It’s Not HBO. It’s TV.

Fontana watching a taping of The Jury, May 18.Photo: Craig Blankenhorn

James Yoshimura was a struggling playwright in 1988 when his theater buddy Eric Overmyer invited him to a party, a housewarming at the shiny new apartment Overmyer had bought with television money he’d made in Los Angeles. As Yoshimura remembers the incident, “The door flew open, and a guy stands there with a ponytail, drunk as a skunk. And me and my friend, we weren’t too sober, either. And I don’t know who this guy is, and he comes up to me and goes, ‘You’re one of these snobby theater types. You look down your noses at TV, don’t you?’ ”

Yoshimura went on the defensive: He liked television just fine. “And I’m thinking, He’s a little bit weird, and if he keeps this up, I’m going to hit him. And then he starts going, ‘Oh, you slanty-eyed bastard.’ And I’m thinking, This isn’t my party, this is Eric’s. I shouldn’t make a scene, I should walk away.”

Yoshimura retreated to the balcony to smoke. “And here comes the drunk boy with this little goddamn Parodi—at that time he wasn’t smoking Cubans, he didn’t have that kind of money—he had these stinky little things,” Yoshimura says, laughing, “and he sees me there and he gets into this thing again like, ‘You theater people, you always make fun of TV. I love TV, that’s my life.’ I don’t know who the fuck this guy is. And I think, If he keeps this up, I’m going to push him over the balcony and say, ‘Hey, whoever he is, he just slipped!’

The next morning, Yoshimura sobered up. He called Overmyer and asked him who “that asshole” was. “And he says, ‘Funny you should ask, because that asshole just called me a few minutes ago and said, “Who is that asshole?” ’ He says, ‘That’s Tom Fontana’ ”—a writer famous for his work on St. Elsewhere. Fontana had called to ask for a copy of Yoshimura’s plays. Over the next few years, Fontana ended up getting Yoshimura job after job, mentoring him in the art of television writing and getting him paid. “He sat me down and broke it down for me: Your eyes need to be like a camera; you need to see these people.”

Yoshimura is just one of the many playwrights and theater people who’ve found their career in Fontana’s generous, pugnacious wake. In an often cutthroat industry, Fontana’s famous for his loyalty to old friends, repurposing talent time after time with a mobster’s sense of family. His series have gained a reputation for a visceral theatricality unusual for TV—especially the smartly subversive cop show Homicide: Life on the Street and HBO’s prison drama Oz. He’s also unafraid of controversy: Witness his most recent TV movie for HBO, Strip Search, an alarmingly prescient polemic about military abuse, starring Maggie Gyllenhaal and Glenn Close, that interweaves an interrogation in China with one here—each using the same Kafkaesque script. Fontana started writing it after 9/11 as his response to the Patriot Act, but though HBO initially supported the production, directed by Sidney Lumet, Strip Search premiered in April without fanfare—and, curiously, the network removed the link to it from its Website. Within a month, after Fontana had reconciled himself to the movie’s having disappeared, and the revelations of U.S. military abuse in Iraq had emerged, HBO hastily revived Strip Search three times in one weekend.

But even as Strip Search was going through such difficult birth pangs, Fontana was busy midwifing a different take on the criminal-justice system: his first major foray into network television since Homicide. The new series, created by Fontana and his creative partner, director Barry Levinson, is The Jury, a legal whodunit with a smart theatrical center. Premiering on Fox on June 8—the network’s sweetheart show for its innovative summer season, which worked beautifully last year for The O.C.—The Jury may well be the great hope of TV this year; a show more commercial than Fontana’s previous network outings, and therefore more likely to survive. A sort of Trojan horse for his gritty moral dialogues.

God knows, television could use it. While the late nineties witnessed a renaissance in TV writing—from The Sopranos and Buffy the Vampire Slayer to one-season wonders like Freaks and Geeks—that golden era appears to be on the wane. Low-budget reality shows, a cheap gamble for networks, have colonized the best prime-time slots. The rest of the network grid is dominated by “procedurals,” those wonderfully addictive, but by nature formulaic, iterations of Law & Order and CSI. Series with rougher, more asymmetrical shapes are tougher to place than ever, a fact Fontana knows well from his struggles with Homicide, a critics’ darling that never quite broke through in the ratings. And Fox in particular has become notorious for producing groundbreaking programs, then smothering them in the cradle: Wonderfalls, Action, Andy Richter Controls the Universe, The Tick, and Firefly are all recent casualties.

Yet The Jury seems poised to break through this stranglehold. It features a gimmick that’s at once cunning and obvious: a focus on the civilians instead of the lawyers and cops. Like a police interrogation, a jury room is a playwright’s dream setting, notes Fontana: “Every week, twelve different points of view.” The series opens with the attorneys’ summations; then viewers watch the jury argue their way toward a verdict. Interwoven with these deliberations are flashbacks to the trial, lawyerly negotiations and blips of the crime, each webbed back to the jury’s perspective. After the credits, viewers get a witty O. Henry twist: the chance to see the crime itself and find out whether the jury got the verdict right.

The series has a natural appeal for Fox. As with Law & Order, The Jury is an anthology program: Each episode is a separate entity, and thus easy to syndicate. In contrast to Homicide (which Fontana jokes had “the ugliest cast on television”), The Jury features a set of glossy, Fox-friendly faces as the lawyers, including Shalom Harlow, Billy Burke, and Anna Friel. But by next season, the new series will be bumping up against a decidedly similar concept: Law & Order: Trial by Jury, the latest spinoff from Dick Wolf’s empire, produced by none other than Fontana’s old friend Eric Overmyer. To longtime viewers, it might presage a replay of the battle Fontana faced with Homicide, which throughout its run played artsy underdog to the buzzy NYPD Blue. And Fontana is already talking in ways that might give a network executive pause: “Conventional wisdom is, make the same show every week. And that’s not the kind of television that Barry and I want to do.”

But right now, Fontana isn’t worried about the future: He’s arm-deep in the problem-solving stage, egging on his writers, tweaking the opening credits. As he’s done for 30 years, he wakes at 5:30 a.m. to write. “I love to write,” he says. “I’m one of the few writers I know who doesn’t complain about it. I complain about everything else.”

“Okay, I’m not going to say that Yosh embroiders the truth. But I will say that he has a very vivid imagination!” Fontana says, when I relate Yoshimura’s story of how they met. “Basically, I had gone off to do St. Elsewhere and I came back and Eric had a party and Yosh was there. Now, Yosh was kind of on the skids. He was drinking a lot. And tended to become very emotional. And we were having a relatively calm conversation about this or that, and he suddenly went off on this rant about television! Here’s the only defense that I have that my version of the truth is closer to reality than his. He says I was screaming and calling him names and stuff. But the very next morning, I called Eric Overmyer up and said, ‘Could you get me a copy of this guy’s writing?’ … And I called him up and gave him a job!”

We’re sitting in Fontana’s office in the West Village, an airy atrium at the back of a converted three-story Dutch revival, a former public library that during the sixties was a setting for psychedelic “happenings.” Now the main floor houses the Levinson/Fontana Company. On the lower level, there’s a full editing suite. The top floor is Fontana’s showplace apartment, filled with the massive library he’s collected over the years. His office is stuffed with TV memorabilia: a St. Eligius statue, a Patriot Act game created by People for the American Way to publicize Strip Search, and a Drew Carey bobblehead. (Fontana’s girlfriend is Deborah Oppenheimer, an executive producer of The Drew Carey Show, who produced the Holocaust documentary Into the Arms of Strangers.) There’s also a framed copy of the Bill of Rights. It’s the ultimate New York Batcave for creativity.

“I will say this, it’s not that I don’t have a television writer’s chip on my shoulder,” Fontana acknowledges. “But invariably, somebody will say, ‘What do you do for a living?’ And I will say, ‘I’m a television writer.’ And they say, in this condescending way, ‘I don’t watch television.’ Then within ten minutes, they are talking about Sex and the City! I mean, it is the most hypocritical thing about New York. And I say, ‘What do you do?’ And they say, ‘I’m a mailman.’ And I say, ‘I don’t get the mail.’ ”

Of course, there’s no believer like a convert. Fontana started out as a theater snob himself—a wannabe playwright from Buffalo, one of five kids in a large Italian and Polish family. It wasn’t an especially literary home, but after his parents took him to a performance of Alice in Wonderland, Fontana’s tiny mind was blown, and he immediately went home and began writing dialogue: all sorts of plays, including a “sordid Peyton Place” potboiler written when he was 11, in which characters got pregnant without having sex. He also watched a fair amount of television, particularly tough-guy melodramas like The Defenders and Naked City. “I was drawn to one-hour dramas from an early age,” he says, laughing. “Which, when I think of it now, sounds ridiculous. But I was like, ‘Captain Kangaroo? Fuck him! Let’s see what E. G. Marshall’s up to.’ ”

But Fontana dreamed of Manhattan. He still cherishes a postcard his parents sent him of the Prometheus statue at the RCA building. At 14, he traveled twelve hours downstate by bus, accompanied only by his 16-year-old brother. “Here is my first memory of New York: We arrive at 6:30 a.m., and we go up to the street, and while I’m waiting for my brother to figure out which direction we’re going, this sad-looking prostitute comes up to me and says, ‘Oh, hi, are you looking for some fun?’ And I said, ‘Yeah!’ ” He waggles his eyebrows, Groucho-style. “Now I had no idea what she was talking about. But she put out her hand, I put my hand in her hand, it was a very touching, wonderful, romantic moment. And I was gonna walk off with her—and all I remember is my brother Charlie, this hand grabbing the back of my shirt, and me flying through the air backwards. And I was like, ‘Wait! She wants to have a good time!’ ”

Fontana attended a Jesuit high school, then studied theater at Buffalo State. Soon after he graduated, he ran off to Manhattan as planned, hoping to make his living as a playwright. “I failed at it,” he says. “From 1974 until I did television, I starved.” Those early plays were terrible, he claims, citing as the worst a college experiment titled Donut Go Gentile Into That Good Knight. But in 1978, he got his serendipitous big break: He joined the Williamstown Theater Festival in Massachusetts, signing on as “general factotum” to the late theater guru Nikos Psacharopoulos.

“I say, ‘I’m a TV writer,’ and they say, ‘I don’t watch TV.’ I say, ‘What do you do?’ And they say, ‘I’m a mailman.’ And I say, ‘I don’t get the mail.’ ”

Williamstown was a bohemian wonderland (“Everybody fucked everybody”), and Fontana became drinking buddies with a cabal of playwrights, as well as a few bigwigs, including the producer Bruce Paltrow and his wife, Blythe Danner, who had moved to the theater community to wait out the 1981 Writers Guild strike. He met his future wife, Sagan Lewis, wooing her, Lewis claims, by telling the competition that she was celibate. “He fell in love with me at my audition,” recalls Lewis. “I was a really cute person, attractive and young. But I was much too interested in acting to be interested in Tom. He was persistent, though: He wore these red short-shorts he thought would impress me. After a while, I could not stop thinking about this funny, crazy guy.”

Paltrow hired Fontana as a writer on his new hospital series, St. Elsewhere, and the Hollywood success knocked the theater snob right out of Fontana. “He defined the word mentor,” recalls Fontana of Paltrow, who died last year of throat cancer. “He was tough, but he was honest, and he basically taught me how to write for television.” While Fontana hated L.A., he enjoyed riding the crest of a hit. He recalls casting sessions in fellow writer Mark Tinker’s office, where Tinker would startle auditioning actors by heaving darts at what appeared to be an adorable collie sleeping in the corner—in fact a creepily realistic stuffed “sleeping Lassie,” salvaged from the old show.

In the early nineties, Fontana and Lewis got a divorce; among other disagreements, she wanted to move to the mountains, not back to Manhattan. (It seems to have been the most amicable divorce in history: “When you’re young, you don’t know this is the best you’ll ever meet,” she says fondly.) Fontana formed a creative partnership with Levinson, and the two created Homicide: Life on the Street for NBC, based on the book by David Simon. Homicide was by all accounts a chaotic set: a raucous, macho Wild West of a production, filmed in Baltimore. Fontana worked like a madman, rewriting every script. Critics adored the show, but it was a perpetual underdog regularly snubbed at the Emmys. And the network pressed Fontana to tamp down his idiosyncrasies: to hire hotter actors, to stop experimenting with the show’s structure.

When Homicide was canceled after seven years, Fontana hopped onboard the more nurturing environment of HBO, for which he created Oz, the filthiest, most romantic prison melodrama imaginable. His characters were rapists, neo-Nazis, and gang members, and Fontana reveled in the taboo-busting possible only on cable. As usual, he hired many of his old writers and buddies for the show, including Edie Falco, who had first appeared on Homicide. Actor Dean Winters, who played Irish brawler Ryan O’Reily on Oz, met Fontana when Winters and his brother Scott were bartending at Jim McMullen’s on the Upper East Side. Noel, a friend of Winters’, walked in at 2:30 a.m., accompanied by an outrageous figure with “hair down to his butt,” a long beard, a baseball cap, and dark glasses. “I was like, ‘Look, Noel brought his cab driver in for a drink,’ ” Winters recalls. In fact, it was Fontana, who wound up hiring Dean and Scott to play brothers on Oz, and also mentored Dean’s other brother, a poet, into becoming a screenwriter. “Tom is kind of the yardstick by which I measure people: There’s not a fairer, more decent person in the business,” says Winters.

After Oz ended its six-year run, Fontana spearheaded a few failed TV projects. He also wrote TV movies, including a sympathetic treatment of Judas that, in an incident that presaged what would happen with Strip Search, ABC initially buried under pressure from Christian groups—then resurrected when Mel Gibson’s Passion made it suddenly timely. But The Jury marks his true entrance back into episodic network television. It’s a departure in many ways, certainly less character-driven than his earlier series. But it’s also a natural offshoot of Fontana’s long obsession with dialogue, his interest in human conversation as the imperfect engine that produces justice. Fontana’s jurors routinely ignore the judge’s instructions. They get crushes on the lawyers. And in a uniquely self-referential device, they base their opinions on TV shows.

For Fontana, these digressions are at the center of the series. “It’s about how you and I, as ordinary people who don’t know dick about the law, get to decide the fate of another human being. And all of our quirks and all of our past history and prejudices and neuroses come into play, that may or may not have nothing to do with the trial. You know, elements are introduced, people have opinions, people have stories, they remember things, they half-remember things, they say, ‘I read something once, I don’t remember what it was in, but it was very clear.’ Because that’s how we all talk in real life. You know, you go to a bar and have a conversation with somebody, it’s all bits and pieces and fragments of things; it has nothing to do with reality, with facts.”

The Jury is being filmed in Bayonne, New Jersey, on the same soundstage where Fontana filmed Oz. As Fontana and I walk through the set, he points out ghostly remnants of its former life as a maximum-security prison. “This is the hallway from Emerald City to the cafeteria,” he gestures, pointing to the left. “And this was the cafeteria. And this was the ER, and that was the ward.” We pass a dark hallway filled with empty prison cells. “See what I’m saying? It’s like Rome, where you see a wall and then what’s built under it.” We pass by a courtroom that features a painted portrait of a judge. It’s Fontana himself, rendered in dignified oil paint and gazing over his creation.

In the episode they’re filming today, two prosecutors, played by Billy Burke and Jeff Hephner, discuss a case of child molestation. Jake Paltrow—Gwyneth’s look-alike brother, lanky and stooped—is the director, and he and Fontana gaze at the monitor. They’ve decided to play the scene with the two actors tossing a football back and forth. “These should not be revelations,” emphasizes Fontana. “It should just be two guys wasting time.”

And true to Fontana’s television ethos, the producers are already experimenting with the show’s tone and structure—precisely the type of experimentation that got him in trouble on Homicide. While Paltrow’s episode is fairly grim, a week later they’ll be filming “Too Jung to Live,” a comic romp featuring a blonde vixen seducing her shrink in a schoolgirl outfit. Another episode stars a jury made up entirely of actors who starred on Oz, an inside joke typical of Fontana productions, which have included crossovers with Dick Wolf’s Law & Order universe. “The danger with the show is that it is a little more formulaic than the stuff we’ve done,” muses Fontana. “I think instinctively we’re saying we can live within the structure, but within the structure, we want to write a different poem every week. You want to see if there’s really room to fuck around.”

Warren Leight, who wrote the Tony-winning Side Man and now writes for Law & Order: Criminal Intent, judges The Jury’s prospects as excellent, despite what he jokes is a “Battle of the Bands” with the latest Law & Order spinoff. “I mean, networks can always break your heart, but I’d think at this point, it’s a case of ‘let Tom be Tom.’ He’s not unaware of what you need to do to sustain interest on a network.”

Fontana’s jurors ignore the judge’s instructions, get crushes on the lawyers, and base their opinions on TV shows.

“Everyone’s looking for a procedural: Fox certainly is,” adds Tim Minear, a producer of Fox’s quirky hour-long drama Wonderfalls, which the network canceled after only four episodes, despite glowing reviews. Given his experience, Minear could be dubious about The Jury’s prospects, but he, like Leight, suspects that Fontana may have figured out how to crack the code—riding back to network TV with an idea that is smart yet “not so high-concept as to alienate audiences.”

After Fontana finishes up on the set, we drive back to the city along with Jim Kramer, an old playwright friend. Fontana’s heading to a book party at Elaine’s. He’s plugged into a wide variety of these Manhattan social scenes: The week before, he’d dined at Spice Market with Blythe Danner, and the two had cried together and shared memories of Paltrow. A reporter from “Page Six” was sitting at the next table, and she printed an item suggesting the pair were a romantic item—ID’ing Fontana, to his delight, only as a “handsome gray-haired man.” (Jake Paltrow approached him the next day to joke that his father would be “laughing his balls off.”)

As the driver heads toward Manhattan, Fontana ticks off the many projects he’s juggling. It’s a week before Strip Search is due to air, and Fontana is looking forward to the debate he hopes the show will stimulate. The script features Glenn Close as a U.S. official whose interrogation of a Muslim suspect descends from mind games to Oz-level sexual humiliation. “The world caught up to the movie,” Fontana said later, the same day HBO put it back on the schedule. “But it gives me no satisfaction to have it be so timely.” (It may, however, have given him slightly more satisfaction to bump into the New York Times TV critic, Alessandra Stanley, who had dismissed his script in April as “specious and silly,” according to Fontana. A week after the Abu Ghraib revelations, she acknowledged that he had been “completely vindicated.”)

But on the drive, this turmoil is all weeks away. And the pet project about which Fontana is waxing most eloquent is not a TV script at all but a book: his unfinished history of “bad popes.” “Let me give you an example: the absolute worst pope ever!” he explains with an anarchic grin. “In order to become pope, he had the two previous popes killed. He may have, in fact, strangled the pope. When he then decided to put a previous pope who had been his enemy on trial, he dug up the body and dressed him in papal robes and had a trial, at which—surprisingly!—the pope was found guilty. They cut off the two fingers that he blessed people with, and his head, and they threw it all in the Tiber. In the meantime, this pope, this really bad pope, was sleeping with a 16-year-old girl. And had a baby with this woman. That baby became pope, and that pope’s nephew became pope. And he was also the worst pope.”

Kramer and I are laughing like lunatics. The driver exits the Holland Tunnel and starts heading into Soho. “Because he believed he’d been pope before, he thought he got ripped off in an election, so he negated all the ordinations of all the bishops,” continues Fontana. “He backdated his popedom. And then for the priests to be reinstated, they had to pay him tribute. He was a mob pope, he really was.”

Then Fontana attempts to draw the conversation back to his projects, all of which he argued were linked by this theme: the potential in each of us for extreme acts. “What drives a single human being like you or me to such a point? That fascinates me. Because it is in all of us. The potential for that is in all of us. Maybe not my sister the nun, but everybody else.”

“The ultimate thing that I hope The Jury shows is that it’s not a perfect system because it’s people, you know. It’s human beings. But it’s as close to perfect as we’re going to get. At least for now.” He laughs, and the driver heads for Elaine’s. “At least until Ashcroft takes away all our rights. And then we won’t have any worries.”

It’s Not HBO. It’s TV.