Chicago Justice, Rights, And Pop Culture Malpractice

Dick Wolf, the “Law and Order” creator, is in the process of taking over NBC prime time. He now has four linked dramas dominating the schedule—“Chicago Med,” “Chicago P.D.,” “Chicago Fire,” and the latest, “Chicago Justice.” (Soon to come, at this rate: “Chicago Sanitation,” “Chicago Pizza,” and “Chicago Cubs.”)

Yesterday was Episode #2 of “Chicago Justice.” The story in involved a “ripped from the headlines” riff on the Brock Turner case, where a woman was raped while unconscious and the rapist received a ridiculously lenient sentence. In Wolf’s alternate universe, however, the judge was murdered, and the rape victim and her ex-husband were suspects. There was another wrinkle too: one of the prosecutors had a close relationship with the dead judge, and was with him right before he was killed. She was going to have to be a witness, and her colleague and supervisor, prosecuting the case, asked her if she had been sleeping with the victim. Such a relationship would have been an ethical violation for the judge, and at least a pre-unethical condition for the prosecutor, requiring her to relocate to a Steven Bochco drama, where lawyers have sex with judges all the time.

The female prosecutor indignantly refused to answer the question. After the case was resolved—I won’t spoil it, but the name “Perry Mason” comes to mind—the two prosecutors made up over a drink. She said that she would have never slept  with “Ray” (the dead judge–when he was alive, that is), but that she remembered reading “in some old document” that we all had “unalienable rights,” she believed one of them was “the right to be respected by your fellow man.”

There is no “right to be respected.” The Declaration of Independence, the “old document” she referenced, lists three rights only, though they are broad ones: life, liberty and the pursuit of happiness. None of those encompass a right to be respected. The speaker, Anna Valdez (played by Monica Barbaro, a Latina dead ringer for Jill Hennessey, who played the equivalent “Law and Order” role for many years), is a lawyer, and should understand what a right is. It is a legally enforceable guarantee of an entitlement to have something, seek or obtain it,  or to act in a certain ways. As a lawyer, she must understand that this is different from what is right, just or honorable. Her statement, coming from the mouth of a character with presumed expertise and authority, misleads much of the public, which is constantly getting confused over  the difference between Jefferson’s use of “rights” and what is right. So do journalists and, sadly, too many elected officials.

I know that Valdez is just an actress, and would read the line,”Legally, we can shoot someone it we know he is a Nazi” if it was in the script, but Wolf and company have an ethical obligation to avoid putting the wrong facts in influential characters’ mouths. If, for example, he had one of his doctors in “Chicago Med” tell a patient, “The best way to cure a child’s headache, and few people know this, is to have the kid drink four shots of whiskey, and hit him sharply on the forehead with a hammer,” this would be wildly irresponsible. While it is right to give a base level of respect to all human beings, there has never been a genuine right to be respected. Nor should there be. People ought to be respected as human beings, but respect beyond that must be earned, just like trust. Valdez might “believe” that her imaginary right is included in the Declaration, but she is dead wrong.

Valdez and Wolf weren’t through confusing everyone out in TV land, though. She then told DA Peter Stone (played by Phillip Winchester) that there was another right “referenced by that dusty old document” at stake.  “Privacy,” Stone replied solemnly.

Wait, what?  That same dusty old document? Privacy isn’t referenced in the Declaration—this time she doesn’t even say “I believe”—and no one has argued that it is. Now she’s talking about the Constitution, and reinforcing another piece of misinformation running amuck in our maleducated populace. These are two different documents, and any lawyer who conflates the two is by definition incompetent.

Moreover, even the Constitution doesn’t “reference” the kind of privacy she’s talking about. The right to privacy is alluded to in the Fourth Amendment, which states that

‘The right of the people to be secure in their persons, houses, papers, and effects,against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

That doesn’t guarantee a right not to have to answer questions about one’s personal relations when they involve professional ethics and might affect a criminal prosecution. That right just doesn’t exist.

The U. S. Constitution contains no express right to privacy. The Bill of Rights, however, reflects Founders’ concern for protecting specific aspects of privacy: privacy of beliefs (First Amendment), privacy of the home against demands that it be used to house soldiers (Third Amendment), and privacy of the person and possessions to be free of unreasonable searches (Fourth Amendment). The Ninth Amendment states that the “enumeration of certain rights” in the Bill of Rights “shall not be construed to deny or disparage other rights retained by the people,”  but whether there is a “reference” to privacy there  is a matter of continuing and unresolved debate. Justice Arthur Goldberg argued that it was in his Griswold concurring opinion, but that’s just one opinion, and not even in a majority holding.

Over time, the Supreme Court has broadly read the “liberty” guarantee in the Fourteenth Amendment to define a right of privacy that includes decisions about child rearing,  birth control, marriage, sexual activity between consenting adults and termination of medical treatment. But privacy defined as the right not to have to answer questions about a possibly conflicting and unethical relationship that compromises the justice system? Nope. It’s not in the Constitution, not referenced in the Constitution, and is never going to be recognized.

Let’s summarize, shall we?

In the final five minutes of “Chicago Justice,” the show’s “lawyers” informed the public that a “the right to be respected by your fellow man” was referenced in the Declaration of Independence (NO), that there is such a right (NO), that a right of privacy was referenced in “the same old document” (NO), that the right of privacy includes not having to explain a possibly improper relationship to your boss (NO); that either the Declaration or the Constitution governed supervisor-subordinate relations in a professional context (NO) and, finally, that the Declaration of Independence and the Constitution were the same “dusty old document” (Nononononononoooooooooooooooooooooooooooo!)

When Dick Wolf gets around to “Chicago Ed,” I strongly recommend having your kids watch “The Walking Dead” instead.

8 thoughts on “Chicago Justice, Rights, And Pop Culture Malpractice

  1. Whoever does Wolf’s legal research needs to be fired. It should be noted, btw, on an earlier episode of Law and Order, which exists in the same universe, that Fred Dalton Thompson, as Manhattan DA Arthur Branch, specifically pointed out to Sam Waterston’s Jack McCoy and Elizabeth Rohm’s Serena Southerlyn that the word “privacy” appears nowhere in the Constitution, so Wolf’s crew knew what was going on at one point.

    I think Wolf was running out of ideas, so with this new show he is going back to what he knows best, recycling plots and characters from Law and Order. Monica Barbaro’s Anna Valdez appears to be, as you point out, very much a retread of Jill Hennessy’s Claire Kinkaid, young, eager, idealistic, perfectly OK with sleeping with her superior or mentor, etc. Philip Winchester’s Peter Stone is not just a retread, but THE SON OF Michael Moriarty’s pain-in-the-ass, idealistic, perfectionist, grandstanding Benjamin Stone, retconned in because throughout four years Ben Stone never made reference to having a son. As far as I remember he was divorced and made a reference or two to a daughter, but his work was his life.

    This isn’t the first time the “Wolfpack” has thrown logic, reality, and facts out the window to make a story work, either. The premiere CJ episode saw three attorneys miss a key piece of evidence until after a police officer had entered a guilty plea, at which point he was exonerated, which would have left them all with egg on their faces professionally in real life. Chicago Fire saw a vindictive deputy district chief instantly reassign every firefighter and medic at Firehouse 51 because he was angry at the battalion chief, which in real life would have seen a major labor grievance filed the next day, not to mention firefighters being immediately assigned as dispatchers (requires 3 months’ training at a minimum), showing up at fires when they were not assigned (would get you sent home) and going John Wayne and fighting a blaze alone (against nationwide regulations and a BIG no-no). Let’s not even TALK about Chicago PD, where Sergeant Voight and his team regularly beat and torture suspects and have fired their weapons more in one season than most officers do in their careers.

    • Have they specifically said that Stone is the son of Ben? If so, I missed it. Murray Stone was also the name of the hero lawyer in the 70’s series “The Law,” starring Judd Hirsch.

      • Yup, several times, including in the premiere, where his opponent is Richard Brooks as Paul Robinette, from way back in the first few seasons, and Peter Stone stumbles a bit introducing him to Anna as “Mr. Robinette” out of force of habit from his dad Ben Stone introducing them when Peter was still a kid and Robinette an adult.

          • Yw. I guess a few of us long-term L&O fans did. Peter and his dad apparently have a somewhat strained relationship, but the last thing you see him do in that epi is dial his phone and say “Dad? It’s me…” leading me to believe that will be part of the storyline as things go forward, and maaaaaaybe we’ll see Michael Moriarty again.

  2. Agreed on all points here. As a writer, I find this kind of laziness inherently unethical; the fact that it misleads about important political issues of our time makes it even worse.

    I’m going through “The Good Wife” right now, which I find riveting, but which has presented some pretty hugely unethical conduct from the majority of its lawyers so far. I’m excited to go back and read your analyses of that show.

  3. Wolf probably learned this interesting bit of history in 5th grade at good old PS 129, because his teacher didn’t know the difference between the Declaration and the Constitution either, and what the ‘right of privacy’ is. This mistake should have been picked up by everyone over age 12 (assuming they were watching…) Alas, I bet 99% of adults watching didn’t catch this inexcusable mistake. Who said we were a nation of morons? And why is that? No one educates, not even those like Wolf, who, with just a bit of care for fact over drama, could actually do some.

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