How Accurate Was The Night Of? Two Legal Experts Explain

After Netflix’s Stranger Things, there was no show more talked about this summer than HBO’s murder mystery The Night Of. The eight-episode limited series came to an end Sunday night, with audiences mixed on how the series wrapped up its lose threads, and the series as a whole. On this week’s Vulture TV Podcast, we debate how good the show was, and where we think it went wrong. Plus, we’re joined by two legal experts — former criminal prosecutor Laura Gwinn and Howard Wasserman, professor of law at Florida International University — for their perspective on what the show nailed and the inaccuracies that drove them crazy. (Helen leaning on the witness stand is a big no-no.) Listen to the full discussion below, and read on for an edited transcript of our conversation.

Gazelle Emami: What was it like watching this show for you?
Howard Wasserman: I will start with full disclosure that I generally dislike and don’t watch legal dramas, because I can’t get past how badly they’re presenting the criminal-justice system. So I went into it from the beginning with that admitted bias.

Laura Gwinn: Like Howard, I don’t watch regular programming criminal-justice shows, like Law & Order, because it makes me crazy that they can solve a case in an hour. But a series like this is presented differently and I actually enjoyed it. There were some things that made me crazy in terms of how they presented evidence and things they did in the courtroom, but otherwise I enjoyed it.

Jen Chaney: This question’s for both of you, but Laura, you mentioned some things that made you crazy about The Night Of. Can you give us a couple of examples?
LG: [Laughs.] One thing that really made me crazy was when Helen gives her opening statement, she has as much as emotion and inflection as if she’s going to Starbucks and ordering her morning latte. If she doesn’t care about the victim, which is how it came across to me, then why should the jury care about the victim? This is your chance to sell your case to the jury. And I just thought she did a very poor job. And whether that was directing or script or just how she thought it should go, I don’t know.

The other thing that really drove me nuts was many times when she was questioning a witness, she would be very casually leaning on the edge of the witness box. And there are few places in our society anymore that are formal, but a courtroom is formal. And doing that takes away a lot of the formality. Most judges are not going to let you get that close to a witness. When she’s questioning Naz, who, as the prosecutor, she’s trying to sell to the jury as a violent person and she’s that close to him, what message is she sending to the jury? She’s certainly not sending “He’s a violent person,” because “I’m not afraid of him. Look how close I’m willing to get to him.” Being in a courtroom, part of it is theatrics. Part of it is body language. Part of it is what juries see, not just what they hear.

HW: The one thing I liked about the show quite a bit is that it presented what I think is a real-life situation — you saw a whole bunch of events that when we look back on them can be ambiguous. They can be spun by either side to either suggest innocent or innocuous behavior, or guilty behavior. The thing that just drove me nuts was — and this is typical of TV — how the question and answer of the witnesses went where the lawyers are putting words in their mouth and the lawyers are giving speeches rather than letting the witnesses actually answer. There was a whole bunch of really strange evidence that was presented that would never come in in a real case.

GE: Could you give any examples of that?
HW: The one that really jumped out at me was the fights he was in at school would not come in under any rules of evidence I can imagine, because there’s a general prohibition on using either character evidence — he’s a violent person or he’s acted violently in the past — to get the jury to believe that he acted violently at the time in question. And at least with some of that, like pushing the kid down the stairs when he was in high school, none of that should have come in. Some of the other stuff was interesting, and might make nice law-school hypothetical exam question-type things. But some of them were just flat-out wrong.

LG: I totally agree with you, Howard. My daughter and I watched it last night and that was one point I brought up with her was there’s no way you get that propensity evidence in, and especially the pushing down the steps was, what, five or six years before? When he was a child. And then the other piece of evidence was they put on his friend Amir to talk about his drug dealing. And my daughter said to me, “Well, why isn’t that relevant, because he had amphetamines in his system?” And so we had a discussion about how it’s not relevant. Whether he sold drugs or not has nothing to do with whether or not he murdered. The fact that he had amphetamines in his system speaks for itself and has nothing to do with did he deal drugs? or did he do bad things? Those were two things that, on appeal, the case would get reversed for the admission of those two pieces of evidence, I think.

HW: And both sides did it because the funeral director, the hearse driver, the stuff about him abusing his wife and having restraining orders against him, same thing. You can’t do it with a witness, either.

Matt Zoller Seitz: Can I ask a general question about the investigation of the case? It bothered me as a viewer that they got fairly deep into the trial before they were asking questions like, Who stands to benefit from Andrea’s murder? Who owns the house? Who has a claim on the house? Things of that nature. And also at the very end, the very last few minutes of the last episode we see Box really doing due diligence going over those phone records. I was asking myself, Isn’t that something he should have done earlier? A lot of times these people look like they either don’t know what they’re doing or they are so distracted that they can’t do their job. And I’m wondering, is that the point of showing that? Is that realistic? What do you make of all this, in terms of the presentation of it?

GE: And just to add one thing along those lines that bothered me was how Box in the beginning of the finale is looking over the tapes again and notices the victim looking over her shoulder — why wasn’t that noticed by the defense, and why did these kinds of details come into play in the eleventh hour?
LG: Well, you know, hindsight’s 20/20. People like Box — I think one thing that they didn’t show was that this surely was not the only murder case that he was working on. These detectives are — and I’m not making excuses for them — constrained by how much time they have and what resources they have to put into an investigation. And certainly murder investigations are high priority. Most of the detectives that I worked with during my career were very dedicated and were looking to make sure that the person that they arrested was the right person. But nevertheless, they looked at this case in the series as, Look, we’ve got DNA, we’ve got eyewitnesses to put him on the scene, we’ve got what appears to be the murder weapon. I think they said they had semen. They had a couple of other things. And so to them it looked like, you know, This is an open and shut case. What more do we really need to do? I need to move on to other cases that require my attention.

HW: From the defense’s standpoint the timeline was presented really badly. All of the investigative work that they were doing with finding out the details about the house and the stepfather and all that, was already all the way into the trial. I know that Stone and Chandra were presented as sort of being low-rent, inexperienced lawyers, but basic competency is you couldn’t even start trial unless you have dug into all that, just because you wouldn’t even know what questions to ask. So you’re absolutely right it made no sense that he’s first looking at the picture midway through trial and saying, Gee, that house looks really expensive.

The thing I thought was interesting last night was the show made a big deal out of the prosecutor’s decision to continue with the trial even after they uncovered this evidence about the financial adviser. The show depicts the prosecutor making the decision to continue prosecuting Naz and it presents that as being the ethically questionable decision, and I actually don’t think that was the case. I think that decision was justified. There really was more evidence against Naz than there was against the other guy, who really, the evidence against him was about as strong as it was against the stepfather or against Duane Reade. The bigger ethical problem that the show glosses over was once they found the evidence suggesting any link to the financial adviser ex-boyfriend, they were under an obligation to disclose that to the defense. And the failure to do that, that’s the big legal, ethical violation by the prosecutor. The show really underplayed that.

LG: I agree with you. I was very disturbed by the fact that when she got that information that she did not give it to the defense. Initially I thought, Well, when does she have to give it? Because I thought the trial was over. I didn’t realize initially that they had not yet given their closings. Once I realized they hadn’t even given their closings, I was more disturbed by the fact that she didn’t. And I think ultimately you could see that she was disturbed, because during her closing she seems to falter. And then when Box gets up and walks out you can see that she is rattled. And I think it was because she realizes that Box was disgusted with her for standing up and making this argument when she knew darn well that there was another good suspect. And I think at that point she almost looks within herself and realizes that she can’t really get up there and say that. The reason why she decides they’re not going to re-prosecute is because she has this information and maybe she knows in her heart. Sometimes you just feel it, that it’s the wrong person. Even with the evidence there. I don’t know how to explain it.

JC: I have a procedural question. When the jury comes back and they’re split, it’s a hung jury, and the judge reluctantly says, “Okay, this is gonna be a mistrial,” and turns to the prosecution and says, “Are you gonna retry this case?” and Helen Weiss makes the decision at that moment, as you said, because something is telling her maybe that this is the wrong thing to do to keep trying Naz. Would they just be able to make that decision in that moment, in the courtroom? It seemed to me that that would have been some discussion and that would have maybe been resolved at a later time.
LG: Very unlikely. There were two things that happened. The judge said to the foreman, “So what was the count?” I’ve never seen that in a courtroom. The judge doesn’t want to know the count. Nobody wants to know the count — well, the prosecutor and the defense want to know the count, but as a matter of public record I’ve never heard a judge ask that. But to go back to your question, no. On a high-profile case like that, usually the judge wouldn’t ask at that time, “Are you gonna retry it?” Because he knows that she’s got to go back and talk with the higher-ups, and they’re going to conference the case. They’re going to look at what else could be done, should anything else be done. They would talk about the other suspects and how much investigative work should we do in terms of those other suspects: What should we do? There would be a period of time. The judge might say, “Okay, let me know in a week, two weeks, a month.” Or he might say, “How much time do you need?” She seemed to be a pretty senior attorney, but again, I think in a high-profile case like this was, she would not make that decision on her own, but would make the decision in concert with her supervisors.

HW: The judge also basically tried to bully the jury into going back into deliberations, which he can’t do. The judge is …

LG: That happens all that time!

HW: But in that blatant, “I don’t accept that you’re deadlocked.” The judge is supposed to prod them, remind them of their obligation to discuss and deliberate and to get a sense of where they are. So the judge can prod them, but that seemed to cross the line a little bit.

LG: It was more than what most judges do, but the truth is they do kind of bully them into… They give what’s called an Allen charge and they say, “You’ve got to go back. You guys have to listen to each other. Change your mind if you think the other…” It is a little bit of a form of bullying. You know, you have cases where a jury’s out for let’s say ten hours over two days and it was a week-long trial and they come in and they look all worn down and they’re like, “We can’t reach a decision.” And then the judge tells them, “No, you’ve got to go back” and reads them the Allen charge, and an hour later they come out and they have a verdict and it’s like, Whoa, it’s a miracle! To some extent it is a little bit of a form of bullying where you’re basically saying to the jury, “You’re not going anywhere until you make a decision.”

GE: To go back just a little bit earlier in the finale, we see Chandra put Naz on the stand. It’s clear we’re supposed to think this is a terrible decision. Under any circumstances in a case like this, would it have made sense to put him on the stand? Was that a completely crazy thought that she had? How often does this actually happen?
LG: Hardly ever. Quite frankly, most of the time they’re guilty. And the defense attorney’s not gonna put him on and let the prosecutor have at him, especially if he’s got prior convictions or other stuff in his background. On the other hand, there were a lot of times as a prosecutor where you look at the jury, and if the defense is saying somebody else did it, you think for the jury to believe that maybe somebody else did it, they want to hear the defendant get up there and say, “I didn’t do it,” because then they can plausibly believe that well, maybe somebody else did. And the judge is gonna instruct the jury, “The fact that the defendant did not testify cannot be considered by you. You cannot hold it against him or consider it in any other way.” But the truth is we’re all human beings. Juries try to abide by the instructions, but I think most people would find it very hard that if you’re innocent of a murder, that you’ve been wrongfully accused, not to have that in the back of their mind. Why didn’t he get up and say that he didn’t do it?

HW: One of the things that was interesting was when John and Chandra are debating whether or not to have him testify, John makes the argument that if he takes the stand, the jury is going to demand that he prove his innocence. So they’re gonna be inherently suspicious of his testimony, whereas if he doesn’t take the stand, he’s cloaked by the presumption of innocence. That was the view that John put forward. Whereas I think the more common view is what Laura just described, that if you really are innocent, why aren’t you getting up and testifying and actually explaining your side of the story? Two very different perspectives on why the accused should or should not testify. I didn’t think it was a bad decision, because again, what you had in the case were a lot of facts that were ambiguous that the defendant could explain. Like why he let her get in the car and why he rushed out and why he asked the question that he did. I think the problem was that Chandra left too much of that to be gotten into on cross-examination, where the prosecutor could wear him down, rather than presenting herself the good and the bad from his story and trying to make the best version of it for the jury. So I don’t think the decision was terrible. It was really poorly executed.

GE: Speaking of that, a lot of people on Twitter have been wondering why the defense didn’t do certain things. One of the questions that came up a lot was the fact that Naz wasn’t covered in blood that night, and it didn’t come up in the trial. Did it seem very unusual that the defense wouldn’t bring that up?
LG: I would hammer that if I was a defense attorney. That was the first thing I noticed when I was watching it. It seems like such an open and shut case, but the room looks like a Jackson Pollock painting it’s got so much blood everywhere. And he’s got no blood on him, and the inhaler has no blood. I thought those were very, very glaring reasonable doubt pieces of evidence that should have been hammered by the defense.

GE: Is there anything that you think the show either got really right or really wrong, or anything else that sticks out to you?
LG: One of the things that I liked about the show was the way it showed the coziness, the insularity in some ways, of the criminal-justice system. If you think about [how] the judges would speak to Stone and they would called him “John,” and in particular the judge who did the arraignment said, “John, is it a relative, or was it right place, right time?” And it shows how well these people know each other. That’s very true in the criminal-justice system. It’s a small community. There are prosecutors and there are people who do criminal-defense work. You don’t too often get an Allison Crowe. You don’t too often get somebody like that defending these cases. And that’s something people don’t really realize, I think. Remember when John goes in and sees Helen she says, “How’s the foot? How is your son doing?” These people know each other. I thought that was a good portrayal of how things work.

HW: I really liked the Rikers Island stuff, because I think it really drove home the problem of pretrial detention and the effect that that has on the individuals who go in there where it is essentially prison even though they haven’t been convicted of anything yet and they are still innocent in the eyes of the law. And the effect that that has on them and just on their ability to defend themselves and to help with their own defense and to be accessible to their lawyers, and to have their lawyers be able to be in constant contact with them. That is really something we’re seeing discussed more and more. Rikers is an extreme example of that. The thing that I did not like, and that sours me a little on the show, is the stuff with Chandra and the depiction of women lawyers generally. It fell into those really bad traps of depiction of women professionals and the male professional always being the one to ride to the rescue.

Tune in to the Vulture TV Podcast, produced by the Slate Group’s Panoply, every Tuesday, on iTunes or SoundCloud. And please send us your burning TV questions! Tweet us @Vulture, email, or leave us a voice-mail at 646-504-7673.

What The Night Of Got Right and Wrong