“The Night Of” and Prosecutorial Ethics

By Michael Bryan

TheNightOf_Weiss-1024x576Like so many others, I watched the limited HBO series “The Night Of” and loved every minute of it… except the last 30 or so. I was reduced to screaming at the television for those minutes. Not only was the suspension of disbelief destroyed for me, but a major opportunity to engage a serious societal issue regarding the justice system was lost. It is through entertainment such as this show that much of the public learns and thinks about the difficult issues raised by our system of justice, it is therefore important that it be done responsibly and accurately.

The show was lovely over-all — compelling characters, great performances, wonderful direction and writing, great cinematography — but it seemed to lack a reasonably competent legal advisor. I know that legal accuracy is generally not what people tune in to watch a legal drama for, but there was one major legal and ethical lapse that deserved to be depicted accurately and highlighted in the plot itself — and it was not.

There are major plot spoilers in the remainder of this post, so don’t click through if you haven’t finished watching…

In the last episode, Detective Box discovered evidence that Ray Halle, the money manager who initially threw suspicion on Andrea’s step-father, had likely stolen $300K from the victim, had met and argued with her that night, had followed her, had no alibi during the murder, and was caught on camera possibly disposing of the murder weapon.

There is a very strong argument to be made that all this evidence collected by Box, and shared with the prosecutor, was exculpatory Brady material. By not disclosing that information to the defense, regardless of the late stage of the trial, D.A. Weiss made a major legal blunder (which almost certainly would have vacated any conviction) and, perhaps even more importantly, a terrible ethical choice.

The difficulties of assigning criminal responsibility in our system of justice has rightly come under scrutiny in recent years. The many factual innocence exonerations, the flaws in the judgement and ethics of police and prosecutors highlighted by Netflix’s “The Making of a Murderer”, and the cost in human lives and dignity of prejudice by our police highlighted by the Black Lives Matter movement, have rightly started a vital conversation about the processes of law enforcement in this country. “The Night Of” had the opportunity to raise an important issue of prosecutorial ethics, and instead threw it away. Worse, it left an impression that this is how the system should work, when that is far from the truth.

D.A. Weiss should have disclosed Box’s new evidence regarding Ray Halle, even though the trial was nearly over. As a former prosecutor, I know that not only is it deeply unethical to withhold possibly exculpatory evidence, even if the trail were over and done with and the defendant convicted, but that any conviction that might be achieved would be imperiled were a prosecutor not disclose such evidence. Instead of highlighting this important legal and ethical point, Weiss merely tells Box that she still has more on Naz than he has presented on Halle, and therefore she intends to stay the course!

That is not her call to make! Constitutionally, it is the jury who gets to decide how that evidence affects Naz’s fate. That is the reason behind the Brady rule. Weiss clearly knows that she has been deeply unfair to Naz, and that the new evidence makes Naz’s guilt much less likely, as she later declines to try him again when the jury hangs, and instead decides to pursue a case against Halle.

Prosecuting attorneys have been justly disbarred for ethical lapses far less egregious than the one Weiss made, yet “The Night Of” allows Weiss to slip on her sneakers and waltz out of the courtroom, presumably to blithely violate the constitutional rights of new criminal defendants. A great opportunity to educate the public about the ethical responsibility of prosecutors was missed. The public should know and reflect upon the fact that it is the ethical duty of prosecutors not merely to convict those who are charged with crimes, but to seek justice, even if that means weakening their advantage in the courtroom.

Too often, prosecutors are judged by the public solely on their conviction rate, and that gives prosecutors a perverse incentive to take the sort of ethical short-cut that Weiss took here. If the public better understood the ethical and legal obligations of prosecutors, they could properly value and demand ethical and fair behavior by their representatives in court.

A good chunk of the nation was watching this engaging story, and this show has entered into our national conversation about the limits and nature of our justice system, but the writers failed to take the opportunity to demonstrate through Weiss how a prosecutor should, indeed must, behave. Instead, they gave us a prosecutor so focused on obtaining a guilty verdict at any cost that justice had to hinge upon six hung jurors. Weiss’s character flaw still could have been an interesting point of discussion had her terrible lapse even been acknowledged in the story; instead a vital addition to the national conversation was simply ignored.

“The Night Of” could have been a great story that engaged a vital issue in our system of justice, instead it opted to merely be an interesting tale.

11 Responses to “The Night Of” and Prosecutorial Ethics

  1. I’m not in the lawyer field, but I saw this omission by the DA and also screamed at the TV to tell the defense the new evidence.
    The fact that the DA sorta stopped pushing for Naz’ conviction… not cross examining very hard and later saying they would try and get the other guy got her off the hook with me, but it was still improper.
    My liberal ( so she thinks ) girlfriend did not see anything wrong with the way it all went down. “She did the right thing and that’s all that matters” was her comment. …Oh, and: “Stop yelling at the TV”.

  2. Concerned Citizen

    Sen. Kavanagh and your cronies driving “Arizona Prison State:, need to read this scathing Harvard Report on Maricopa County and Arizona’s injustice system. Shameful. Who has any credibility among your power group that drives injustice? between 2010 and 2015. Part I of the report, titled Too Broken to Fix: An In-depth Look at America’s Outlier Death Penalty Counties, examined 10 years of court opinions and records from eight of these 16 “outlier counties,” including Caddo Parish (LA), Clark (NV), Duval (FL), Harris (TX), Maricopa (AZ), Mobile (AL), Kern (CA) and Riverside (CA). The report also analyzed all of the new death sentences handed down in these counties since 2010.

    Some of these findings will be featured in the New York Times Magazine August 28th edition by Emily Bazelon, which can be previewed here. …

    • Concerned Citizen

      Prosecutor ethics in Arizona? Really? Maricopa County prosecutors and justice system, ranked at the top of the WORST counties in the nation. Sen. Kavanagh, what are you doing reform the broken criminal justice system and save taxpayers hundreds of millions of dollars, rather than mass incarcerating Arizona’s people for decades, under Arizona’s draconian mandatory minimum sentencing laws that line the pockets of the prison profiteers?

      “TO BROKEN TO FIX: THE OUTLIER COUNTIES ACROSS AMERICA”

      http://fairpunishment.org/wp-content/uploads/2016/08/FPP-TooBroken.pdf

      “When we drill down to the county level, the large-scale abandonment of the death penalty in the country becomes even more apparent. Of the 3,143 county or county equivalents in the United States, only 16—or one half of one percent—imposed ve or more death sentences between 2010 and 2015.5 Six of those coun es are in Alabama (Je erson and Mobile) and Florida (Duval, Hillsborough, Miami-Dade and Pinellas)—the only two states that currently permit non-unanimous death verdicts.6 Of the remaining 10 coun es, ve are located in highly-populated Southern California (Kern, Los Angeles, Orange, Riverside, and San Bernardino). The others include Caddo (LA), Clark (NV), Dallas (TX), Harris (TX) and Maricopa (AZ). As Jus ce Stephen Breyer noted in his 2015 dissent in Glossip v. Gross, “the number of ac ve death penalty coun es is small and ge ng smaller.”7

  3. Concerned Citizen

    Excellent article! Scathing report on Maricopa County’s prosecutor and justice system. Maricopa County’s Record on Death-Penalty Prosecutions Blasted in Harvard Report | Phoenix New Times

    “Maricopa County’s death-penalty system is plagued by “overzealous” prosecutors and creates a high number of questionable death-penalty cases, according to a new Harvard Law School report.

    “Too Broken to Fix: Part I: An In-Depth Look at America’s Outlier Death Penalty Counties,” by the school’s Fair Punishment Project, identifies Maricopa as one of 16 “outliers” among the nation’s 3,143 counties or “county equivalents,” for having sentenced five or more defendants to death during the period 2010-2015.”

    http://www.phoenixnewtimes.com/news/harvard-death-penalty-study-rips-maricopa-county-prosecutors-8563756

  4. Sen. John Kavanagh

    “George Will’s mini-me” is a cheap anti-intellectual ad hominem attack. It cheapens you and the blog. Can’t you rise above that?

    • AZ BlueMeanie

      George Will is a pseudo intellectual and nothing more than a partisan hack. So is Robert Robb. Neither are entitled to the intellectual status assigned to them by conservatives. Also, I assume that you will be on stage with your buddies Joe Arpaio and Russell Pierce standing alongside Donald Trump on Wednesday, the point of the post.

    • Concerned Citizen

      Maricopa County’s Record on Death-Penalty Prosecutions Blasted in Harvard Report | Phoenix New Times

      Citing media coverage, including stories from New Times, the report notes that starting in 2004, Thomas sought capital cases at twice the rate of his predecessor, Rick Romley — thus crippling the county’s public-defender system and leaving a dozen murder defendants without lawyers. While the county has backed off its zeal for the death penalty since 2010, Montgomery’s office retains three deputies whose strong interest in capital cases appears to color their conduct in court.

      http://www.phoenixnewtimes.com/news/harvard-death-penalty-study-rips-maricopa-county-prosecutors-8563756

    • Concerned Citizen

      From the above links on Maricopa County’s prosecutors: “They don’t have the temperament required to prosecute a jaywalking citation, and what they’re being entrusted with is the death penalty.” — Harvard University researcher Robert Smith