How HBO's 'The Night Of' Was Inspired By One Real-Life Lawyer's Encounters With Crime and Punishment

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Peter Moffat

Peter Moffat was a leading British criminal defense attorney before he tossed aside his wig and gown in order to write.

Way before he wrote the British TV drama Criminal Justice — and before that show became the basis for HBO’s acclaimed new mini-series The Night Of — Peter Moffat embarked on a career as a criminal defense lawyer.

After graduating from the London School of Economics, Moffat, 53, donned a white wig and gown and did a stint as a barrister (the British term for a trial lawyer), where he became familiar with the inner workings of the justice system — not to mention of criminal minds.

Moffat, the Scottish-born son of a military police officer, divided his time growing up between boarding school in England and the various countries where his father served, ranging from Yemen to Germany to Northern Ireland.

He began his writing career with an episode of Kavanagh QC (1999); went on to tackle Britain’s most famous espionage ring in Cambridge Spies (2003); authored the Benedict Cumberbatch TV movie Hawking (2004); and then scored a megahit with 2008’s Criminal Justice.

Now he shares executive producer credit with Steven Zaillian and Richard Price on the American version of that series, titled The Night Of, which follows a taxi driver's college-age son as he goes through the criminal justice process after he's arrested for murder.

Moffat also has a new mini-series, Undercover, starring Sophie Okonedo and Adrian Lester — about a black prosecutor who discovers her husband has a secret past — which debuted on the BBC earlier this year. (American rights have not yet been sold.)

The married father of two spoke to THR from his home in London.

What was the toughest case you took on as a lawyer?

A big gang trial, a really vicious crew. There were nine defendants all belonging to this gang, who were a really vicious mob and pretty cynical about how to manipulate everything about the system. They were on trial for kidnapping and torturing two young kids.The reason they were arrested is that one of the victims jumped out of a [second]-floor window, through the glass, to get away. I knew the gang leader from representing him on a much more minor thing.

How did you go about defending that group?

Everybody had separate representation. That’s really important. It was a big trial, ran for four months. My guy got off — rightly, on the evidence — while everybody else went down.

Does the justice system work?

We have an adversarial system [in England] — like you do — which isn’t interested in arriving at the truth. It’s narratives that matter in a trial. The best story, the most compelling story, wins. I used to write out all of my cross examinations in advance, and if you do it really well, if you’re in complete control of everything, then the answer you get and the following question will always make sense. It’s about getting what you want from a confrontation, which is close to David Mamet’s definition of all dialog: That in any scene with two people, they both want something and usually it’s not the same thing — and that’s dramatic tension.

Do you truly believe that the best narrative is going to win in a trial?

Of course, there are sets of facts, and you deal with them. But nobody is saying, what is the truth? There is no investigation by the court as to what happened. You’re just telling different stories. When any barrister meets a client, there are things you do not want to hear from them because they don’t help with the coherence of your account to the jury. When [The Night Of’s] John Turturro says, “I really, really don’t want to be stuck with the truth,” that’s right. But — and this sounds counterintuitive — the system really works. It’s rare that somebody innocent is convicted.

Is there any case where you became emotionally involved?

I always became really emotionally involved. I would read cases on paper and think, “This guy’s a vile human being” — and six hours into the trial, you really care that they get off. I was unable to remain as objective as some people think I’m supposed to be. But your only real question as a lawyer is, “Does the system work OK?” If the answer to that is yes, then you do everything you can for the person you’re representing.

How did you switch from law to writing?

I was given a six-month fraud case in [the city of] Southampton. I thought, “This is really hard and I can’t stand the idea that I’m not going to be able to write every day.” My wife [attorney and writer Leonora Klein] was also a barrister, and still is. So I was able to make a really selfish decision and just chuck it in 1998. I was just a bit over 30. I wrote a play, Iona Rain, and entered it for a writing competition. That and an Abi Morgan play [Morgan wrote 2011’s Shame] were runners up.

What was the play about?

 My experience at boarding school from the age of eight. Which is a terrible thing to do to any child, to send them somewhere where nobody loves them at eight years old. It’s close to a form of child abuse, actually.

Have you ever told your parents that?

We’ve talked about it. They felt there wasn’t a choice. My dad was in the [military]; everybody in the army did it, because you were moving around so much. My mom told me later that she used to wear sunglasses for about four weeks after I went back to school at the end of the holidays, because her eyes were so red from crying.

What did your father do?

He was colonial police in Tanganyika, and then in the army he was a military policeman, which meant we moved every two years — Aden [Yemen], Hong Kong, Germany. We were in Northern Ireland at the height of “the Troubles.” My dad arrested Bobby Sands [the Irish Republican Army member who later died in a hunger strike]. Now I’m doing a series for the BBC about military policemen in Aden, The Last Post.

What led you to write Criminal Justice, which has been adapted as The Night Of?

I hadn’t seen anything that showed what it would be like to be arrested and taken through the whole of the process of criminal justice. I’d been inside police stations, across tables from clients in trouble, in prisons. I’d met jailers and police officers and everybody that’s in and around the system. That gives you a lot of choices. I know about mobile phones up people’s bottoms. I know what a penile swab is and what your rights are in relation to that. It felt really urgent, even though there’s so much crime drama. If you came down from Mars and watched television for the first time, you’d think that’s all human beings are interested in.

How much additional research did you do?

I spent a lot of time with the police in [the town of] Southend. And then I spent time talking to Erwin James, who’s a Guardian journalist who was convicted for a murder, ran off and joined the Foreign Legion. He told me how much prisons inmates are in control of the prisons, and what a hierarchy there is: There are important people in prison who get all sorts of favors and different treatment from other inmates and prison officers, because they’re the most serious guy in there.

In Criminal Justice, the young man who’s arrested is a Caucasian played by Ben Whishaw. In The Night Of, he’s a Muslim played by Riz Ahmed.

That’s a big difference. It started with [setting the story in] New York and Steve Zaillian saying, “Taxi drivers in New York are usually not white. What could the taxi driver be?” That adds a whole dimension, which is very exciting and relevant. There are a large number of people who have died in police custody, and a large percentage of those people are not white, and there are almost no criminal prosecutions brought against white police officers for the deaths of black men.

Do you find much racism in the British police force?

It’s a really hard job. But I think there’s a huge amount of cultural racism inside [London’s] Metropolitan Police, in particular.

Is it better or worse in America?

It’s out of control. The thing everybody in the States who isn’t white – and is male – tells me is, they’ve had that talk with their parents about what you do when you find yourself in a confrontation with the police. It’s a conversation every black kid is having. And that’s just a terrible indictment of a way of being.

You’d hope society might be more tolerant of diversity.

I don’t think we’re a tolerant society. We’ve called ourselves tolerant without deserving it.