Picturing Justice, the On-Line Journal of Law and Popular Culture

Christine Corcos Associate Professor of Law and Women's and Gender Studies (and curmudgeonry) at Louisiana State University, Baton Rouge, LA. She is currently writing a book on the 1944 witchcraft trial of psychic Helen Duncan.



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The politics of First Monday is another problem. This episode is agenda-laden. Dealing with Novelli's first crisis of conscience, it drags out all the memes associated with capital punishment, the execution of juveniles, and the execution of the mentally disabled. These are important issues. Unfortunately, the writers treat them with dialogue dredged up from film noir.

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by Chris Corcos

Oh, dear. First of all, why did this series premiere on a Tuesday and why will it then air on Fridays? Well, if that were the most important of our questions, we'd be all right.

O.K., let's get the special pleading out of the way. Yes, the first episode of any series is clogged with characters and situations, in order to get the viewers acclimated. And maybe Executive Producer Bellisario is angry about Bush v. Gore and its seemingly politically-influenced result.

After watching the first few minutes of First Monday, I had the sinking feeling I often get when reading student first drafts. I can identify some interesting ideas in there, but they're camouflaged behind murky thought patterns, cliched writing, superficial analysis, and a lack of intellectual direction. Shall we start with the characters? Or the plot so full of holes you could drive a truck through it? Or the bad dialogue? All of these tax my linguistic ingenuity.

The characters are straight from popular culture images of former and current Supreme Court Justices. Garner's conservative, sports-crazy Chief more interested in Oklahoma's national rankings than in a death-row inmate brush with lightning is a mix of Byron "Whizzer" White (for the sports), and various SCJs, including current CJ William Rehnquist, for the conservatism (and coldness and insensitivity). Are the Justices that sports-crazy? According to a friend who clerked at the Court, some of them are. So that part is accurate. If the writers had made more of it dramatically, it might even be important. Estelle Weisenberg is clearly Ruth Ginsberg without the charm or finesse. Jerome Morris (James McEachin) is Thurgood Marshall-like and thoroughly admirable. Not much you can do with that if you're an actor, though. Apparently Clarence Thomas, who would have been a more interesting template for a justice, is off-limits for political reasons.

The politics of First Monday is another problem. This episode is agenda-laden. Dealing with Novelli's first crisis of conscience, it drags out all the memes associated with capital punishment, the execution of juveniles, and the execution of the mentally disabled. These are important issues. Unfortunately, the writers treat them with dialogue dredged up from film noir. In the interests of full disclosure, I will admit that I am a knee-jerk liberal, against the death penalty, for affirmative action, and pro-choice. But the conservatives on this show get a bad rap. Their legal positions are misrepresented to the point that they seem to ignore or wilfully misunderstand the law. When Novelli and Brankin discuss the advisability of issuing a stay, Brankin's opposition is political, rather than legal. He suggests that no possible presentation of evidence or law could result in a rehearing of the case. Therefore the stay would be cruel, since it would hold out false hope. Novelli's response is to ask his law clerks (Elly is the only one who does any work on the case) to find him "case law" that would allow him to issue the stay. Elly comments that the request for a stay is badly drafted. What's the dramatic point? That death penalty advocates are committed but incompetent?

Meanwhile, Brankin calls the justices together to discuss granting cert (do they do that sua sponte?). We hear various comments throughout the episode about the number of justices it takes to grant cert, deny cert or obtain a "win": different breakdowns fly through the air with law clerk assessments about how things "would have turned out" if Novelli had been on the Court the year before. This all becomes confusing and even law teachers who watched the episode were left in doubt about what was actually being said. The over-emphasis on and confusion over "how many votes" distracts us from the really interesting question: how do Justices make up their minds? In addition, what goes on behind the Justices' closed doors in chambers is shrouded in mystery, since no one else, not even a law clerk, goes in there. The scene in chambers is therefore totally misleading. If the scriptwriters are trying to tell us that what goes on is smoke-filled room politics, they could not have been more obvious, but we have no way of knowing whether they are correct. Dramatically, it would have been more interesting if the discussion were not shown and Novelli had to explain the results to his neophyte clerks (and us) in guarded, obscure language.

The political breakdowns are obviously more important than the legal positions. Of all the impressions First Monday throws out about the Court, this one is perhaps the most accurate. Politics does matter. But does it matter to the extent that the writers suggest? Do they really want to tell the American public that the Brethren make up their minds about who wins and who loses the way they make up their minds about what to order for dinner? If so, they need better plots and better dialogue than this. I'm very cynical about a lot of our legal system, but even I think it's a cheap shot.

Elly eventually trots in with a case; Novelli objects to it by saying it isn't factually consistent with the case at bar, and also that the petitioner lost. (How did this woman get a job as a law clerk, anyway?). He chastises her for letting her political beliefs get in the way of her legal research. Off she goes to try again, and he continues to think deep thoughts in chambers. The scene of her doing research in the law library is quite something. Apparently the only person who knows where anything is located is the person at the desk (who we are meant to assume is a librarian). She even knows where specific volumes of reporters are. And she has a code of ethics. When Julian (Brankin's law minion) pumps her for information about Elly's research, she declines to answer. The image of the librarian is accurate-they really do know a lot of stuff and they keep their mouths shut. Are we going to see that developed? It might make an interesting plot line at some point. Eventually the great breakthrough comes, when at the end of the episode, her male colleague (Jerry, the liberal, nice one) rereads the trial transcript and opines that the inmate didn't intend to kill his victim. Aha! Shouts Elly. New evidence! Novelli can grant the stay. He does, and she tries to get through to the warden in the usual cliched last-minute reprieve scene, but just as it did in the beginning of the episode, lightning strikes the prison, knocking out communications, and she has to give up. Moses is executed. She feels really, really bad about that, too.

The triumph of politics over law is even uglier in the scenes involving the transsexual Mexican national who wants political asylum. The petitioner sits with her attorney at the defense table. While the Court provides tables for attorneys, petitioners don't routinely sit with their advocates, and justices don't pepper clients with questions from the bench. (The closest anyone ever came to addressing the Court without leave was when Larry Flynt objected to the proceedings during his attorney's November 8, 1983 oral argument and Chief Justice Burger ordered him arrested. Keeton v. Hustler, 104 S. Ct. 1473 (1984)). The questions directed at the appellant and her attorney from the conservative Justices are mean-spirited and rude. Chief Justice Rankin tells the petitioner if he'd just put on a pair of pants his "problem would be solved." Justice Hoskins asks the attorney if the petitioner plans to have "the operation" to make him female. She says she doesn't know (like Elly, yet another incompetent female practicing law in the jurisdiction of PopCultureLand, apparently). The client admits at that point that he is really a transvestite, destroying his case. To make matters worse, the attorney accepts a dinner invitation from Novelli's Hispanic conservative law clerk, Miguel (at least he's not named "Jesús" or "Juan"), who tells her that he likes her legs. At dinner she admits that she never met her client before she took the case yesterday. They go dancing, and in a plot twist one can see a mile away, she reveals that she is a transsexual. So much for Miguel's (we are to assume) misguided admiration of her legs. ("Oh," he says, "that's why you wanted to lead.") Miguel is apparently meant to go against type: he's anti-affirmative action and pro-death penalty. He's the Clarence Thomas of Hispanic-American legal circles, reminding viewers that we can't judge a book by its cover or a lawyer by her figure, or a law clerk by his name.

At the end of the episode Novelli calls his Chief Justice in the middle of the night to tell him he plans to issue stays for all eight death row inmates convicted of crimes committed while they were juveniles. The CJ is unimpressed with this display of potential moral courage, and so are the viewers. Moses is still really dead.

And the language! Non-lawyers will think lawyers are linguistically challenged. When examining the picture of Novelli on the football team, male law clerk 1 (Jerry the likeable guy) says he didn't realize his new boss was a jock. "Look beyond the prima facie evidence," Elly informs him (Novelli was the water boy). Prima facie evidence? I know some pretty pretentious Ivy League law grads. Even they don't talk like that.

The interactions are bizarre. Newly appointed Justice Novelli's (Joe Mantegna) first meetings with his fellow justices occur on his first day of service. Likely? I think not. Nor do they really lobby each other on the way down the hall to hear oral argument. And does the CJ joyfully shout "Let's make history" after a football huddle, as they pile onto the bench, like a high school cheerleader with delusions of grandeur? And it's pretty implausible that Novelli has never been to the Court before. After all, he has to move into his office.

My local newspaper ran a column about the episode yesterday. The critic objected to the depiction of only four law clerks, three of them working for Novelli, saying that viewers might think that's all it takes to run the Court. Believe me, if that was all I thought viewers would think was wrong with the Court, I wouldn't worry about it. The erstwhile quartet didn't bother me; in fact, I found them so annoying that I don't think I could have taken more than that. "Elly" does all the work, and all the worrying. One of the males, "Jerry Klein", is the pragmatic sort, very likely to do well as an eventual popular and emotionally healthy partner in a major law firm, probably headed for a judgeship himself one day. Third up is Miguel, the conservative jackass who gets his comeuppance at the end of the episode. Finally, there's the Chief Justice's law clerk, a smarmy bit of work named Julian Lodge, who spies on the other clerks for his master's benefit.

The one redeeming social value is the acting. The wonderful Charles Durning, who has bad limericks to recite, James Garner, Joe Mategna and the much underrated James McEachin are among the talented bunch trapped in this mess. The actor playing the condemned man does a fine job, as does the one playing his prison guard, but again their dialogue is familiar and thus much less touching than it should be. The young death row inmate whom lightning strikes twice is named "Moses"-unfortunately he's not leading us into any promised land that I can discern, except that of certain knowledge that people in this country are wrongly executed every year.

First Monday could be so much more than it is-an exciting examination of ideas and social policy coupled with the human interaction that we forget makes up a great part of the workings of the Court. Any reporter volume is full of intriguing and interesting cases that could form the basis for a fascinating plot, that with effective writing and plotting would not be beyond the audience's ability to comprehend.. Memo to Donald Bellisario: Get in touch with me. I can help you with this.

If I talked in sports cliches, I'd say First Monday so far has too many men on the field, and ought to be penalized for late hits. Since I don't, I think First Monday is full of (I hope) reversible errors. But so far, I'd deny it cert. Without radical revision, I give this series a very short Term.

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Posted January 18, 2002

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