From one end of the buzzing courtroom a clerk belts out, “Docket ending 323430, the people versus John David Myers, murder in the second degree.” Everyone in the courtroom recognizes the name: The guy is a big-time Broadway composer. Now he's in a jam because of the young woman found in his apartment slain by repeated stab wounds.
“I assume your client can make substantial bail,” Judge Elizabeth Mizener, who admits to once having been a fan of Myers, says to the defendant's lawyer. But the assistant district attorney jumps in. “We're not consenting to bail, judge,” proclaims ADA Serena Sutherlyn. “The people request remand.”
“His face is recognized all over the world! Where's he gonna go?” asks Lisa Cutler, the defense lawyer, incredulously. Up steps the composer's psychiatrist. “Mr. Myers is heavily medicated. He can't function –”
“He confessed to brutally slaughtering a woman he just met!” Sutherlyn interjects. Mizener had heard enough: “I'm remanding the defendant.”
Then the scene shifted to the office of Chief Assistant District Attorney Jack McCoy (played by Sam Waterston) for a little snippy dialogue among the psychiatrist and the lawyers— standard fare for the 17 years during which “Law & Order” has turned millions of Americans into experienced backseat lawyers.
Most courtroom dramas don't even mention bail, let alone show the arraignment at which it's set. Its inclusion in “Law and Order” reflects, on one hand, the show's long standing effort to have the feel of a documentary. On the other, it's a useful dramatic tool for the show's writers.
“The arraignment scene, which is usually where the bail application is, is usually the top of act three. It comes after the important middle commercial break,” says William Fordes, a former Manhattan assistant district attorney who has written for the show since its launch. The bail hearing transitions the episode from the “police who investigate crimes” to the “district attorneys who prosecute the offenders.” Says Fordes: “The bail application, in the show as in real life, allows us to talk about the strength of the case. If we need a dramatic twist, we can diminish the strength of the case against the defendant and raise the possibility that he will escape.”
The “Law & Order” bail scenes move a bit faster than authentic arraignments and strip out much of the legal jargon. “What happens in five minutes on ‘Law & Order' probably takes five years in real life,” says Suzanne O'Malley, who has written several episodes. The writers try to avoid too much repetition of what the viewers already learned. Fordes says: “It can be colossally boring.”
So what are the motivations for McCoy's bail requests: Getting the defendant to show up in court, protecting public safety or squeezing the accused into a plea deal? “All three,” says Fordes. “Obviously, if someone is rotting in jail, you have more leverage on them than if they're sitting in their townhouse on 15th Street enjoying a martini.” (Tell that to Charlotte Swan, lawyer for Dr. Charles Blanchard, accused of infecting his former lover with SARS, who in the episode “Patient Zero” tells Sutherlyn, “Guilty pleas are only for the guilty.”)
Bail can have a major effect on real life cases. Do the outcomes of the bail hearings matter on the show? “It depends on the episode,” says O'Malley. “In the end a great percentage of the time our guys win because that's how the audience likes it.” Waterston has told O'Malley of a time he got into a cab only to be berated by the driver for losing a case. “Fans of the show really do get on him,” she says.
As the show moves into season 18, the bail hearings are going to fade. “It's sort of lost its pop,” says Fordes. “We're gonna get away from it a little bit.” They can do that on TV.