The Practice

Part V. (105)

written by David E. Kelley

Part V.
Trees in the Forest
State of Mind
Love and Honor
Lawyers, Reporters and Cockroaches
End Games
Target Practice
Closet Justice
Home Invasions
Happily Ever After
REPORTER: Rabbi Warner can I get you to comment?

BOBBY: No comment.

REPORTER: People have dubbed you the killer rabbi ­ would you have any reaction?

BOBBY: No comment.

JIMMY: I'd like to respond to that, I think this killer Rabbi crap is disgusting. If he was black you'd say the killer, if he was white you'd say the accused but give him a yamakah and you all gotta push the ethnic buttons. It's shameful.

BOBBY: Jimmy!

JIMMY: No further comments.

EUGENE: Ok Steven, trial is set for tomorrow, should be quick. They're putting up the victim and the arresting cop, that's it. Figure one or two days unless you think of anyone who could testify for you. Questions?

PRISONER: Just one, who are you?

EUGENE: Aren't you Steven Finald?

EUGENE: Ok Steven?

EUGENE: Trial set for tomorrow, should be fast. They're putting up the victim and the officer. I figure one to two days. Questions?

BOBBY: No point in copping to second degree. My advice ­ temporary insanity ­ I think the jury will jump at it.

DR BRAUN: Temporary Insanity, The Ronald Martin defence.

BOBBY: Your daughter was murdered, the pressure of a trial topped off with an acquittal ­ you snapped.


BOBBY: Excuse me?

DR BRAUN: No, I will not use the Ronald Martin defence, I knew what I was doing I won't pretend otherwise.

Mrs Braun: Gerald!


BOBBY: Dr Braun, you have no other choice!

DR. BRAUN: Look at you. You are advising me to lie and you sit there polaxed at my hesitation. Is dishonesty so organic to this system that you're actually thrown by a client who opts for the truth?

BOBBY: Let's fix the system next week, for now you have temporary insanity defence or an extended prison term. If I seem thrown maybe I'm surprised that a person who shot somebody in the head can be such a stickler for principal!

Mrs Braun: That's not fair, How dare you?

BOBBY: Mrs Braun it is not my function as a lawyer to coddle either one of you. This is a murder trial, it'll get rough. If you want comfort go to your Rabbi, although I suspect that that's partly what got you into this trouble to begin with.

JIMMY: We should go with the Rabbi on this one.

ELLENOR: What does that mean?

JIMMY: Well stand right up in court and say what Daniel said on the TV show was right. It's more right for Ronald Martin to be dead than free.

LINDSAY: We can't do that.

JIMMY: Course we can, just wink to the jury and say he did it let him go anyway… there's a name for it...

LINDSAY: Yeah, it's jury nullification and ethically a lawyer can't argue it.

JIMMY: We have a client who shot a guy in the head and we're gonna get caught up on ethics? Put it right to that jury - Ronald Martin got what was coming to him, what if it was your daughter - who wouldn't pull that trigger? It's America, boom, not guilty.

EUGENE: Cancel whatever I've got on tomorrow Bec, I'm going to trial.

REBECCA: On Finald.

EUGENE: DA won't deal, she'll bet though, I've got a hundred bucks saying I'll win.

LINDSAY: Excuse me, you made a bet on Finald the armed robber?

EUGENE: The very one.

LINDSAY: They have an eyewitness.

EUGENE: You ever seen me cross examine an eyewitness, Lindsay? Tell her Bobby.

BOBBY: He's good.

JUDGE: Well?

BOBBY: My client insists on Not Guilty, he refuses to argue insanity.

JUDGE: You're going jury nullification?

BOBBY: I don't know what I'm doing yet.

JUDGE: You don't know what you're doing and you're asking for an immediate trial?

BOBBY: Right.

JUDGE: I will hammer that jury with the strongest instruction I have ever crafted ­ know that.

BOBBY: I've got a job to do your honour.

JUDGE: As do I ­ you better come up with something else ­ I will not let you argue to the jury that they ignore the law.

BOBBY: I will just be asking that they listen your honour, that's it.

BOBBY: Let me ask you a question ­ all that stuff you were saying earlier, who wouldn't pull the trigger, all that stuff, you really believe it?

JIMMY: Yeah.

BOBBY: Level with me Jimmy, when you first heard Gerry Braun killed Ronald Martin, how'd you feel in your gut?

JIMMY: Really? I said to myself good for him. I don't support it or nothing but if I had a daughter and somebody killed her I'd want him dead.

BOBBY: You think the jury will think like that

JIMMY: I do.

BOBBY: So what we want is some legal angle that allows them to go with how they feel.

JIMMY: You mean some legal angle that allows them to ignore the law.

BOBBY: Yeah.

STEVEN: When will I get to testify?

EUGENE: We'll cross that bridge when we're drowning.

JIMMY: I got it, we got a defence, moral justification. It's a duress theory little used.

BOBBY: Moral justification?

JIMMY: It's not an absolute defence but it can get murder chopped down to manslaughter which in this case is good as an acquittal.

DR. BRAUN: What do you mean it's as good as an acquittal?

BOBBY: The DA is only charging murder he's not charging manslaughter in the alternative because he's afraid that if the jury has a chance, they'll jump at it.

DR. BRAUN: I'm confused.

BOBBY: If he gives the jury the choice between murder and manslaughter, he figures the jury will pick manslaughter, you being sympathetic, so he takes away that choice by not charging anything but Murder 1 and Murder 2, he's going all or nothing.

JIMMY: Which means if we convince the jury you're only guilty of manslaughter, you get a straight acquittal.

DANNY: Could they then come back and charge him with manslaughter?

BOBBY: No, double jeopardy applies to lesser included charges, they have to include manslaughter now or forever lose it.

EUGENE: Mr Augusta, were you a little scared, this knife suddenly being put to your chest.

VICTIM: Well yes I was scared, yeah! But if your asking did it compromise my powers of observation, I would honestly say no.

EUGENE: You were looking at the knife weren't you?

VICTIM: I was looking both at the man and the knife.

EUGENE: For the knife you remembered ­ stainless steel, cerated, wooden handle, nine inches. For the man ­ black, big head.

VICTIM: Look, I'm not saying that I wasn't frightened.

EUGENE: Would you say that you were ery frightened?

JUDGE: Moral justification, for a homicide?

BOBBY: It's different thany nullification.

DA: It's not different, he's going to be arguing to the jury that they ignore the law.

BOBBY: Look I'm not going to be drawing you a roadmap. Your honour, the only reason I'm bringing this to your attention now is so we won't have to waste time going back to your chambers once the trial has started. I'm arguing heat of passion, the passion can be driven by a man's moral state of mind.

DA: That's ridiculous

BOBBY: Fine, you make your arguments, I'll make mine.

DA: So is this why the Rabbi's on the witness list, is he going to be testifying that God is on your side? BOBBY: What ever he testify's to you can cross examine.

JUDGE: Mr Wilk, I seriously suggest that you charge manslaughter in the alternative.

DA: Not a chance.

JUDGE: If you don't make Murder 2, he walks free!

DA: They're flaunting this, he planned his crime, he went home, he discussed it with his Rabbi first, this wasn't heat of passion, it was cold, calculated execution, then these people go on television and exalt it. It's Murder in the first degree all the way.

JUDGE: The jury might reject that.

DA: We're not offering manslaughter.

EUGENE: When you pulled up to the scene where did you see my client.

VICTIM: He was standing between two uniformed police officers, about twenty feet away.

EUGENE: Was he handcuffed?


EUGENE: And you said, that's the man, that's the man who robbed me, right off.

VICTIM: No I got out and took a closer look first.

EUGENE: You didn't identify him from the car?


EUGENE: So as you looked at him from the car, twenty feet away he didn't look familiar?

VICTIM: Well… I thought it might be him.

EUGENE: Might be him how?

VICTIM: Well, size and build wise it could be him.

EUGENE: Ten minutes earlier you couldn't give the officers a size and build description.

VICTIM: I was in shock a little bit ­ I'd just been assaulted.

EUGENE: You were in shock. You mean your powers of observation might have been affected a little?

RENEE: Objection, He's badgering the witness.

JUDGE: Overruled.

EUGENE: As you saw this man standing twenty feet away, what about him made you think that this was the man who robbed you sir.

VICTIM: I don't know, I just remember thinking it might be him so I got out of the car to take a closer look and when I saw him up close I knew it was him, I knew it!

EUGENE: But you couldn't recognise him from twenty feet away.

VICTIM: That's right, I said that.

RENEE: Asked and answered.

EUGENE: You couldn't identify my client from twenty feet away.

VICTIM: Yeah, that's right.

RENEE: Asked and answered!

EUGENE: But yet the next day in a police line up standing twenty feet away you did recognise him. How is that possible.

RENEE: Objection

JUDGE: Overruled

EUGENE: Twenty feet away the night before you can't recognise him but for whatever reason the next morning you pick him out in an instant.

VICTIM: When I saw him the second time there were other characteristics that registered. Build, stance, posture.

EUGENE: So when you picked my client out of a line up you were going on the things you saw when he was in police custody than what you saw in the grocery store parking lot?

VICTIM: Well, yes.

EUGENE: Ah, by the way, would you call that a big head?

VICTIM: Well it looks smaller today.

EUGENE: But you told the police you were absolutely certain the suspect had a big head.

VICTIM: Maybe I was wrong about that.

EUGENE: Or maybe you were right. A photographer by trade, with a gift for the detail, maybe it was someone with a big head.

VICTIM: It was him!

EUGENE: Then you were wrong about the big head.

VICTIM: I said that!P>EUGENE: How could you be wrong about something so general as that?

VICTIM: I don't know sir. I told you before I was in some shock.

EUGENE: Oh yes you were in some shock.

DANNY: What's up?

BOBBY: What's up is I gotta know something.

DANNY: What?

BOBBY: When Gerald Braun came to you, when he left your office, did you know what he was about to do?

DANNY: Think I wouldn't have stopped him?

BOBBY: Danny..Did you know?

DANNY: Of course I didn't know. When he said he wanted to kill him, I never thought he would actually..Of course I didn't know.

BOBBY: Then why didn't you stay with him? You knew he needed you!

DANNY: Exactly what's the accusation here?

BOBBY: Danny help me out her a little please, Don't you think you gave him the moral empowerment and the righteousness he needed to see it through? Let's not kid ourselves, Ronald Martin is dead in large part because of you.

DANNY: I'll ask again, what's the accusation?

BOBBY: I am walking uphill into a murder that's going to be very difficult to win, I gotta know exactly what I'm dealing with.

COP: He reacted nervously to our prescence, fitting the general description of the suspect, we detained him until the victim could arrive to make a positive ID.

RENEE: Thankyou, no further questions.

EUGENE: He reacted nervously to your presence? You shined a searchlight right into his face didn't you?

COP: We shined it on his person.

EUGENE: Do you think it's unusual for a black man in South Boston to be nervous when a police car comes along illuminating him like a deer caught in headlights?

COP: I don't think he had anything to be nervous about if he were innocent.

EUGENE: Silly me. The general description you were talking about that would be ­ black, big head.

COP: Yes

EUGENE: Did either you or your partner approximate the circumference of my clients cranium?

COP: We detained him because he was black in the area of the crime, acting suspiciously.

EUGENE: This was before you picked him up?

COP: ... No, after.

EUGENE: I see.

RENEE: It was him, it was him, it was him! Now how many times did we hear Mr Augusta say this? They were standing nose to nose, the lighting was clear. That was the man that stuck a knife to him, threatened to kill him, he robbed him. Now the uh defence council did a lovely job of trying to confuse the witness, to rattle him, see how much water he could make him drink. But he could not shake him on the one question we have here. Who did it? He did.

EUGENE: No, he didn't. But that's what we all want to believe, let's be honest. Because if it's him we can feel relieved that the bad guy's off the street, we can feel safe. And that's what Mr. Augusta wanted to believe as he was driven to see this man. Let it be him, let it be him and when he saw Steven Finald there with handcuffs on it became just a little bit easier to conclude that it was him. Didn't it. Let me tell you what I think you may already know. A man puts a knife to this man and as the victim said he went into shock and nothing really registered except black, big head, that's all. Then this man runs away and Mr Augusta gathers himself, while waiting for the police to show up he takes stock of the lampposts, the cars, the fern trees. That 's why he remembers that stuff, he processed it in a relative state of calm. But the suspect, black, big head, that's all. And if you look at my client, Steven Finald doesn't have a big head, my head's bigger than his and so's your honours. No offence.

JUDGE: Just proceed council.

EUGENE: The reason the law demands a police lineup ladies and gentleman is that it's because it is an accepted truth that when a victim identifies a lone suspect in police custody he's more likely to automatically conclude he's the guy. As a matter of law those id's are deem unreliable, untrustworthy, tainted. That's why they called him back the next day to pick a suspect out of a lineup, because the id made before was unreliable, untrustworthy, tainted. Now you might say he did pick Steven Finald up out of a lineup. Of course, but he wasn't identifying the man who put a knife to his groin, he was identifying the man he saw in police custody. This man is not the man with the knife, not the big headed man, This man is only who Mr Augusta wants to believe is the bad guy and he admits that, big head, no big head, it's a normal size head now, so all we're left with is black. Steven Finald sits here black. They found no knife, no wallet, no watch, they found no physical evidence, just an eyewitness in shock who says that he can only give a general description, half of which, the big head part, he retracts. Do I really have to stand hear and argue reasonable doubt?

JIMMY: I just got this fax from the clerks office ­ the notice of appearance of a new DA, in the Braun trial.

BOBBY: Asha Silverman!

JIMMY: What you know this guy?

BOBBY: Asha Silverman is legend, he has never lost a murder trial.

LINDSAY: So this'll be a first then.

BOBBY: He's also an orthodox Rabbi, they did this in response to our moral duress strategy.

LINDSAY: He's a DA and a Rabbi?

BOBBY: Mmhmm

JIMMY: Maybe this makes him more compassionate - he'll be willing to make a deal.

BOBBY: I don't know anything about him as a Rabbi but as a DA, he's ruthless. They didn't put him on this to make a deal, that's sure.

BOBBY: Ah, Ellenor, good, I want you on this Braun case.

ELLENOR: I'm really sorry Bobby, I just can't do that. BOBBY: Why?

ELLENOR: I'm just not comfortable working on this case, please don't ask me to participate. I'd really ask that you respect me on this.

BOBBY: Oh, ok.

DANNY: Forgive me, Could I be so intrusive as to ask why?

ELLENOR: You wore your yamakah on that TV program, when a Rabbi speaks he represents Judaism, you represented it as vengeful and as a Jewish person I was offended. I'd just rather not work on the case.

STEVEN: You know, you didn't ask me much about my story.

EUGENE: You told me you were out on a walk, that's all I need to know.

STEVEN: It seems like you didn't want to know.

EUGENE: Well defence lawyers have to be careful, I'm stuck with whatever you tell me, sometimes the less I know the more free I can be with my defence.

JUDGE: Will the defendant please rise. Members of the jury have you reached a verdict.

FOREPERSON: We have, on the matter of the commonwealth vs. Steven Finald, armed robbery, we find the defendant not guilty.

EUGENE: Alright Steven, you're a free bird, eat right and exercise.

STEVEN: Thank you.

JUDGE: The defendant is free to go, we're adjourned.

EUGENE: Small bills only.

RENEE: Mmmmm, buy yourself a new tie.

STEVEN: Mr Young, I'm free no matter what now right?

EUGENE: Correct.

STEVEN: So no matter what I say now they can't arrest me.

EUGENE: Also correct, double jeopardy, but I wouldn't be going on any talk shows.

STEVEN: Nah man, I only wanna say this to you. I didn't do it. I didn't stick that guy up, I was just out taking a walk, so uh thanks for believing in men.

RENEE: what he say?

EUGENE: you know, just thanking me.

REBECCA: So now what happens?

ELLENOR: Oh, you know the usual, I'll call him during the day when I know he's at work, leave a few polite messages he'll eventually GET the message and I'll meet up with him, you know, sometime around NEVER.

REBECCA: You got it all figured out

ELLENOR: I know how it works, trust me on this one.

REBECCA: You had no right to do that.

ELLENOR: Right, I need a right?

REBECCA: The kind of treatment you expect from others.

ELLENOR: It just wasn't there Rebecca, the chemistry...

REBECCA: And you rejected him because of his looks

ELLENOR: Yeah, and?

REBECCA: And you can live with that?

ELLENOR: Can I live with that?


ELLENOR: I've been living with it my entire adulthood, I'll survive and I'm sure so will George.

REBECCA: You could have at least been honest, this stupid game, come on.

ELLENOR: Let me explain something to you Rebecca, you're grateful for the game, you make exscuses, it's a lot easier to take than the truth even when you know. And as for my right, if I have ever earned an entitlement to anything… nevermind.


EUGENE: Hey, I'm buying, came into some cash.

REBECCA: Usually when you win you come back with a strut.

EUGENE: my client did not commit the crime with which he was charged and it never even dawned n me that he was anything but guilty.

REBECCA: Well they almost always are guilty.

EUGENE: That's not the point, the point is the one you were trying to make yesterday. I'm convicting them before they even get to the judge and I'm the defence attorney.

REBECCA: Yeah but you got him an acquittal.

EUGENE: That's probably why I feel so good.­ To the winners.

GERALD: Does anybody get any of this. Ronald Martin commits murder and they assign a junior varsity DA, for me they bring in the heavy weight

BOBBY: Ham Bourg is not junior varsity, trust me

DANNY: yeah but they're pushing harder on this than they did on Ronald Martin

BOBBY: That's because you went on tv and you embarrassed them. We're here because of you.

DANNY: I was trying to help

BOBBY: Well you didn't. It's still not too late to switch to insanity.

DR. BRAUN: It's still not to late to hire a new lawyer, that was the sanest moment of my life and I'm going to get up on the stand and say that.

BOBBY: Say it like that and you wave bye to your wife and world,

DR. BRAUN: Whose side are you on here?

BOBBY: Listen to me, both of you, the whole world might be bidding to tell your story all I care is what twelve people in a box think.. This DA is good ­ he's great, he's never lost a murder trial and if he can convince those jurors to ignore the cheering and listen to the law like they should be doing then you both go away because you committed pre meditated murder and you were an accessory. I'm on your side but you are in trouble.

transcribed by Cali