Within a few minutes of starting the HBO mini-series The Night Of, any experienced television viewer knows that they are embarking on a crime procedural. The show’s credit sequence alone abounds with elements of the genre: the darkened color palette, the urban setting, the familiar flashes of police tape and dead bodies on morgue tables.1 Some reviewers have half-heartedly attempted to distinguish The Night Of from that genre, implying that a great show could never be a mere procedural. Even one of the show’s creators, Steven Zaillian, told the Los Angeles Times, “I don’t think of it as a procedural. I think of it as a character study—a study of many characters, really.”
Why this embarrassment about the procedural? Far from being hackwork, the legal procedural is one of the most robust genres of our time. Its lineage dates back to plays such as Jerome Lawrence and Robert Edwin Lee’s Inherit the Wind (1955), films such as Sidney Lumet’s Twelve Angry Men (1957), and novels such as Harper Lee’s To Kill A Mockingbird (1960). All of these works—The Night Of included—attempt to educate Americans about the often obscure protocols the justice system. The genre has majorly influenced the way that Americans understand their criminal rights.
The procedural emerged from the detective stories of the nineteenth century and the hard-boiled crime fiction of the mid-twentieth.2 Today, the genre can be roughly subdivided into two categories: legal and police procedurals. While police procedurals have an investigative focus, legal procedurals are primarily concerned with the execution of justice.3 Legal procedurals are notable for their attention—accurate or inaccurate—to the minutiae of criminal procedure.
Legal procedurals gained popularity in the mid-twentieth century alongside a host of changes to criminal rights law. These changes helped to establish a standard of civil rights for the accused that had been previously ignored.4 Since then, procedurals have often adopted a didactic tone: they not only represent one character’s passage through the criminal justice system; they also (implicitly) instruct the viewer how to act in a similar situation. When someone refuses the right to counsel in Law and Order, and then incriminates herself, we learn the importance of insisting on this right. When the detectives in The Wire maneuver desperately to get arrest warrants, we learn about the conditions of a legal search. The Miranda rights—a declaration that communicates the results of several 1960s criminal rights cases and must be read at every arrest—are so prevalent on primetime television that most people can recite them from memory based not on any formal study of criminal law, but on their TV viewing practices.
The Night Of underscores this pedagogical drive from the opening scene, where we find Naz diligently taking notes in a college physics class. Both the district attorney and Naz’s defense attorneys see his “college student” image as the factor most likely to lead to his exoneration. In prison, Naz survives largely thanks to the interventions of fellow inmate Freddy, who takes him under his wing because he admires Naz’s school smarts. In this and other interactions at Rikers, Naz’s education is contrasted with the backgrounds of black inmates there. That narrative choice may be a commentary on the foreclosure of educational opportunities to black men, but it sometimes reads problematically as a vindication of the imprisonment of those with no upward mobility.
Despite Naz’s advantages when it comes to formal education, however, he is deeply naive in another arena: knowledge about his own civil rights. His naiveté is painfully apparent by the end of the first episode, by which time he has fled a crime scene, stolen a murder weapon, and resisted arrest. Towards the end of the miniseries’ run, Vulture published an article entitled “All the Dumb Things Naz Does in The Night Of (So Far).” These mistakes include actions such as “put the murder weapon in your jacket pocket,” “agree to DNA testing,” and “talk to the cop!”
The authors of that article, E. Alex Jung and Dee Lockett, write:
But scream all you want, dear viewer, because our naive protagonist has apparently never watched an episode of Law & Order, Criminal Minds, The Wire, or, for God’s sake, Bones in his entire existence. He’s a freshly hatched chick, oblivious to the most basic rules of conduct after you’ve been arrested for a crime.
The idea that the protagonist of this HBO show should have watched another HBO show to learn about his criminal rights might sound absurd. But it’s a testament to how conditioned we are to believe that legal procedurals teach us how to behave. The first episode’s dramatic irony assumes that viewers, having watched the aforementioned shows, will have already learned what Naz apparently has not—and will therefore know that he is doing something he will later regret.
Within the show, the unlikely voice of this collective knowledge is John Stone, the no-fee-til-you’re-free lawyer who squelches around with his feet wrapped in Saran wrap to soothe his eczema. (The show makes a big deal about the Saran wrap.) Other characters doubt his abilities, but Stone becomes Naz’s most knowledgeable advocate, teaching Naz about prison politics, DA double-dealing, and his criminal rights. When he first finds Naz in the holding cell, Stone says, “I want to tell you something and it’s the most important thing you’ll ever hear in your entire life. Don’t talk to anybody anymore. Shut it.” Maybe Naz has heard of the Fifth Amendment before, but he mistakenly believes that his conviction in his own innocence means he should cooperate with the police as fully as possible. Stone protects Naz by transforming standardized, abstracted criminal rights into an individualized imperative.
Conversely, Stone’s nemesis, Detective Dennis Box, manipulates Naz by pretending to be clueless about the system and the crime. In interrogation, Box asks Naz, “What am I not seeing? Explain to me what I’m not understanding.” He pretends that the criminal justice system is actually all about knowledge-sharing—that the more knowledge is shared, the closer we can get to the truth—and, in doing so, fools Naz into spilling more evidence. For the viewer, the scene has a paradoxical effect. It underscores the uneven distribution of knowledge in the justice system, but it also implies that we, as “educated” viewers of the genre, have the same knowledge that Box does. We congratulate ourselves that we would do better than Naz because we watch The Good Wife. Turns out those binge sessions served a purpose after all.
Does the fantasy that our system works make us better citizens or worse?
In addition to this self-reflexivity about genre, something else sets The Night Of apart from conventional procedurals: it shows Naz’s experiences in prison while awaiting trial. Episodic procedurals such as Law & Order often eliminate this period, instead moving directly from the police station to the courtroom with no acknowledgement of the passage of time. When the delay is acknowledged, it is only from the police or lawyer perspectives, as they try to round out the case for the prosecution or defense. Legal procedurals without a police element usually begin just a few days before the trial.5 These abridgements uphold the myth of a speedy trial, when in fact defendants across the country often wait for two or more years for their trials.6 By showing Naz’s time in prison, The Night Of dismantles that myth. It also gives viewers insight into the myriad problems of the carceral state: overcrowding, corrupt guards, inadequate medical care, and more. Above all, it reveals the impossibility of full exoneration after an arrest.
The series defies formula by—spoiler alert—ending with a hung jury and a mistrial. This means that Naz is not found innocent, but he goes free because ADA Helen Weiss declines to prosecute him again. Legal procedure removes the burden of judgment from the jury and places it in the hands of a single woman. This briskly un-republican gesture disempowers the jury, which serves as a proxy both for the audience and for the country at large. It undermines our assumption that a trial automatically produces either a convict or a free man.7 For Naz, that ambiguity holds true on both practical and theoretical levels, since his time in prison swiftly makes it impossible for him to return to his old life. When Naz eventually re-enters to the world outside, it is as a pariah and drug addict.
At other moments, however, The Night Of scrabbles back towards the formula in ways that muddy its message. Most notable is the scene in which Weiss lures Box out of retirement in order to “go get” the real killer. Her earlier refusal to drop charges against Naz, despite evidence that he may not be guilty, was a damning critique of how the criminal justice system incentivizes immoral action. In turning away from that critique towards an invisible future in which the real killer may be prosecuted, the show tentatively suggests that despite case-by-case failures, the system overall may be functional. Likewise, the hung jury twist refuses to make a clear statement on whether the system is right or wrong: it has not done right by Naz, but it has also not falsely convicted him.
Nowhere is this utopian thread more evident than in the final shot of the series. A subplot throughout the series follows Stone’s efforts to adopt the murder victim’s cat despite his severe allergies. Eventually, in a fit of anger, he takes the cat back to the shelter, apparently to be euthanized. In the last scene, Stone walks across his living room. The camera pauses there for a moment. Then the cat comes prancing along after him, and—as viewers breathe a collective sigh of relief—we fade to black. Stone apparently went back to save the cat. Even in the most hellish circumstances, the show suggests, a rescue can be possible.
Legal procedurals ultimately educate us not only about particular procedures, such as the right to an attorney or the right against self-incrimination, but also about the overall health of our justice system. Is the final cat-prance of optimism dangerous or comforting? Does the fantasy that our system works make us better citizens or worse ones? There is no easy answer to these questions. What is certain is that a twist of fantasy makes a terrible reality more palatable. In The Night Of, a hard medicine to swallow comes with a spoonful of utopia to wash it down.
- A later episode even cheekily name-drops the reigning champion, when a copy shop clerk asks a lawyer if the trial exhibits are “for, uh, Law & Order?” ↩
- See Robert Paul Winston and Nancy C. Mellerski, The Public Eye: Ideology of the Police Procedural (New York: St. Martin’s Press, 1992) ↩
- The combination of legal and police procedurals under the umbrella of one show, as is the case in Law & Order and, to a much lesser extent, in The Night Of, is a subject for a different essay. ↩
- This argument is condensed from my doctoral dissertation, Forms of Justice: The Rise of the Legal Procedural in the Era of Due Process, 1930-1980, in progress at the University of Pennsylvania. ↩
- For example, Inherit the Wind or Witness for the Prosecution (1957). ↩
- See Article 9, Section 3, “International Covenant on Civil and Political Rights,” ratified 16 December 1966. In The Night Of, the District Attorney explicitly insists that the case be brought quickly, because of mounting community pressure. ↩
- Interestingly, the hung jury also achieves the same result that would have occurred if the judge had granted a mistrial for Naz and Chandra’s kiss. In this context, the hung jury therefore implies that juror disagreement stems from a flaw in procedure. ↩