By Finchley Atticus

Lawyers in Your Living Room! Law on Television by Michael Asimow is a 2009 book that guides readers through our beloved legal dramas over the decades.  Perry Mason, Law & Order, Ally McBeal, The Practice, Boston Legal, the TV lawyers we grew up with and motivated eager law students to wonder aloud in a criminal law tutorial “What would Jack McCoy/Ally McBeal/Alan Shore do?”. For the current generation of law students, Harvey Specter’s legendary quotes probably receives more insight and attention than that of a corporations law lecturer (with due respect to all corps law academics who are tireless in their efforts to get students interested in the Corporations Act).

I’m a devotee of L.A. Law, Law & Order, Ally McBeal, and The Practice.  It’s trite for well-meaning folk to remind us these shows are fictional, with “fictional” being the operative word. However I’m willing to submit to the bench that The Practice is as close as any TV series will get to a true-life street shop law practice, where not all the good guys win but some of the bad guys do. What caught my attention about Asimow’s book is the title. Not the “Law on Television” bit. It’s the “Lawyers in Your Living Room”, particularly the living room.

I have a theory I’d like to put on the coffee table.  I think there’s a greater probability of connecting with our legal heroes if they are portrayed on TV. Yes, we connect with our cinematic legal heroes, and a bit more about that later.  So why television? The fact Asimow’s book isn’t titled Lawyers in Your Corner Office with Harbourside Views probably provides an inkling. High profile American defence attorneys Mark Geragos and Pat Harris in their book Mistrial, criticise a growing number of prosecutors as “moralistic crime fighters” having grown up watching television shows like Law & Order, such as the outsized role television plays in developing the hubris of some prosecutors.

A few years ago, I saw an interview with US actor Patrick Duffy, forever immortalised as Bobby Ewing in the 80s TV drama Dallas. Duffy was asked why viewers become emotionally invested in TV characters. I thought Duffy was trying to draw a laugh when he believed it’s because the audience watch their favourite stars between their feet. The more I thought about it, the more I realise he has a serious point. It’s in the comfort and safety of our home, predominantly in our lounge room, where we follow the trials and tribulations (no pun intended) of our legal characters, week after week, all encapsulated in an hour-long episode. And we do so relaxed and spread-eagled on our favourite couch (explaining why the viewers in Gogglebox are couch bound), drinks and comfort food in hand, dressed as casually and daggy as we like. We really are ourselves in our lounge.

A person’s home is their sanctuary, a concept embodied in some laws. Tragically there are ways a home, and by extension us, can be threatened. World leaders invade countries. It was only relatively recently that home robberies became termed home invasions (God forbid this doesn’t happen to anyone). Home invasions have high priority in the 6 o’clock news, broadcast across millions of, yes you guessed it, lounge rooms nationwide. We have Australian Consumer Law protections to shoo away intrusive door-to-door salesmen and telemarketers. Sure, maybe more of us have less need for landlines, but there is an underlying and potentially sinister invasion of our sanctuary when a stranger calls, especially when our kids are around. Lawyers who grew up in the 70s can be forgiven by still being chilled by the threatening line “Have you checked the children?” intoned by the murderous home invader over the phone in the 1979 American cinematic thriller When a Stranger Calls, where the innocent babysitter was shockingly warned over the phone by the police to “get out of the house, the call’s coming from inside the house!!”

It’s no coincidence the Australian legal comedy The Castle is called The Castle. A man’s home is his castle after all, and we cheered everyday hero Daryl Kerrigan as he took up the cause against the Government using legal means to take his sanctuary. Pacific Heights, a 1990 US motion picture centred on married homeowners played by Meg Ryan and Matthew Modine, seeking to evict a tenant. The cruel twist being the tenant uses the law to outstay his welcome in the couple’s home. Remarkably, this is reflective of real Californian laws.

Now isn’t it ironic my exhibits to support my theory are all cinematic releases? Maybe, but as children growing up in the 70s and 80s, we were too young to see When a Stranger Calls in the cinema. Which is why we saw it on TV in the safety of our lounge and delightfully imitated the chilling quotes the following day at school. I’d take an educated guess and posit that a large majority of people who saw these motion pictures did so in their lounge room, especially aided by the VHS and then DVD boom.

Sure, TV can’t really replicate the big screen experience but the cinema isn’t our private space. Yes cinemas give us the big screen experience, mass audience participation, popcorn and choc-top ice creams. But in some ways the cinematic experience can be disruptive and intrusive, with some inconsiderate and rude patrons stumbling over our legs, sending texts or even worse phoning during the screening, munching, coughing, sneezing, exposing us to foot odour, and scratching whatever body parts.  And cinemas expect us to fork out $20 for the privilege! At least in our lounge room we can text, talk, munch, cough, sneeze, remove our shoes, and scratch whenever we want thank you very much.

But au contraire, Finchley, what about Atticus Finch, our fictional hero who for many lawyers ranks at the forefront in the cinematic pantheons of lawyers who inspired many a high schooler to enrol in law school to balance the scales of justice. To Kill a Mockingbird was a motion picture, not some cheap network TV series. Good point. I’ve had to give some thought to this. Here is where my lounge room TV theory starts to become metaphorical. To Kill a Mockingbird had its cinematic debut in 1962. Yes since then there have been special anniversary limited runs, but I’d be willing to say that unless you are now old enough to be on the pension, a very large number of law graduates saw To Kill a Mockingbird in high school during a legal studies class if they didn’t watch it in their lounge.

But, Finchley, sorry to point out the obvious but high school isn’t a home. Again, I had to really think about this … when you add up all your hours in a typical week at high school (boarding schools aside), you realise it’s almost equivalent to your total waking hours at home. You probably saw more of your teachers and fellow students than your parents. For better or worse our high school classroom became symbolic or even a proxy of our home and lounge room. High school was the place where we promised to be friends forever, developed crushes, hearts got broken, gossiped, goofed off, laughed, cried and who knows what else. It’s also the place where To Kill a Mockingbird debuted for many aspiring law students. Sure, school isn’t a home but I think we know at least one high schooler who suffered embarrassment by accidentally calling their teacher “Mum” or “Dad”. I don’t know anyone who for a brief moment accidentally called their Mum or Dad the name of their favourite English or Legal Studies teacher.

You can take us away from our lounge but it’s another thing to prise TV from our lounge room. About 25 years ago Sony released the Watchman, one of a line of handheld televisions, with the Watchman name being a pun on Sony’s famous invention the Walkman. A certain generation have fond memories of their Walkman, a hand-held audio cassette player to which we bopped to Cyndi Lauper and partied with Prince like it was 1999. But why weren’t people captivated by the Watchman, which one could cradle in our portable private space to make sure we never missed the latest episode of L.A. Law. Why didn’t many watch the Watchman?  It goes back to the lounge room theory and the intimacy it affords. It’s difficult to recreate that same intimate atmosphere on the bus, train or tram where your private space (for what it is) is interrupted by disruptive and intrusive passengers, some of who will stumble over our legs, munching, coughing, sneezing, exposing us to foot odour, and scratching whatever body parts. Maybe things have changed over 25 years with shows now streamed on demand on our smartphones or tablets, but with that comes the inconsiderate passengers sending texts or yakking on their devices in our private space on the bus train or tram. Still the same, to paraphrase US rocker Bob Seger.

Part 2 continues soon.

By Finchley Atticus

Who are you? Who, who, who, who?

So opens each episode of CSI: Crime Scene Investigation, the erstwhile American TV forensic drama. The classic rock song “Who are you?” by British group The Who will for many TV viewers be associated with CSI. An apt theme than any, as expounded by communications expert and law graduate Lauren M. Hug.   “Who are you?” is asked by the CSI team to construct the victim’s identity, what happened to them, and how the world perceived the victim in often vicious circumstances.

Tragically it didn’t take long for us to learn about and mourn for Jill Meagher, the former ABC employee who in 2012, walking to her Brunswick home on that fateful night, suffered unimaginable cruelty at the hands of her rapist and murderer Adrian Bayley, subsequently sentenced to life imprisonment. The community became further outraged as we learned more about Adrian Bayley, his violent past as a multiple-rapist prior to Jill Meagher’s death – revealed through his new rape trials in 2014 and 2015. Adding to the horror was the revelation that Bayley raped two of his victims just months prior to the rape and murder of Jill Meagher, and he was on parole at the time after serving a sentence for a series of  rapes in the 2000s.  No surprise that the Victorian Adult Parole Board apologised to Jill Meagher’s husband, Tom, for its failure to cancel Bayley’s parole after he pleaded guilty to assault in 2012, several months before the horror inflicted on Jill Meagher.

I really wanna know, who are you? Who, who, who who?

Amidst the disgust and outrage, the public looked in a certain direction to ask “who are you?” One letter writer to the Sydney Morning Herald wondered why the names of the Parole Board were unavailable on their website.    Noel McNamara, President of the Crime Victims Support Association wondered “With the parole board…no one knows who is really on there.”

Tell me, who are you? Who, who, who, who?

I should stress it’s not uncommon for government authority websites to omit their membership listing.  VCAT no less doesn’t list its members on its website. Same with the ACT Civil and Administrative Tribunal.  For the record, the Adult Parole Board’s membership is available in its annual reports which can be downloaded.

Cause I really wanna know, who are you? Who, who, who, who?

I suspect a major public misconception about murder trials is that evidence must be presented explaining why the deed was committed. No doubt thanks to legal dramas with the words “murder” or “death” (looking at you Murder She Wrote, Death in Paradise and Midsomer Murders), the public demands to know why, not just who. And I think the questions abounding about who are the Parole Board members – which are legitimate questions after all, as it is a taxpayer-funded authority – somehow seek to provide a window into why the Board made its fateful decision in the Matter of Adrian Bayley. If we don’t even know who they are, how can we even look into their eyes to examine their soul? Who? Why? How about what if? What if the Parole Board had revoked Bayley’s parole months prior to Jill Meagher’s death, which would have been in tune with community expectations. But surely it’s pure fantasy for the courts or tribunals to skew its independence to the will of the hoi polloi?

Reagan-Bush revisited (1981 – 1993)

I’ve never embraced the popularity of fantasy sports but I can understand the democratic appeal to dedicated sports fans who put themselves in the selector’s seat by handpicking their sports warriors to do justice, something which those well-intentioned but weak-minded real-life selectors just cannot get a grip on. For some it’s the ultimate wish-fulfilment to make wrongs right.

The TV and movie industry embodies a kind of democracy of ideals and wish-fulfilment, creating a fantasy world and entertaining no less, for public consumption. Legal drama screenwriters are no exception. The world through the creative lens of some screenwriters represents –  in an entertaining way designed with a keen eye on box office dollars or TV ratings – the way they think (or the way the public should think) judges should get a grip on achieving justice for innocent folk in a broken legal system that fails the hoi polloi. Consider these screenwriters Your Ombudsman who exercise imaginative and creative authority to restore justice.

When I graduated from Monash Law School, the 12-year conservative Republican Reagan-Bush era had wound down thanks to the American voters electing Democratic candidate Bill Clinton to the White House.  Some may remember the Reagan-Bush years as embodying the “tough on street crime” philosophy – although curiously many moneyed denizens of Wall Street appeared to be exempt from this hard-line approach to law and order thank you very much. This tough attitude arose from the view (rightly or wrongly) that well-meaning judges who stuck by the rule book were restrained from throwing the book at the criminals because Their Honours were frustratingly outplayed by smart and sneaky lawyers who deviously got their violent clients off the hook due to some obscure and dusty legal technicality, aided by some liberal-leaning law professors who have never seen the inside of the court room and always found time to serve pro bono on marijuana advocacy groups.

It seems that pre-Reagan era of movies from the 70s featuring everyday vigilantes frustrated with a broken legal system – cue Charles Bronson’s Death Wish saga and any film fronted by Clint Eastwood – ushered in judicial vigilantes a decade later. So how were judges – often unfairly perceived as ratifiers of a broken legal system – co-opted by screenwriters as robed vigilantes?  For one thing judges have a higher public profile in the USA. Supreme Court nominees steel themselves for prime time, having every aspect of their judicial and private lives combed through by senators and the media as they prepare for televised and gladiatorial confirmation hearings. Many judges are at the mercy of the electorate at the ballot box, and in some instances have been turfed out of chambers by voters seeking to balance the scales of justice.

The Star Chamber (1983)

The Star Chamber is one movie borne of Reagan-Bush that personified judges more concerned with seeking to right wrongs perpetrated by violent criminals who gleefully escape conviction thanks to their first class attorneys and a second rate legal system.  Michael Douglas plays Los Angeles Judge Steven R Hardin – we know that because of the shiny gold nameplate on the bench –who is frustrated at having to reject evidence gathered from a garbage truck sans search warrant, despite the accused confessing to multiple murders.  Soon afterwards Judge Hardin is bound to throw out key evidence against two men arrested for the murder of a 10 year old boy, with the boy’s father pleading to Hardin, “That is my little boy, not a point of law.” Hardin’s had enough and finds himself inducted to The Star Chamber, a group of judges meeting secretly in a smoke-filled room (being the 80s, most of them smoked) to pass sentence on the garbage who have slipped through the legal cracks. To ensure they are at arms-length they engage an anonymous assassin to execute the sentence forthwith. The fact these judges exercise unorthodox and extra-judicial authority to restore justice is not definitely ultra vires in this fantasy world.  Whether you like The Star Chamber or not, three words can be associated with it: explosions, gunfire and violence.

Dark Justice (1991 – 1993)

As a cop I lost my collars to legal loopholes…but I believed in the system.

As a DA I lost my cases to crooked lawyers…but I believed in the system.

As a judge my hands were bound by the letter of the law…but I believed in the system.

Until it took my life away…and then I stopped believing in the system, and started believing in justice.

So intones Judge Nicholas Marshall (portrayed by Ramy Zada in the first season, then Bruce Abbott for the remainder of its run) at each episode opener.  The TV series Dark Justice wrapped up the Reagan-Bush years, and in each episode Judge Marshall convened a Star Chamber backed by The Night Watchmen (dubbed by an inquisitive journalist), some of whom were reformed criminals, seeking to bring criminals to justice – all within 45 minutes excluding commercials.  His Honour’s ominous catchphrase to criminals let off the hook due to legal technicalities is “Justice may be blind…but it can see in the dark.” Again: explosions, violence and gunfire.

Of course it would be pure fantasy (except in the eyes of a talented screenwriter) if a member of the Victorian Adult Parole Board was to set up a Star Chamber to restore justice for victims short-changed by a legal system blind to their concerns.  Really, it’s not as though someone aggrieved at being banned by the Chief Commissioner of Police from a casino can seek legal advice from the Chairman of the Parole Board on how to appeal the ban. Oh really?