During the first half of the series, the one steadying influence throughout the constant cast changes that were happening every season was Steven Hill’s fine work as DA Adam Schiff. His job on the series, other than providing acerbic wit, seemed to be to try and make sure Ben Stone and Jack McCoy did their jobs without stepping on to many toes.
Schiff was based on Robert Morgenthau, the actual Manhattan District Attorney when the series began (and for almost the show’s entire run). And Schiff always seemed too subtle as to how he handled the crimes laid at his door. Generally, he seemed to have a better relationship with Ben Stone than he had with Jack McCoy, probably because Stone seemed far less inclined to make his life difficult. If anything, Ben sometimes seemed to marvel at Schiff’s approach towards the law. In ‘Night and Fog’, what seemed to be the mercy killing of a survivor of a concentration camp by her husband became even more complicated when it seemed likely that her husband had done because he had been a collaborator with the Nazi. When Poland wanted to extradite her husband to face trial for his crimes, Stone was conflicted. Schiff wasn’t: “A woman was killed in our jurisdiction.” Stone asked whether Poland: “wasn’t entitled to punish him for the greater evil.” Schiff’s response surprised even Stone: “Greater evil? Since when did you get so philosophical?” This approach was typical of Schiff; his duty was to justice and the State of New York. It was as simple as that.
Jack McCoy probably gave him far more ulcers. I’ve already listed Jack’s greatest offenses, so I won’t repeat them here. But it did give him a fair amount of agitation. That didn’t mean that Schiff wasn’t inclined to bend the law a little himself. When a teenager was murdered with marital arts weapons by a bully as his high school, and it became clear his father had been responsible for a lot of his training, Schiff went even further than McCoy was used to and had the father put on trial along with his son for depraved indifference homicide.
Such extensions of his office were rare. Relatively speaking, Schiff was a moderate. When the death penalty came back to New York in 1995, he was reluctant to initially use it for prosecution. And even when he did, there were certain limits to how far he was willing to go. In ‘Terminal’, a tour guide spread gunfire into a cruise ship for the purpose of trying to stop one of his bankers from cashing a check that would bounce. As a result, two people were killed. The governor wanted the case prosecuted under Murder One as a death penalty case and pressed McCoy to do so. Schiff didn’t think the case merited, and when the governor removed Schiff from the prosecution, Schiff went so far as to take the governor to court for overreach of his power. The judge ruled against his motion, but the ripple effect was present – as a result, the defense attorney entered this argument into evidence and the defendant was convicted of murder two and sentenced to life without parole.
Schiff didn’t always agree with McCoy’s methods of prosecution and would frequently come to verbal blows with him over the larger effect. In ‘DWB’, McCoy went against Schiff’s orders and tried to have an immunity agreement with a policeman who’d murdered a black motorist and covered up his crime. When the court ruled in favor of McCoy, Schiff was not happy and called it “a ridiculous decision. And (McCoy) was a party to it.” But by and large, Adam was willing to tolerate most of what Jack and his fellow ADAs did.
Steven Hill left the series in May of 2000. He was replaced by Nora Lewin (played by Academy Award winner Dianne Wiest). Lewin had been an ethics professor before being named to the DA’s office, and in many ways, her character was the most liberal DA the series ever had. Even more than Adam Schiff, she went out of her way to moderate the approach the DA’s office took. She was even more reluctant to use the death penalty than Schiff was, and agonized immensely when she had the decide whether to use it on a teenager being tried as an adult. During this period, McCoy tried some of his more aggressive cases – once going after a corporation that owned a fast-food company whose lax methods had led to the death of five children; once trying to go after attorneys who had been running a scam to make money on victims of whiplash. Lewin had a lot of trouble going along with many of his prosecutions, and was not afraid to challenge him. And she held strong to her ethics in a way that very few characters on Law and Order were willing to. On DR 1:102, ADA Serena Southerlyn (Elisabeth Rohm) entered a hostage negotiation with a man who killed two people and managed to get him to surrender by misrepresenting herself as a defense attorney. Serena was subsequently called before the Disciplinary Committee and Jack defended here. Nora was subpoenaed to testify for the prosecution because of her teachings on the subject. Despite her personal relationship, she didn’t flinch from saying that Serena had crossed the line and by the standards, merited disbarment.
In the fall of 2002, Lewin departed and was replaced by Arthur Branch, played by actor and former Senator Fred Dalton Thompson. Branch was a very strict conservative, almost to the point it even unnerved McCoy a little. He didn’t think electronic communications met the same standards of privacy that written ones did, he generally thought corporations were due far more legal protection than Schiff or Lewin did, he was adamantly in favor of the War on Terror at home and abroad (this would come up in more than a few prosecutions in the show’s later years) and he didn’t really believe in much when it came to the rights of the defense. In 2006, after the death penalty had been repealed in New York and one prisoner was still awaiting sentencing – and then killed two people – he tried to get the federal government to put the onus on the jury to sentence him to death anyway. Jack McCoy, the older got would become more and more rigid when it came to his prosecutions and sentencing, but even he would sometimes admit how uncomfortable he was when it came to following his boss’ directives.
The biggest change in the series came in 2008 when Jack McCoy became DA himself. Partly this was due to Thompson’s desire to seek the Republican nomination for the Presidency that year, but it must also be admit that it solved a major problem for the series’ writers. McCoy was always partnered with younger female ADA for thirteen years, and the older Waterston got, it was getting increasingly creepy seeing him was increasingly younger women as second chair. It must also be admitted that there was a certain relish seeing Jack, who twisted the bounds of his profession on a weekly basis, now have to deal with a younger DA doing exactly the same things he did to his bosses. Indeed, that gave much of the last seasons of the series more pleasure than we’d had one the show in a very long time.
I’m not going to go into detail with Mike Cutter (very well played by Linus Roache) and his approach to prosecuting. Suffice to say that being in charge may have given Jack a perspective that he was lacking before. He often went against Mike when he did so many of the things that he had done in previous cases. He stopped from trying to intervene in a medical procedure that would have done damage to a child. When Mike pointed out this was very close to a precedent Jack had sent, Jack stood firm and withdrew the motion, saying: “I was wrong then and you’re wrong now.” Mike also stood on a very different perspective than Jack on the death penalty, which caused them argue more than once. And when Mike ended up getting involved in an aggressive prosecution that got him sent before the disciplinary committee: Mike: “I got off easy. Jack: “Did you?” Indeed, he butted heads with Mike’s questioning of his authority nearly as much as Jack did to Adam Schiff’s a decade earlier.
That’s not to say Jack wasn’t willing to overstep his bounds from time to time. In the Season 19 episode ‘Rumble’, a brawl in Central Park which left three dead and eighteen injured became a mess for McCoy to prosecute. So he chose to have several of the assailants charged under a domestic terrorism statute. This alarmed even the overeager Cutter, and his heart really wasn’t in the prosecution. After four days of deliberation, in which two jurors were caught in a brawl, he would do something no ADA had ever told his boss. “Are you satisfied now? The whole city is on edge! What if the jury hangs? Or worse, what if they do acquit? You’re going to look like a laughing stock.” When McCoy something had to be done, Mike actually threw back his suspension of habeas corpus that I mentioned earlier back in his face, adding: “Then you had Adam Schiff backing your play. Now you’re out their on your own. Have the decency to realize when you’re doing more harm than good!” Jack actually listened and allowed Mike to cut a series of deals.
And to be clear Jack was more willing to swing for the fences in his final years. He would indict the half the Bush administration for conspiracy to commit murder in a torture based death in the twentieth season premiere and in the series finale, when the head of the teachers union made it harder for his Das to get information, he threatened to indict him with hindering prosecutions and then to resign his office and ‘represent the families of the victims in a class action against you.” (It may just have been the series finale, but that was angriest I ever remember seeing his character get) But he learned moderation. I’m not sure it was a lesson he ever passed down to his prosecutors.
When it comes right down to it, what lessons when it came to criminal prosecution did Dick Wolf and his writers pass down to viewers for twenty years? Was that it went it came to justice anything went? That even if you went beyond the boundaries of your profession, it was all right because the consequences were small to those who did it? That the law was to be used as a sword to punish the guilty rather than as a shield to administer justice? That does seem to be the lesson that we now know the criminal justice system teaches. And we all know that television more than often holds a mirror up to the nature.
This is a more subtle lesson than all the police dramas that show white cops beating up on potential criminals. But considering everything we’ve learned about prosecution over the last few years in particular, it seems pretty clear that Law and Order was more than willing to teach that to generations of viewers. And considering that the series has now been in syndication even longer the original series was on the air, it’s going to be a real difficult lesson to unlearn.
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