Olivet’s, more often not letting her testify when she presented a picture that disagreed with the prosecution.)
His harsh approach to prosecution would be difficult to defend but often meet the standards of the procedural. What was far harder to defend was Jack’s very tenuous way of how he played with the defense. On more than one occasion, he withheld vital evidence from the prosecution and there was a lot of evidence that he’d been doing it before. In ‘Trophy’, a serial killer who was fitting the pattern of a man McCoy had convicted five years ago was arrested – and confessed to the other two murders. Going back over the case, McCoy learned that his second chair – and former lover – Diana Hawthorne had withheld exculpatory evidence under the understanding that’s what he wanted. He then arranged to have his current lover – Claire Kincaid, who also knew his habits of withholding evidence – to prosecute Hawthorne. At no time during the entire trial did he admit to any wrong doing.
Two years, in ‘Under the Influence’, after a drunk driver killed three people, McCoy did something far more reprehensible. He engaged in a malicious prosecution – in conjunction with a judge with political aspirations – to have the defendant prosecuted for Murder One and the death penalty. The understanding – which McCoy never admitted – was that this was some kind of vengeance for the death of Claire, who had died at the end of Season 6 in a hit and run for a drunk driver who escaped with probation. McCoy withheld evidence that could have proved that their was no malice from the defense, despite the constant berating of co-council Jamie Ross. At the last minute, he allowed a witness who had exculpatory testimony who he’d not bother to make available to the defense, which angered the judge so much he was forced to face the disciplinary committee. He managed to escape unharmed.
And McCoy’s harsh tactics didn’t end after you served your debt to society. In fact, given his behavior in ‘Mad Dog’, he believed prison was for punishment, not rehabilitation. When a serial rapist came up for parole, McCoy spoke against his release. After he failed and the rapist was paroled, a murder took place in the neighborhood that fit his profile. McCoy focused the entire weight of the Das office in putting him back in prison, though there was insufficient evidence that he was even the culprit. He harassed the parole board; he made it known in the neighborhood and at his place of employment that they had a known sex offender. When he tried to move, he made sure that other states knew of it and wouldn’t take him. All while keeping the suspect under twenty-four hour surveillance, actions that even made the detectives a little squeamish. (This takes a lot considering what Lennie Briscoe saw over the years.) The episode ended with the parolee being murdered by his own daughter, after he seemed to give in to his impulse. All McCoy would say at the end was: “This isn’t what I wanted.” Maybe not, but he sort of set it up.
I could go on and on with all of McCoy’s contortions of the law in how he went after the people who he thought deserved punishment – from trying to send a ten year old murderer to be institutionalized to sending the public defender of a serial killer to prison as an accomplice to murder for refusing to waive privilege and telling the DA’s office where the rest of his victims’ bodies were. But perhaps the most appalling comparison would come with a case involving the Russian Mob. I already mentioned how Stone dealt with the mob reacted by the murder of a witness. The mob was far more overt in their actions in ‘Refuge’ – the witness, a nine year old boy, had his throat cut, his mother and a fellow ADA were murdered, and the mob had intimidated witnesses and were involved in money laundering. His reaction was extreme even by his own standards. Despite the orders of DA Adam Schiff, he suspended habeas corpus and had the mob arrested without being charged or allowed to see their lawyers. When the judge overruled him, he appealed and kept appealing to the point he was about to go to the Supreme Court and stopped only when Schiff held his job in front of him.
Law and Order would often go out of its way to portray most of the criminals on the series as utterly reprehensible beings that deserved no mercy. But even if you’re willing to allow that, it doesn’t change the fact that Jack McCoy spent the better past of thirteen seasons using the New York DA’s office as a sword to punish not only the criminals, but those who just made his life difficult to the full extent of the law. It was judicial activism, to be sure, but somehow I don’t think it’s the kind that so many on the right would complain about. You have to ask the question: what kind of DA would allow him and his colleagues to get away with these kinds of shenanigans? In the final part of my essay, I’m going to discuss those very district attorneys, their approaches to the law, and how that may have affected the vision how justice should be meted out.
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