Tuesday, December 9, 2008

Reality TV?

Hill Street Blues on steroids. That's how we would describe The Shield, which recently ended its seven season, 88 episode run. Shot documentary style with mostly hand-held cameras, The Shield definitely pushed the envelope for basic cable in its gritty and sometimes gruesome content. It provided more compelling television content than the Sopranos in its latter stages, even though The Shield aired on the FX network and never achieved the audience of the HBO series.

If you're unfamiliar with The Shield, it followed the activities in and around an inner-city police station house known as "the Barn," situated in the fictional Farmington district of Los Angeles. The creator of The Shield apparently got his inspiration from the Rampart Division police scandal in LA.

The show was exciting and intense. But keep in mind that the viewer has to suspend disbelief, because the whirlwind of events in the Barn during one eight-hour shift might take months or years to resolve, even if they ever occurred in the real world.

The excellent ensemble cast was led by a bulked-up Michael Chiklis who portrayed the rogue detective and master manipulator Vic Mackey, the head of the corrupt but effective anti-gang "Strike Team." Mackey was the ultimate take-no-prisoners, anti-hero who managed to scheme and navigate the gauntlet of the streets, the law enforcement bureaucracy, and his complicated family life, and who among other things killed a fellow officer who was going to blow the whistle on the Strike Team's crooked dealings. This act, occurring in the very first episode, and the ensuing cover up, in part drove the show and the relationships of the original Strike Team members and their adversaries on both sides of the law for its entire run. As the Wikipedia summary puts it, the Mackey character "steals from drug dealers, beats and tortures suspects, and has committed murder more than once." To say that the show posed legal, ethical and moral issues is putting it mildly.

Unlike the gripping intensity of most episodes, the series finale seemed a little flat (as these finales often are), leaving a few loose ends in the various plot threads. Moreover, despite Internet speculation, the expected bloodbath never materialized, leaving most of the characters intact--raising the possibility that The Shield could be brought back as either a theatrical or TV movie. In fact, there has even been some talk of a spin-off featuring Det. Dutch Wagenbach, the barn's somewhat awkward but earnest criminal profiler and "Everyman," as convincingly portrayed by Jay Karnes.

Over the run of the show, the Strike Team found itself the subject of numerous ongoing internal investigations (no surprise there). Although the team managed to wriggle off the hook time and again, the handwriting was on the wall that Mackey was going to be thrown off the force. In the final season, Mackey wormed his way into a job with Immigration and Customs Enforcement (ICE) by orchestrating the bust of a major Mexican drug cartel. As part of this arrangement, ICE also gave him full immunity for all of his past acts, albeit without knowing the full ramifications of said deal. After signing the apparently binding deal, he put all his transgressions (a long litany) on tape in the ICE offices, including the murder of the fellow officer.

While acknowledging that it's just an over-the-top (but very watchable) TV show, this turn of events raised a number of questions. First, we wondered whether in general, such a blanket immunity deal was plausible or even feasible in the real world? And would a murder confession vitiate any immunity agreement? Do the feds have the authority to "shield" Mackey or his cohorts from state crimes? Could Mackey's recorded statements be used as evidence against the other surviving member of the original Strike Team, Vic's loyal foot-soldier and usually stoic "partner in crime," Det. Ronnie Gardocki (David Rees Snell), who was busted by the LAPD in the final minutes of the series finale.

We asked several expert criminal law bloggers what they thought about how this immunity arrangement might or might not affect the prosecution of either of the two Strike Team detectives.

Kent Scheidegger of the Crime and Consequences blog told us that "An immunity agreement with a federal agency cannot confer 'transactional immunity'--a complete exemption from prosecution--for a state crime. There may be limitations on use of the person's statement, both directly and derivatively, but if the state authorities can produce evidence from demonstrably independent source, they can go ahead."

Attorney Michael Kraut who writes the Los Angeles Criminal Defense Attorney blog responded that "The short answer is ICE is a federal agency and they my not grant state immunity, only immunity for federal crimes. Murder is a state crime unless the victim is a federal agent."

LA attorney Dmitry Gorin suggested that the authorities "would almost never do this" but noted that one officer in the Ramparts scandal "got a deal to implicate his former partners with understanding that he would not be prosecuted for the crimes he confessed to." This officer was prosecuted on other charges, however, but received a lesser sentence.

And Joel Jacobsen of the Judging Crimes blog noted that "in general terms what you describe isn't rare. As for the partner getting blindsided that the other criminal made a deal with authorities first--that happens ALL the time. You don't want to be the last one standing when the music stops. Prosecutors try to make deals with the less-culpable criminals in order to nail the more-culpable, but it's sometimes hard to figure out in advance who's who. Vic's statements could be used against his ex-partner/fall guy only if Vic himself testifies in court. That's the holding of 2004's Crawford v. Washington. No, a murder wouldn't vitiate the immunity agreement, if it's really written as broadly as you suggest. Judges would enforce the deal as written. (That's why immunity agreements aren't, or shouldn't be, written so broadly.) The feds couldn't shield Vic from state prosecution. They don't have that power. Without researching the matter, I think it's doubtful that he could prevent state prosecutors from using the immunized statements as evidence against him, but it's not out of the question."

In any event, The Shield DVDs are highly recommended, especially for the show's rich characters and dialogue, with the advisory that the content is for adults only.