United States, Original Airdate April 30, 2000.
This transcript was done by CELESTE.
Disclaimer
We do not own the characters or storylines from The Practice. They belong to David E. Kelley and Twentieth Century Fox Productions. This is a cut and dry transcipt, not a novelisation, and is for entertainment purposes only.
Everyone, including Lucy, is sitting around the conference table. Ellenor is standing, talking.
Ellenor: (Throws file on table) Okay. Pennsylvania Supreme Court turned us down last night, which means we have to go to Federal Circuit Court under what's called a Successor Petition.
Bobby: Just to get the DNA test?
Ellenor: (sits down) It gets worse. Since his last lawyer previously filed a Habeas Petition, under federal law we don't get another chance unless we can pretty much prove that he's innocent, and that his constitutional rights were violated.
Bobby: Wait, wait, wait. We're trying to get the DNA test in order to prove that he's innocent, but we can't get that test unless we prove he's innocent first?
Ellenor: Right.
Bobby: How the hell can that be?!
Ellenor: I don't know, but Stuart Donovan is set to be put to death in 17 days, so that means between now and then we have to somehow prove that he's innocent.
Everyone rolls their eyes at the absurdity of it all.
Jimmy: This sounds worse then California.
Opening credits/commercial
An older gentleman (Arthur Turner) comes through the firm door wheeling in an older woman (Gertrude).
Arthur: Are you Mr. Donnell?
Bobby: Yes
Arthur: My name's Arthur Turner and this is my wife Gertrude.
Gertrude: Hello.
Arthur: I'm afraid we're in a bit of trouble.
Bobby: What kind of trouble?
Gertrude: It's my daughter.
Arthur: We were recently married and my stepdaughter's trying to get the marriage annulled. There's a hearing scheduled for today...
Bobby: (as Lindsay walks by) Mr. Turner, this is Lindsay Dole. She heads up our domestic relations department. Lindsay, this is Arthur Turner and his wife Gertrude.
Lindsay: (to the Turners) Hello. (to Bobby) Bobby, on that lujack matter...
Bobby: I'll handle the lujack deposition. Help the Turners. (he leaves)
Arthur: If they are able to get this annulled, which they are trying to do...
Lindsay: (upon seeing Rebecca enter the firm) Rebecca. (to Arthur) Actually sir, we have an annulment specialist. (to Rebecca) Could you help the Turners? Their marriage is being threatened with annulment. The hearing is today.
Rebecca: I have that lujack conflict...
Lindsay: I'm actually helping Bobby on the lujack matter. Thank you. (to the Turners) Ms. Washington will help you. (she leaves)
Gertrude: This lujack sounds like a really big client.
On to PA. Shot of a plane landing. Next they show Mary Donovan showing Ellenor, Eugene, Jimmy, and Lucy into what I assume is her house.
Mary: I can't possibly thank you enough for coming. Come on, I'll show you the room. We can get started.
They all enter the room and are shocked to see the walls covered with photos of the victims' dead bodies. Everyone has a mildly disgusted look on their face.
Lucy: Oh my god.
Mary: Oh, sorry. I don't even notice those anymore. After 12 years...
Ellenor: I have a meeting with the informant at one. Eugene's gonna see the eyewitness.
Mary: Good luck tying to get the time of day with him. What about the father?
Ellenor: Jimmy is gonna try.
Mary: I can't tell you how grateful I am.
Ellenor: We can't get our hopes up Mary. I keep trying to tell you this.
Eugene: Let's just get to work.
Back in Boston Rebecca is talking to Gertrude's daughter, and her lawyer in the hall of the courthouse.
Rebecca: An annulment is kind of a drastic measure. I, I just thought...
Claire: Where's my mother now?
Rebecca: She's with her husband.
Claire: Her husband? He's nothing but a...
Lawyer: Claire...
Claire: No I'll say my say. (to Rebecca) You're no better then he is, taking advantage of a...
Rebecca: I am not taking advantage of anyone ma'am. And I will thank you not to draw conclusions about who and what I am.
Claire: You're a lawyer. That's all I need to know.
Lawyer: Claire, that's enough.
Rebecca: According to Mr. Turner, he loves your mother very much.
Claire: Oh right.
Lawyer: She lacked the capacity to enter into a contract, marital or...
Rebecca: How do you figure? Duress? What are the grounds?
Lawyer: She has Alzheimer's Ms. Washington. (Rebecca looks shocked). You didn't know this?
Claire: Your client married a woman with Alzheimer's.
In that little break-room at the courthouse (what are these rooms called anyway?) Rebecca is talking to the Turners.
Arthur: So? It's illegal for somebody with Alzheimer's to get married?
Rebecca: Well it does raise some capacity issues.
Arthur: So what's gonna happen?
Rebecca: Well there's going to be a hearing. Mr. Turner you'll have to take the stand. I think they plan on calling a doctor, and then Mrs. Turner, you'll have to testify.
Arthur: No, I won't let her be put through that.
Rebecca: She has to demonstrate to the court that she was competent to get married.
Arthur: If Claire were concerned about her mother's well fair, she wouldn't have stuck her in that home. Now she's not gonna be put through testimony.
Rebecca: I'm afraid that she...
Arthur: Ah...I said no.
Rebecca: Mr. Turner, you hired me to help you. If you plan to keep this marriage from being annulled, your wife will have to testify.
Gertrude: I can do it sweetheart. All I have to do is show them that I'm continent.
Arthur pats her hand then looks at Rebecca. Rebecca gives Gertrude a polite smile.
Rebecca: That's competent.
Gertrude: (chuckles) Yes.
Rebecca: We should get in.
Back in PA, Eugene enters a large mechanics garage and goes to the office in the back where a man, the eyewitness the night of the murder, Mr. Bresler, is. He knocks on the door then enters.
Eugene: Mr. Bresler, I appreciate you taking the time.
Bresler: Yeah, um, like I said, I only got a couple minutes.
They both sit. Eugene pulls out a tape recorder and Bresler nods his permission. Eugene sets the recorder on the desk.
Eugene: You're house is right across from the Kearns?
Bresler: Was. I, uh, got divorced and moved about six years ago.
Eugene: Well, in any case, going to that night, you can be sure it was Stuart Donovan you saw go into that house?
Bresler: Positive.
Eugene: Can you tell me how you happened to see him?
Bresler: I was watching Johnny Carson when I saw his camero pull up. It was, uh, red with big tires and mag wheels. It always makes a lot of noise, day and night.
Eugene: So you actually saw Stuart get out of the car?
Bresler: Yes.
Eugene: Well he said he left around nine o'clock.
Bresler: Impossible. It was between eleven-thirty and twelve. I told you, I was watching Carson.
Eugene: Well, did you hear any screams come from the house?
Bresler: No.
Eugene: You know he's gonna be executed in two weeks.
Bresler: Yes. It's been on the news.
Eugene: Well, given that, is there any chance it wasn't Stuart Donovan you saw that night?
Bresler: Mr. Young, I met the kid a few times back then. He seemed like a real nice boy. I'm not saying he did what they say he did, but he did go in there that night. There's no question about that.
Back in Boston. Arthur is on the stand.
Rebecca: Mr. Turner, how long have you known your wife?
Arthur: Over thirty-five years. I knew her late husband and they knew my first wife.
Rebecca: I guess the question people are asking...she has Alzheimer's.
Arthur: I fell in love with her long before she was stricken with that. Certainly doesn't make me stop loving her.
Rebecca: Okay, but it might stop you from being able to care for her.
Arthur: If that day comes I may have to consider putting her in a home. But that day is not now Claire. I'll tell you THAT!
Claire: (standing up) You don't know what you're talking about Arthur. I would never...
Judge: Ms. Stevens, sit. Mr. Turner, please do not address her.
Arthur: She's upset because I took her out of the home.
Judge: Yes she is. She thinks you married her to gain guardianship so you could remove her from the home.
Arthur: I married her because I love her, and as a person who loves her, I wanted her out of that place. Damn right.
Claire's lawyer (does he even have a name?) stands up.
Lawyer: You snuck a minister into the nursing home where he performed the wedding service?
Arthur: Yes I did.
Lawyer: And you have control of your wife's estate, don't you Mr. Turner?
Arthur: If Claire wanted her mother to be happy, she'd want her to be with me.
Lawyer: She wants her mother properly cared for.
Arthur: And I'm doing that!
Lawyer: She has Alzheimer's, you're a seventy-six year old man with no training...
Arthur: I can do better then they can.
Lawyer: That isn't true. You're ill equipped to provide care...
Arthur: (shouting) I can take care of her!
Gertrude: You, stop it!
Everyone looks over at her.
Lawyer: Mrs. Turner, who is he? What's his name?
Gertrude looks confused and struggles to think. Rebecca stands up.
Rebecca: She is not a witness here.
Judge: No she isn't, but the court certainly would like to know if she can answer the question. Mrs. Turner, who is this man? Do you know him?
Gertrude: (after a lengthy pause) Of course I do.
Judge: Who is he?
Gertrude: (After another long pause) His name...is Arthur Turner. He is my lawfully wedded husband. And I would appreciate it if all of you would leave the two of us alone.
Commercial
Back in PA. Ellenor is at the prison talking with Stuart.
Stuart: I've been having these dreams lately.
Ellenor: What sort of dreams?
Stuart: That I'm asleep and I can't wake up. Then I start thinking, they've already done it. I'm dead and this is what it feels like.
Ellenor: Yeah. (pause) I have a meeting with the informant in forty-five minutes. I really don't expect him to help me, unless he figures there's something we can give him.
Stuart: Okay. Can you make 'em stop with the priest?
Ellenor: I'm sorry?
Stuart: This priest keeps coming to see me. He says it's important that I confess to god before I go.
Ellenor: I'll deal with that.
Stuart: He says it's my only chance for absolution.
Ellenor: I will take care of the priest. Stuart, don't talk to anybody. Not even clergy.
Back in Boston. A doctor is on the stand.
Doctor: Most of the time she's lucid, but she does suffer bouts of both confusion and delusion.
Lawyer: And Doctor, does her condition stand to improve?
Doctor: No. It's a progressive disease. Her cognitive abilities will eventually erode. Probably completely.
Lawyer: What about care?
Doctor: I think she's already at a point where she needs full-time supervision by a professional staff. To entrust her to the care a seventy-six year old man with no training? That's a threat to her safety.
Rebecca: Does she seem to have deteriorated since she left the home?
Doctor: It's only been a month.
Rebecca: I'll ask the question again - Does she seem to have deteriorated since she left the home?
Doctor: No.
Rebecca: When you talk about the welfare or well being of a patient, whether she's happy or depressed, is that a factor?
Doctor: Of course.
Rebecca: And if Mrs. Turner were happier living with Mr. Turner, that is something to consider medically as well, isn't it?
Doctor: It's not the only thing to consider. Given her age...
Rebecca: My question is - Isn't it possible she would be better off living with him, especially when he loves her?
Doctor: The likelihood of him being able to take care of her is so remote...
Rebecca: But if you were satisfied that he could take care of her, she's better off living with him then in a nursing home, isn't she?
Doctor: That's a very big 'if'. But probably, yes.
Rebecca: Thank you.
Back to PA. Jimmy walks up the steps to the Kearns home. He knocks on the door, which is answered by Mr. Kearns.
Jimmy: Mr. Kearns?
Mr. Kearns: Yes?
Jimmy: My name is James Berluti, sir. As I'm sure you know, Stuart Donovan is soon to be executed for the murder of your wife and daughter.
Mr. Kearns: And?
Jimmy: At the risk of you slamming the door on my face, I've been hired by Stuart's mother. If I could, and I know how offensive this must seem, I'd like to ask you just a couple of questions.
Now inside the Kearns house.
Mr. Kearns: I was working the graveyard shift, but I remember before I left my wife trying to calm Alissa down.
Jimmy: Do you know why?
Mr. Kearns: Alissa had broken up with Stuart a few days before, and he was calling her and harassing her. She was pretty upset. I didn't take it seriously though. And when I came home, and saw what he had done to her.
Jimmy: This may be the part that sounds offensive, but can you think of anybody else who may have wanted to harm your daughter or your wife?
Mr. Kearns: Mr. Berluti, I understand as a parent, Mary Donovan will do anything to prevent her son's execution. But you tell her from me that, as a parent, she should understand that I won't feel any peace until the person who raped and murdered my daughter is put to death. And you can tell her I'll see her soon because I plan to be there. I plan to be there for his last breath, just like he was for my wife and daughter's.
Jimmy: I understand you want closure, sir, but if he didn't do it, when they execute him, that's it.
Mr. Kearns: They got the real killer Mr. Berluti.
Back in Boston, Rebecca and the Turners are in the break-room at the courthouse.
Arthur: I don't want her testifying.
Rebecca: Mr. Turner...
Arthur: It ain't hard to get her confused Rebecca. You're just going to...
Rebecca: The Judge has made it clear he needs to hear from her. I'll try my best to protect her, but she has to testify.
Gertrude: Why don't you two stop your fussing? He's not gonna hurt me with everybody watching. Frank's just a big coward when you come right down to it. (chuckles)
Rebecca: Who's Frank?
Arthur: Her first husband. (to Gertrude) Frank's not gonna be there Gertie.
Gertrude: Well then why are we all so worried?
Arthur: Claire's gonna be in there with her lawyer saying you and I shouldn't be married.
Gertrude: (gets teary, looks afraid and confused) Married? Well I suspect Frank will have something to say about that.
Arthur: Frank's dead. You remember that.
Gertrude: (a bit relieved) Oh yes. Just as well.
Back in PA. Ellenor meets with the jailhouse informant. He's led by guards into a room where Ellenor is waiting.
Earl Taylor: Who are you?
Ellenor: I represent Stuart Donovan, the man who's about to be executed on your testimony.
Earl: Don't be laying that on me. Other folks testified.
Ellenor: But your testimony was especially powerful. You said that he confessed to you.
Earl: He did.
Ellenor: Really? Why would he do that?
Earl: Had an attack of conscience I guess.
Ellenor: Seems to happen a lot around you doesn't it? Back in (shuffles through papers) 1988 you were arrested for robbing a liquor store and then you testified that Stuart Donovan confessed and you got a reduced sentence. Then arrested in '91 and '93 on other charges, both times you became a snitch on jailhouse confessions and both times you got a reduced sentence.
Earl: People open up to me.
Ellenor: Stuart Donovan is about to be executed. Do you really want that on your conscience? You are a burglar and an armed robber, but you have never killed anyone. Don't start with Stuart Donovan.
Earl: What do you want from me?
Ellenor: A statement saying that you lied. That he never confessed. The statute of limitation is run on perjury, you won't have to worry about that.
Earl: (after long pause) I'll do it...if you get me a bring-down to County. Curran-Frumhold Facility.
Ellenor: I don't know how I can do that.
Earl: Then we got nothing to talk about.
Ellenor: Earl, a man is about to die!
Earl: No bring-down, no statement. (He leaves, Ellenor looks none too thrilled)
Back in Boston, Gertrude is on the stand.
Judge: The question we have Mrs. Turner, is whether you fully appreciated what you were doing when you took this man for your husband.
Gertrude: The question you have is whether I'm nuts. I can fully appreciate that. (chuckles).
Judge: I need some strait answers ma'am.
Gertrude: Why do I own anybody anything? I didn't see anybody here coming to visit me in that home. All you people care so much, where were you? Where were you Claire?
Judge: Please don't address your daughter ma'am.
Gertrude: Arthur is the only one who wants to take care of me. He's the only one who loves me. Frank didn't
.
Judge: Who's Frank?
Gertrude: He's dead, that's who he is.
Rebecca: Frank was her first husband.
Gertrude: Bang on the head, he's dead. Arthur's idea to say he fell.
Judge: Excuse me?
Gertrude: You wouldn't stop him. (starts crying) The man beat on me.
Arthur: Gertie!
Gertrude: Bang on the head, he's dead.
Claire: (tearing up) Oh my god!
Rebecca: Your Honor, could we take a short recess?
Judge: No, actually. Mrs. Turner, Frank, your first husband, how did he die?
Gertrude: He fell.
Judge: He fell? A second ago you were suggesting that Arthur hit him on the head.
Gertrude: That's what happened. He fell after Arthur hit him on the head...Arthur is the only one who loves me.
Judge: And he killed your first husband?
Gertrude: (collecting herself) You can't force me to testify against him. He's my husband now. I don't have to say a word. Right honey? (Stunned looks all around. Arthur looks as if he wants to do the forehead-slap.)
Commercial
Rebecca walks into the firm where Bobby and Lindsay are.
Rebecca: Well I hope you're happy.
Lindsay: What?
Rebecca: That double lujack, that annulment thing, turns out sweet Arthur's a murderer.
Bobby: Excuse me?
Rebecca: Well it seems Arthur whacked her first husband with a two-by-four, and married her, maybe, so that she could avail herself of spousal privilege and wouldn't have to testify.
Bobby: What?
Rebecca: It doesn't all make sense. The guy was killed fifteen years ago, why get married now? Anyway, the judge annulled the marriage and referred the matter to Helen Gamble. You're helping me on this Bobby, you lujacked me into a murder.
Bobby: I lujacked to Lindsay.
Rebecca: Fine, then you can both help me.
On to PA. Eugene is talking to ex Mrs. Bresler.
Mrs. Bresler: It was a terrible thing.
Eugene: Did you see Stuart Donovan that night?
Mrs. Bresler: No, I was in Florida visiting my folks that month.
Eugene: That month? You were away a whole month?
Mrs. Bresler: Mr. Young, my husband was a drunk back then. There's no mystery here. The reason we got divorced was because I got tired of seeing him passed out every night at nine o'clock. He slept in that chair there for six strait years.
Eugene: Nine o'clock? He said he saw Stuart Donovan between eleven-thirty and twelve.
Mrs. Bresler: Yeah, well.
Eugene: Well what?
Mrs. Bresler: I wasn't here Mr. Young, I was in Florida.
Eugene: Mrs. Bresler, I'm not going after your ex husband. I got a guy looking at death in two weeks for a crime he didn't commit.
Mrs. Bresler: He confessed...
Eugene: No he didn't. (she looks surprised) Is it possible your ex husband was lying about that eleven-thirty business?
Mrs. Bresler: I don't think he would lie.
Eugene: But? There was a 'but' in your tone.
Mrs. Bresler: He could have believed it was eleven-thirty when it may have been nine. By that time he would have been twelve sheets to the wind.
Eugene: Why didn't you tell this to the police?
Mrs. Bresler: I did.
At Mary's house (I assume)
Lucy: (paper in hand, walks over to the others who are seated) Get this - Turns out Johnny Carson had a prime-time special on that night. This guy might have thought it was eleven-thirty when he saw Johnny Carson on when it was really only nine.
Eugene: (takes paper from Lucy) So we have a bogus eyewitness on top of a bogus informant?
Mary: So what happens? They have to order a new trial now, don't they?
Ellenor: (taking the paper from Eugene) No way.
Mary: How can they not?...
Ellenor: Mary, I haven't solved the confession thing yet. He only recants if I get him transferred to county jail, and I haven't a clue as how to pull that off.
Jimmy: (reading something) All we have to do is get him to court.
Ellenor: What do you mean?
Jimmy: The Curran-Frumhold Facility is used as a lock-up for the common-pleas court. If he could get into court on anything, that's where they'll hold him.
Back in Boston, Bobby, Lindsay, and Rebecca are at the office.
Bobby: It was referred to Helen?
Rebecca: And she wants to talk to them.
Bobby: Not a chance.
Rebecca: She implied she might file charges if they don't talk.
Bobby: Let her. It was fifteen years ago. She's gonna make murder on the testimony of a witness with Alzheimer's? For a fifteen year old crime? Good luck.
Rebecca: Well, even so, if we can spare them from being put through a trial.
Lindsay: (just as Helen walks through the door) This can't get prosecuted.
Helen: Don't be so sure.
Bobby: Helen, thanks for calling first. (sees her looking toward the conference room where the Turners are) You're not talking to them.
Helen: Bobby, we already have her recorded testimony.
Bobby: Oh right, you'll be sure to get a guilty with that.
Helen: Apparently the dead husband used to abuse her.
Rebecca: Oh, and that means Arthur killed him?
Helen: Rebecca, she said he did.
Rebecca: Because she has Alzheimer's.
Helen: And because it's probably true. Let me just talk to them.
Bobby: No way.
Helen: Then he'll probably get charged.
Bobby: Well we're not letting you speak to them.
Helen: Please don't make me prosecute a seventy-six year old man.
Bobby: You're not talking to them.
Helen: (walks over to the front door, opens it and lets two police officers in) He's in the conference room.
Rebecca: You got to be kidding.
Helen: If I can't ask her questions here, I will just do it at a PC hearing.
Rebecca: Bobby?
Bobby: No.
Helen: (to officers) Okay, let's go. (They enter the conference room.)
Arthur: What's going on?
Rebecca: Don't say anything Arthur, they're arresting you. We'll take care of it.
Arthur: Arresting me?
Rebecca: I'm gonna go to the precinct with you. Lindsay and Bobby, they'll look after Gertrude.
Gertrude: Where are they taking him?
Arthur: I'm all right Gertie. Don't you worry.
Office: (as they handcuff him and lead him out) You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney...(fades off as they leave. Gertrude cries.)
Good ole PA again. Ellenor is having another delightful meeting with Earl, scum of the Earth...er...informant (Boy does he ever remind me of that Dixie Chicks song ;)
Earl: What do you mean new lawyer?
Ellenor: A private defense attorney.
Earl: What are you talking about?
Ellenor: I'm trying to get you to county, and this is how it works - Your new private attorney will go in asking the state to pay your legal fees. The court's gonna want to know what's wrong with your PD and to get the answer, they're gonna need to hear from you. And for that, you've got to be there. You'll be transported to the Curran-Frumhold Facility to be available for your evidentiary presentation, and then after the hearing you'll be brought back here. This only happens if you give me the statement.
Earl: I will.
Ellenor: Well I need it now.
Earl: Well you don't get it now. Not till after I go to Curran.
Ellenor: This could take some time, Stuart Donovan...
Earl: Well you know what? I suggest you speed it up cause I ain't giving you the statement until after I go to Curran. (ooh, Ellenor looks like she's heard the song too.)
Back at Mary's place.
Jimmy: That's bad. The soonest we can get Earl to Curran is ten days.
Ellenor: If we wait that long and strike out that leaves us with just four days. We can't risk that.
Eugene: Let's still go in tomorrow.
Ellenor: With what?
Eugene: Well, we got the ex wife's affidavit on the witnesses drinking. We got possible prosecutorial misconduct there as well. You can also represent, as an officer of the court, that Taylor's prepared to recant on the confession. I mean that's got to be enough to at least get an order for a DNA test.
Ellenor: I, I would like to go in with more then that.
Eugene: Look, you feel guaranteed you'll get that statement from Taylor?
Ellenor: Guaranteed, from that guy? Hardly.
Eugene: Then we can't waste ten days banking on him. Lets go in with what we got.
Ellenor: (looks around, everyone seems to be in agreement with Eugene) Okay, lets do it.
Boston. Rebecca is in a jail cell talking to Arthur.
Rebecca: I don't know about conviction, but beating probable cause? That's a very low threshold.
Arthur: She got confused about things.
Rebecca: Well, what was she confused about? She said you hit him on the head. Did that come out of nowhere?
Arthur: Yes. The man fell.
Rebecca: They'll probably call her to the stand.
Arthur: No.
Rebecca: This is a criminal proceeding, I can't...
Arthur: I don't want her put in the witness chair again. (Rebecca looks at him coolly) We need to protect her.
Rebecca: Are you looking to protect her or yourself?
Arthur: You think I'm a murderer now, Ms. Washington?
Rebecca: I don't really know you Mr. Turner. You don't strike me as being anything but gentle. But as your lawyer, let me tell you, they already have her recorded testimony from the annulment proceeding. They could probably satisfy probable cause with that.
Arthur: But they couldn't convict on it, right?
Rebecca: If you're to avoid a trial, the best thing is for Gertrude to testify at probable cause and say you didn't do what she said you did, that she was confused.
Arthur: I don't want her to testify.
Rebecca: I don't think you have a choice.
PA, Federal Circuit Court (I assume).
(Note: RJ=judge on the right, MJ=Judge in the middle, LJ=judge on the left)
Lady: Stuart Donovan versus the state of Pennsylvania.
MJ: We'll hear from the petitioner.
Ellenor: (gets up and walks to the podium) May I please the court, my name is Ellenor Frutt and I am joined by my colleagues Eugene Young and James Berluti. We are here representing Stuart Donovan and his petition to get a court ordered DNA test, which test would likely exonerate him of the crime of which he has been convicted, which conviction has him scheduled for death by lethal injection in fourteen days. In order for us to prevail, we must show by clear and convincing evidence that it would be unreasonable for a jury to have found my client guilty under the evidence.
MJ: Before we get to that, you must also show that your client's constitutional rights were violated.
Ellenor: I believe we can make that showing, your honor. One of the key eyewitnesses on the case suffered from a very serious drinking problem. That's exculpatory evidence the state failed to turn over to the defense.
MJ: This drinking problem was relevant?
Ellenor: We believe it was your honor, since the events he claimed to have witnessed occurred at a time of night when his capacity for observation was routinely undermined by his inebriated...
LJ: He was drunk on the night in question?
Ellenor: According to his ex wife, whose affidavit is attached to our memorandum as exhibit D, she said her husband was habitually drunk every night...
LJ: Can she verify that he was intoxicated on this night?
Ellenor: She wasn't there, but she's basing...
LJ: Thank you. You can verify that the prosecution knew of his drinking problem?
Ellenor: Yes. Mrs. Bresler told the police that her husband was typically passed out by nine o'clock every night and that he was quite possibly confused as to the time he said he saw my client's car pull up. This was never brought to the attention of the defense, and accordingly, Mr. Bresler was never cross-examined on it.
RJ: Wasn't the defense free to discover all this?
Ellenor: The fact that the defense was free to discover it does not absolve the state's obligation to turn over all exculpatory evidence. Here they didn't.
RJ: All right council, but we also have a confession in this case...
Ellenor: That confession was tainted, your honor. I spoke to Earl Taylor, the jailhouse informant who secured that confession, and he indicated to me that that statement was false. He also conveyed his willingness to recant it, as you can see from my affidavit, exhibit F. That means we have a false confession backed up by very questionable eyewitness testimony, and these two pieces of evidence represent the prosecution's case in it's entirety. A lie from a jailhouse snitch, and the observations of an intoxicated alcoholic. That's it.
RJ: Plus a blood match.
Ellenor: Well do we? That's why we're here, to seek confirmation of the blood match. There was no DNA technology twelve years ago, but we now have the ability to run a dispositive test, and that's what we're asking for. Stuart Donovan is scheduled for death. We're asking for a test that would take only hours to see if we are about to execute the right man. We're not petitioning that you set him free. We are not asking for a new trial. Just one little test.
Boston. PC Hearing. Gertrude is on the stand.
Helen: You said yesterday that Arthur had hit your late husband over the head. At least that's what you implied. Is that what happened?
Gertrude: I take the fifth commandment.
Helen: You can't take a commandment in here ma'am.
Bobby: (standing up) My client has asserted her Fifth Amendment rights.
Helen: She's not being charged with anything.
Bobby: Doesn't matter, she's allowed to assert her Fifth Amendment rights when there's the prospect of criminal charges.
Helen: The commonwealth has no intention of...
Rebecca: (standing up) She was there the time of the accident, possible accessory charges.
Helen: Your honor, I'd ask the court to grant the witness immunity.
Bobby: She doesn't want immunity.
Helen: Your honor, this is hard enough.
Judge: I agree. Councils, take your seats. Mrs. Turner, I'm granting you full immunity against prosecution. Which means you won't be arrested for anything you say here. I want you to answer Ms. Gamble's questions.
Arthur: Don't do it Gertie.
Judge: Mr. Turner.
Gertrude: He's my husband, I don't have to testify.
Judge: No, your marriage was annulled. (Gertrude gets all teary) All right, council and the witness in chambers. Mrs. Stevens, you too.
PA. DA from the Donovan trial is at the podium.
(RJ=judge on right, MJ=judge in middle, LJ=judge on left)
D: Whether or not a witness had a drinking problem is a collateral issue, certainly not one which would fall...
MJ: Why didn't you tell the defense about it?
DA: I'm not sure we didn't, but assuming we didn't, that goes to impeachment only. That wasn't evidence. More over, knowing of Mr. Bresler's problem, a reasonable jury still could have chosen to believe him.
RJ: What about the confession?
DA: The state still stands by the confession. Defense is now trying to bribe the informant into recanting the statement he gave.
Ellenor: I object to that.
DA: May it please the court, Mr. Taylor contacted our office and informed us of Ms. Frutt's attempts. We outfitted him with a wire. She promised to try to get him transferred to a county facility in exchange for him recanting the statement concerning Mr. Donovan's confession. If you please. (holds up his trusty tape recorder and plays it.) We hear Ellenor's voice:
"This is how it works - Your new private attorney will go in asking the state to pay your legal fees. The court's gonna want to know what's wrong with your PD and to get the answer, they're gonna need to hear from you. And for that, you've got to be there. You'll be transported to the Curran-Frumhold Facility to be available for your evidentiary presentation, and then after the hearing you'll be brought back here."
Ellenor: (looks thoroughly ticked) May I respond to that, your honor?
MJ: I would hope you would.
Ellenor: (walks to the podium) Yes, I offered to help the informant in exchange for him telling the truth. Just as the prosecution was free to play ball with him, offering him a reduced prison term in exchange for his testimony, so too am I free to make a deal. I was not suborning perjury.
DA: Are you suggesting I was?
Ellenor: All I am suggesting is that Mr. Taylor is a liar...
RJ: And better that he lie for you?
Ellenor: This informant is a professional witness. He has gotten three of his own sentences cut down by getting three different confessions. Who's kidding who here?
MJ: All right.
Ellenor: I would remind the court we are not asking you to stay an execution. We are not asking for a mistrial, or a new trial. We are not begging you to commute a sentence or to show leniency. Just a test, one that will tell us the truth. And given the incredibly sketchy evidence that's the basis of his conviction, how can any system, that purports to offer even an appearance of being about the truth, not say yes. The state lost the rape kit. They lost it. They didn't even bother to look for it. We hunted for it, we dug it out, we found it, and now all we're asking is that you test it. That isn't much. It's certainly a lot less work then executing a man.
Boston. Judges chambers.
Judge: I know you love Arthur, but ma'am, I'm sure you loved your late husband too, didn't you?
Gertrude: Oh god no. He hit me, Frank did. Glad he died, truth be told.
Judge: Okay. Did Arthur kill him? Can you take us back to that day?
Gertrude: I don't want to go back to that day.
Helen: We need you to.
Gertrude: Frank was at me like everyday. Yelling this and that. I told him before, "you take your hand to me again"...and he did. Right across the face like so many times before. (pause) And I...saw it there.
Helen: You saw what?
Gertrude: The board. Laying on the counter. I just...picked it up. (shocked looks all around)
Helen: You picked it up?
Gertrude: Yeah I did. I told him, "you take your hand to me"...(crying) I didn't mean to kill him, just swat him down.
Helen: You hit your husband?
Gertrude: And Arthur came in and said "we'll just say he fell"
Claire: (teary) Mom...
Gertrude: I'm sorry Claire. I killed your daddy.
Helen: What, why did you say Arthur did it?
Gertrude: Sometimes I think he did. I, I get confused. I think "how could I have..." (sobbing) I did...I did.
Rebecca enters the little break room where Arthur is. He's seated at the table.
Rebecca: She says she killed him. (Arthur lowers his head) Did she? (He nods slowly, she sits down across form him). I don't understand.
Arthur: She started talking about it. I had to get her out of that home before she got herself into trouble.
Rebecca: So that's why you married her, to get her out before she said too much?
Arthur: That and I love her. (pause) What are they gonna do to her?
Rebecca: Nothing. She's got immunity, remember?
Arthur: So what happens?
Rebecca: You're free to go. You can take her home if you want.
Arthur: Where is she?
They walk into the hall where Gertrude, Lindsay, Bobby, and Helen are.
Arthur: Gertie (he kneels down beside her.)
Gertrude: (teary) They got me to tell.
Arthur: That's okay sweetheart.
Gertrude: But you didn't want me to tell.
Arthur: It's okay. I'm gonna take you home sweetheart.
Gertrude: You're not mad at me?
Arthur: Hey, I love you. (she smiles, looking relieved. He kisses her. Then chuckles) Come on, lets go.
PA. Judges are back with their decision.
Middle Judge: Be seated. (all sit) It is the opinion of this court that Stuart Donovan's constitutional rights were violated by the District Attorney's failure to provide defense council with the information concerning Mr. Bresler's drinking problems. Certainly, armed with this information, a jury might have been more inclined to disbelieve this material witness. As for the informant's statement concerning Mr. Donovan's confession, that too is certainly in doubt. The standard for this court, however, is whether a reasonable jury could have found the defendant guilty. While we feel the jury in this case, given all this new information, quite likely would have returned with a verdict of not guilty, we're not persuaded that they could not have reasonably returned with a guilty just the same. The petitioner's request for a DNA test is therefore denied. We are adjourned.
Our guys sit looking dismayed.
Guards haul off Stuart.
Mary breaks down.
Ellenor looks on the verge of tears.
End of Episode