Bonus Podcast: Proven Innocent

Episode Notes

Transcript

Above the Law – Thinking Like a Lawyer

Bonus Podcast: Proven Innocent

02/15/2019

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Intro: Welcome to Thinking Like a Lawyer with your hosts Elie Mystal and Joe Patrice, talking about legal news and pop culture, all while thinking like a lawyer, here on Legal Talk Network.

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Joe Patrice: Hello. Welcome to a special edition of Thinking Like a Lawyer. I am Joe Patrice from Above the Law. As you know, our usual show sponsored by Smith.ai appears every week, but we now have a special treat for you. We are going to have a series of episodes about a new show that’s premiering tonight actually on FOX. It’s “Proven Innocent”. It appears 9 o’clock Eastern and Pacific, 8:00 Central and Mountain.

So we are going to be talking with some folks with the show about the show process and also we are going to in later episodes get into some of the issues that the show brings up by talking to people who deal with them in real life. So it’s a fun arc about the show “Proven Innocent”.

And with that, I am going to begin by introducing my co-host Elie Mystal.

Elie Mystal: I actually made it in despite the snow. That’s how excited I am for this bonus content.

Joe Patrice: Nice. Well, yes, it is snowing here right now and you have made it, so that’s good. What else is going on with you?

Elie Mystal: So here is what I am angry about. You would think that I was going to be angry about the snow today, but actually it’s the simple courtesy that is denied in this country when you are trying to get on to an elevator, all right? I am coming in from the snow, I have got my boots, I have got my snow hat, I am not happy, in our offices there’s a long walk from the door all the way to the elevator bank, the elevator bank closes really fast. We are on the very top floor. I am not walking it.

The man can see me coming up down the hallway just behind him, but he runs into the elevator, clearly doesn’t hold it open, and I actually ended up having to get the elevator by like jamming my like big fat arm to keep it open, and I see that he has been holding the door close button.

Joe Patrice: Ooh, nice.

Elie Mystal: What is up with this? I honestly think that there should be regulating — and you know, I am a big liberal, I think there should be regulations to take the door close button out of all elevators.

Joe Patrice: That is ridiculous.

Elie Mystal: Only bad people use them. Think about one single time in your life where you have pressed door close and you weren’t being a jerk.

Joe Patrice: Constantly, because —

Elie Mystal: You are a jerk.

Joe Patrice: No, no, it’s not to lock anybody out. It’s to get the thing moving, which is why the future in which we all have those elevators where you push the floor and it assigns an elevator to you is going to be so much better.

Elie Mystal: Yeah, that’s better.

Joe Patrice: Yeah. But I am sorry that you had trouble with the elevator.

Elie Mystal: Hold the door open for people when it’s snowing especially. Come on.

Joe Patrice: That’s a shame.

Elie Mystal: We have to live in society.

Joe Patrice: Fair enough. So let’s get back to talking about the subject for the day. So the new show, “Proven Innocent”, it appears on FOX, starting February 15^th, which is the day that you are hearing this, at 9/8 Central. Today we are going to talk with folks behind the show.

So we have Danny Strong, who is the Producer of the show. You may know of him from a million other projects, from co-creator of “Empire”, to, if you are a person of a certain age, like I am, remembering him from Buffy as Jonathan.

Welcome to the show.

Danny Strong: Hello. Thanks for having me.

Joe Patrice: Hey. Well, so “Proven Innocent” comes out tonight. We have already seen the episodes, so one of the things I wanted to talk about was before we get too far in, one of the things that’s always an issue with lawyers like us is sometimes, we will put out there, it can get frustrating to watch courtrooms, because we are like, that’s not how you do it in real life, but then again courtrooms are boring in real life. And so one of the questions I had was in putting together a show like this, how do you balance that, like the authenticity that you want to grasp with the fact that people would stab their eyes out if they had to watch an actual trial?

Danny Strong: Yeah. Well, I mean you are doing an entire case that normally would go anywhere from, I don’t know, two to nine years in 43 minutes, and it’s not even really 43 minutes because we have got some personal storylines, we have got a season-long murder mystery arc that we do on our show, so our legal case is about 25 minutes, taking nine years and condensing that to 25 minutes. And I just think it’s an accepted trope in the legal drama that you are cutting corners. They have been doing these for about 50, 60 years and people love them, so it’s a matter of getting the big stuff and having it feel authentic even when you can’t cross every t and dot every I, because you have got to make it entertaining or people aren’t going to want to watch the show. But it can’t feel completely absurd or ridiculous so you are just trying to, like I said, do right by the macro.

(00:05:10)

Elie Mystal: “Proven Innocent” is about really the Innocence Project. It’s about, you have a character who is a crusader trying to free innocent people. There are real crusaders out there trying to free the wrongly convicted. I happen to think that the Innocence Project is just one of the most important aspects of legal work that is happening in the country right now.

How did you get attracted to the subject matter? How did you become aware of the Innocence Project? Like what’s your kind of personal arc into getting involved or getting interested in this topic?

Danny Strong: Yeah. I mean I have known about the Innocence Project for many, many years. I completely agree with you. I think the work that they do is absolutely incredible. Anyone who is in prison for a crime they did not commit is suffering a profound injustice and it’s an incredible tragedy and the fact that there is law firms — and it’s not just the Innocence Project, there are different wrongful conviction law firms around the country and I think the work they do is truly heroic.

How it came to me was the creator of the show, David Elliot, he came to me and he said, I want to do a show about the Innocence Project, some sort of fictional Innocence Project show, and a week earlier I had just seen the Netflix documentary on Amanda Knox and I was enraged watching that documentary. I didn’t know a ton about the case. I always kind of assumed she was innocent, but I didn’t really know the details, and watching the details, they are maddening, because she was so railroaded and she was so clearly innocent. I was actually screaming at my TV at certain points, and at one point I had to pause it so I could yell and then not miss out on anything.

So then a week later the writer says let’s do a show about wrongful conviction and I just said yes. I was so wound up about the documentary and I said, well, let’s make the lead character someone who was just wrongfully convicted herself and got out of prison and became a wrongful conviction attorney. And David, who had been doing research on the Innocence Project, said that that’s actually not uncommon, that often people that are able to get out, they have to become their own advocates in prison and then continue that work once they get out of prison.

Elie Mystal: Our lawyer audience will appreciate the main character. After she gets out she goes to Yale Law School, which is a nice gig if you can get it. I have interviewed John Grisham, who likes to put his characters in Princeton Law School, which doesn’t exist. So I give the show 10 points for at least getting the law school right.

Danny Strong: I am glad we got that right.

Joe Patrice: I am surprised you gave 10 points, because Elie went to Harvard, so I assumed he would dock one point for that, but.

No, one of the things about this show that I really liked was that when you say doing a show about the Innocence Project, one thing looking out the grand arc of lawyer shows that we have gotten away from, the wrongfully accused Perry Mason style has gone very much out of fashion and we have been in a couple of decades worth of legal TV being nothing but prosecutors putting people in jail and those are your heroes.

And so I think this is an interesting angle to kind of break with what’s become a tradition on legal television and say well, wait a minute, what if the prosecutor is not the good guy?

Danny Strong: Yeah. You know what’s interesting about this show is that exactly what you just said, we just flipped the legal show sort of on its head and I didn’t really think of it in those terms when we were developing it and when we started screening the show for people, once we cut it together, it really was, I don’t want to say radical, because that’s far too grand a word, but it definitely felt very fresh and original to them. Just this idea of someone is in prison, they shouldn’t be there and our lawyers have to get them out as opposed to someone committed a crime and we want to put them in prison.

That simple twist on the genre feels like a very big rethink of the legal drama in the exact way you just said, but that really wasn’t what we were thinking when we were developing it. We were just excited about shining a light on these issues and doing a show that was embedded in social justice/social injustice. That was my goal all along; I try and do it with everything I work on. Everything I work on as a writer, director, producer that it has a social justice angle to it and this was a bull’s eye for that.

(00:09:53)

Elie Mystal: Are you afraid about getting into the politics of it all? So a lot of legal dramas, they actually — they stay quite far away from the politics of it, although as Joe points out correctly, it’s all about that, that law and order, get the bad guy, protect the people kind of thing. In your show you almost have to deal with some of the politics of it — of it all, the bad guy if we can call him that, Kelsey Grammer, he’s running for office, how are you thinking about — how do you think through kind of navigating the political landscape when you’re trying to tell this social justice story?

Danny Strong: Well, the politics are part of the social justice story, so we’re not afraid of the politics at all; and as you said the Kelsey Grammer’s character, he’s running for Attorney General through the course of the entire season. So politics are going to be intersecting throughout the whole season and then it’s part of — it’s actually a storyline in the show. So now we will be in fact leaning into it all and politics ties into ruins and laws about these issues.

I mean, it just comes into play, just it can’t help itself. We have one issue in which a Muslim woman was given 25 years or after she miscarried her baby she left the fetus in a dumpster. And we have a very conservative judge in that episode and the whole episode is just riddled with politics.

Elie Mystal: Yeah, that episode you’re talking about it’s the second one that they gave us to screen, and I noted that you guys made the — I think bold choice of playing the judge as a kind of political figure which a lot of legal dramas don’t, you really I thought did a great job of showing how the judge’s kind of personal religious but also kind of political beliefs were really playing into. Again, what should have been the justice question of did this woman commit a crime or not?

Danny Strong: Yeah, I mean, as you both know that it comes into play all the time. We have a whole death penalty case, it ends up being a two-episode death penalty case and that issue is riddled with politics and they shouldn’t be, they should just be paralegal matters but nonetheless we’re trying to portray the reality of what our lawyers have to go through in order to try to get these people out of prison.

Joe Patrice: As a personal level I was a criminal defense lawyer before this, and well, I think it’s great to see judges not portrayed as these completely unbiased referees because they do make calls. One thing that I really do like is the idea that the prosecutor actually holds most of the cards in these sorts of cases, the prosecutor can do so much that we — like that most Americans think are the province of Judges and Juries, the prosecutor gets to short-circuit so often and the way in which we now are turning the legal drama on its heads as we were talking about is useful because I think people need to understand that the prosecutor is way more powerful and way less a golly shucks, I’m just trying to do my job sort of character because they’ve got everything going for them and with their politics can often be the difference for people which the way I would turn this into a question one thing that comes up in shows not to get into things that actually happen in the shows.

But, there are situations where we talk about plea deals obviously because that’s something that prosecutors can control and you get this situation where people feel compelled by the way in which they are being held against their will or with worse charges being dangled over them, people feel compelled to agree to things that they may not have actually done, may not believe that they were guilty of that, they do because they’re scared and I think the show by tackling some of that is very valuable because I don’t think people get how powerful the plea process can be in getting people to confess to things that they didn’t really do. And most Americans think, oh, they agree, they said they did this and that’s not always the case.

Danny Strong: Yeah, well, this issue comes up time and time again on our TV show.

Joe Patrice: Yeah.

Danny Strong: And we even say in the pilot we try to throw some statistics around here or there when it’s relevant to the scene but it’s also neat to get that information out. In the 2000 cases in which people were exonerated by DNA evidence, 500 of them falsely confessed. That’s 25% of people exonerated by DNA evidence falsely confessed.

Joe Patrice: Yeah.

Danny Strong: A staggering figure and there are so many reasons behind why they would make these confessions. And it’s usually disproportionately affects poor people that can’t afford the types of lawyers that would prevent these false confessions from taking place.

Joe Patrice: And on top of — well, I just wanted to say, on top of just not even be able to afford lawyers I’ve dealt with clients where they can’t afford to not be able to get out to take care of their kids or do their job, like they are not in a position to wait in a prison for a few days, and so they are compelled by the social pressures too.

(00:15:16)

Danny Strong: Yeah, yeah, it’s very tragic. Or they’re held they just keep talking and they’re not told, they can ask for an attorney and there’s certainly police misconduct can also occur although this show is not — I wouldn’t say that our show is anti-police or anti-prosecutor. I mean, we have all sorts of cases where we see these issues aren’t from the wrongful convictions don’t arise from police misconduct, they don’t arise from prosecutorial misconduct, we also want to show that our prosecutor Kelsey Grammer’s character Gore Bellows, we want to get in his head and to see his pressure in his — why he’s making his decision as opposed to some mustache twirling nefarious villain. He is very — on our show he’s very passionate about justice and thinks he’s doing the right thing by it most of the time, we may have to cut corners over there.

Joe Patrice: Yeah, maybe “bad guy” is the wrong word, maybe “antagonist” at the show is the right word.

Danny Strong: Yeah, that’s accurate, he’s definitely — and that was one of the things Kelsey Grammer was attracted to the show was the fact that, hey, he just really liked it. He thought it was a really cool show but he thought this character could be much more, could be a really multi-dimensional character for being the antagonist of the hero of the show.

Elie Mystal: I was going to ask more of a television question, like how do you think about keeping this kind of stuff entertaining, one of the things about when you read through some of the people who have been free, some of the fights that the Innocence Project is still ongoing, they are horrible stories, right? I mean, like there’s stories that make you cry. It’s not something that you would kind of — I pull like this, I read some of this stuff because of my job. When I’m using my free entertainment time like I just want to go shoot some zombies, I don’t want to like remember how Tyler got railroad, right? So how do you — knowing that this is primetime television, how do you think about keeping the stories kind of I don’t even know what the right word is like lights enough that people can like watch the show, enjoy it and not go home and cry for three hours?

Danny Strong: Yeah, well, that is a terrific question and I think that that question is the reason why this show hasn’t been done before. Because it’s so obvious, right, how has there not been a big wrongful conviction show that’s been on the air for a decade and I think it is the challenge of making it entertaining, because when you research these cases they are all so depressing, like you said in there they are really demoralizing, the people that have been walked away for 25 years, 30 years of their lives for reasons that are just so grossly unfair.

And the short answer is, well, that’s our job, right? Is that if we can’t make it entertaining, it’s not going to even get on the air, it’s not even to make it through the process it gets on the air.

Now the longer answer to your question is, I think primarily our approach has been by approaching these cases as cold cases. So someone’s in jail, and it’s very tragic, we know they shouldn’t be there, we meet them very early in the episode. We find out what happened when we find out one side of the story.

And then the rest of the episode plays out is a pretty exciting, well, what really happened, who done it, how do we get them out of jail because it’s not just a legal procedural but it’s also an investigative show and because the stakes are so high someone is — we definitely want this person to get out of prison it makes the show more dramatic and more compelling in a way that people seem to be really enjoying.

So that’s kind of the basic approach — we also have this season-long murder mystery arc which is who did kill Rosemary Lynch; and now, Rosemary Lynch was the girl that was murdered that put our protagonist in jail for 10 years. So, it’s plain, it’s also an exciting who killed Laura Palmer type season-long arc, so between the sort of mystery of the weekly case and the mystery of the season-long arc and hopefully some fun, soapy moments with our character’s personal lives and we try to infuse some wit into it.

The show turns out to be a pretty exciting, pretty cool ride and I found that the resolution — most of these people, it’s a TV show on a network, right, they’re mostly going to be get out of prison, sweet, not everyone.

(00:20:03)

But even though you know that, yes, most likely they’re going to get out, it’s a great ride to see how our lawyers get them out and then I have to say it’s so emotional when they do, we did a screening in Atlanta and then the pilot, the audience broke out real applause towards the end of the court scene in the last act in a really spontaneous dynamic way, and we just thought, oh wow, this is cool, people care, they’re drawn into these stories.

So I think we’re delivering a really high level piece of entertainment while simultaneously shining a light on the issues, and in a way where when the episode ends you don’t want to go cry in the corner, you’re actually pretty hopefully invigorated about what occurred.

Joe Patrice: You definitely did a lot of research because a lot of the tricks kind of not — and I shouldn’t say “tricks” but a lot of the concepts that are used by these attorneys to get people off are concepts that are being used right now all over the country in these sorts of cases. So it’s interesting to put that out there because I think their concepts that back to the turn again on its head thing that for many years people say, oh, they got off on a technicality and you spend a lot of time going like, well, this technicality you speak of here’s what it means in real life, here’s actually how any number of science or translation or whatever — how these things can have real impacts that can hurt people.

Danny Strong: I mean that’s basically the procedural quality of the show. I mean that’s the work of our lawyers that we’re going to do weekend and week out and we’ve got a number of lawyers on our writing staff. We have a legal consultant who’s a wrongful conviction attorney that we give our scripts to, and we also have two full-time researchers that were constantly asking questions of. So it sort of goes back to your original question about how do you make it feel real when it’s these cases go on over many, many years and we try to get — we try to get the twists and turns in the legal minutiae.

We try to get that right and by doing that that’s sort of the exciting part of the show is seeing how our smart lawyers are able to undo this and justice with the legal work that one actually have to do to do it. Another element that made me really feel like we could have a successful show here was when David Elliot told me and he’s the creator of the show, he said that these are — these cases the police, they don’t want anything to do with them because they’ve already found the criminal and that criminal is in jail. So there’s no interest for the police to do any type of work to get these people out.

Now, of course that’s not in every scenario, I’m sure there’s been situations in which a compassionate cop or investigator came on-board to help but as a whole our lawyers, they’re the ones that have to go, figure out, find out how in the pavement to discover what really happened and this is all based on interviews with the real wrongful conviction attorneys at times that takes them into dangerous scenarios, in dangerous neighborhoods. And literally pounding the pavement in neighborhoods where crimes have been committed and knocking on doors.

So that element of it I think is another element of why I thought this could be a successful TV show because our lawyers are — they’re not just lawyers, they’re also private investigators.

Joe Patrice: Yeah.

Elie Mystal: Are you worried at all about kind of a CSI effect so for people who don’t know the CSI effect is basically that everybody started watching CSI and now when you have a Jury, a real-life Jury with a real case, they expect you to bring David Caruso out there with the evidence, right, with the antidote, with the actual DNA, oh we brought bones in and we saw that right when actual cases rarely have such hard clear-cut evidence. Are you worried in your show about that issue as well where the suggestion could be that the people who are innocent and wrongly convicted it’s so obvious to everybody, but Kelsey Grammer, are you worried about kind of creating the impression that these cases are slam dunks when really they are very close issues that turn on as Joe put it sometimes really small technicalities?

Danny Strong: Yeah — no, that’s a good question, I hadn’t really thought about the CSI effect. For our show, I mean, my gut is that if the show is successful enough to have any kind of effect which would be amazing if it did, it would have the effect of making people more compassionate towards individuals that have been wrongly convicted. I think right now there is a bias against people that have been convicted.

(00:24:58)

Well, if you’ve been convicted, you obviously did it or you did something wrong, and I think if people are watching our show, it’ll give them a new understanding of how people that have been convicted in fact didn’t do it at all. And my gut and hope would be that would make them more compassionate and more open-minded towards these cases if they were to get jury trials, and sometimes they get dirt sometimes they don’t.

Joe Patrice: Right and sometimes I get back to the plea that they got kind of railroaded before they ever needed to, but yeah, if it has the effect of making our average juror be a little bit skeptical and actually do the job of caring about reasonable doubt that would be a great thing.

Elie Mystal: I would say if it has the effect of getting the media even to just a little bit stop acting like technicalities aren’t important, stop — in the first episode don’t act like suppressing the exonerating evidence, is it important? That’s usually important, yes, it’s a technicality but it’s a down-rating evidence —

Joe Patrice: We have the Supreme Court cases about it and everything.

Elie Mystal: So, yeah, from your lips to God’s ears, man!

Danny Strong: It’s a technicality that is everything, it literally puts someone away for something they didn’t do.

Joe Patrice: Yeah, no, absolutely. Well, thanks so much for talking to us today. For those of you listening, you should watch the series premiere ‘Proven Innocent’ at 9/8 Central on Fox, February 15th, which is the day that you’re listening to this, it’s not the day we’re recording it, that’s why I just had that little awkward moment where I had to save the date out loud but —

Elie Mystal: Time travel.

Joe Patrice: Yeah, you all get the point of the time travel that we’re doing here. But thanks Danny for joining us. Thank you to all of the listeners. Thanks to Fox for allowing us to have this special arc of shows that explore the issues brought up by Proven Innocent and obviously you should listen to the podcast, rate it, review it, all the things I say at the end of the Smith.ai episodes that we do weekly and we will have another one of those coming up soon, and with that I think I will say see everybody later.

Elie Mystal: Peace.

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