The Practice

Closet Justice (319)

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
Crossfire
Closet Justice
Home Invasions
Infected
Happily Ever After
JUDGE HILLER: There's already a lynch mob mentality out there, you can see that. I need to ensure he gets a legitimate and zealous defence. You people fight for murderers better than anybody.

BOBBY: You can't force us to take this case.

JUDGE HILLER: Of course I can. It's exactly what I'm doing. Go defend him!


ELLENOR: This is bad.

BOBBY: What can I tell you?

ELLENOR: First of all, if this thing goes to trial we lose a fortune. The court order fees are minimal.

BOBBY: I don't care about the money.

EUGENE: Then what's the panic, then? We've done nasty cases before.

BOBBY: This was a nun, Eugene, stabbed repeatedly.

EUGENE: I understand, but we've defended child killers. Are you upset on religious grounds?


BOBBY: Lucy... All calls from the media, we have no comment.

LUCY: Okay.

ELLENOR: Wait. You're putting her in charge of 'no comment'?

LUCY: I heard that.


JUDGE KITTLESON: What do you want from me, Jimmy?

JIMMY: You know I would never ask a favour in a million years that I thought was, you know, unethical -

JUDGE KITTLESON: I don't know that, actually, but go ahead.

JIMMY: The guy is getting a bum shake. He's worked hard in his job and he's about to lose it because some undercover cop got him aroused and... it's vintage entrapment.

JUDGE KITTLESON: So, make the argument.

JIMMY: I'd like to make it to you. Judge Cohen's going on vacation. This thing will get transferred to one of six divisions, including yours. I know Mark Patsos, the clerk. I'd like him to steer it your way.

JUDGE KITTLESON: That wouldn't be a good idea. I wouldn't kick it. From where I stand your client committed the crime, and second, I don't appreciate your even asking what you're asking. It amounts to an exparte communication, it's wrong and you know it!

JIMMY: I gotta good guy here -

JUDGE KITTLESON: I don't care.

JIMMY: Fine, forget it. Fine.

JUDGE KITTLESON: You're angry now.

JIMMY: Just forget it. I gotta go -

JUDGE KITTLESON: Hey, Jimmy, I understand you wanna help your friend, but you have to understand that once I put on that robe, I don't play favourites for anybody.

JIMMY: Yeah, yeah. I thought I'd just take a shot.

JUDGE KITTLESON: Oh, I do like that. You do take your shots. Say, why don't you come back in a couple of hours? When the robe is off?


LINDSAY: Look. Mr Kingston, you're in jail right now either because you killed somebody, or somebody else played you for the perfect dupe. Either way, I consider you pretty stupid. And if you think you're going to intimidate me somehow, well, you can just forget that because I really don't have the time. I'm representing you because a judge ordered me too. And I will defend you as best I can, but don't mistake my efforts for caring. You disgust me.

SISTER #1: The reason he even knew her is because she reached out to help him.

HELEN: How so?

SISTER #2: He would show up at the church sometimes, angry, despondent. One time, Caroline approached him. That was the thing about Caroline. She was there for everybody.

SISTER #1: Being there for him got her killed.

HELEN: Three nights ago, she went to see him?

SISTER #2: Yes. She got a call from him. And he asked if she could come visit him at his apartment. She knew nothing about his criminal record... We told the police all this.

HELEN: I understand, but his lawyers are good and they may take this to trial. I just don't want to be surprised by anything. For example, they might even claim that Mr Kingston and Sister Caroline were having a physical relationship.

SISTER #2: What???

HELEN: Their job is to get him off. They're not beneath arguing anything.


BOBBY: Ellenor, try to talk to this girl. Eugene, I guess we should try to contact Dr Crane in case we want to go with insanity.

EUGENE: Dr Crane charges five grand. This is court appointed. The state will never authorise that kind -

BOBBY: Just give him a call in case we decide to go that route. Given what he did, there's gotta be a chance he's insane.

EUGENE: So, we're going to the max for this psycho.

BOBBY: Do we have a choice?


UNDERCOVER POLICE OFFICER: We had a few drinks, talked.

TISBURY: And, at some point, officer, you told him you were a prostitute.

POLICE OFFICER: I said I was a lady of the evening, yes.

TISBURY: And how did Mr Burrows respond?

POLICE OFFICER: He was surprised at first. Maybe shocked.

TISBURY: What happened next?

POLICE OFFICER: We kept talking. I eventually asked him if he'd like to go upstairs to his hotel room. He said yes.

TISBURY: Did you ever quote him a price?

POLICE OFFICER: Four hundred dollars.

TISBURY: And then?

POLICE OFFICER: We went upstairs, he paid me the money, at which point I told him I was an undercover police officer. I placed him under arrest, read him his rights and took him into custody.


LINDSAY: Good news, or bad, depending on how you look at it.

BOBBY: What?

LINDSAY: We got a shot at getting this case kicked.

BOBBY: Excuse me?

ELLENOR: Fourth amendment. Could be a bogus search.

BOBBY: How do you figure? They moved in on a kidnapping.

LINDSAY: There was no kidnap here, Bobby. He was coming back to the place with donuts.

BOBBY: The police didn't know that.

ELLENOR: Bobby, there was nothing exigent.

LINDSAY: The arresting officer's taking the stand tomorrow at the PC hearing. And if he says what I think he's gonna say, out little nun killer could walk.

BOBBY: Lindsay, there was a woman locked up inside his apartment and a chopped up nun.

LINDSAY: And I'm telling you we might be able to suppress the chopped up nun.

BOBBY: I don't really want to.

LINDSAY: You think I do?


BURROWS: I paid the woman the money, I don't deny that.

REBECCA: But?

BURROWS: But I didn't go into the bar looking for a call girl. I sat down at the bar. I ordered a night-cap then she sat down.

REBECCA: Okay. But, Mr Burrows, she didn't force you to hire her services.

BURROWS: We were talking. Getting along. You know, I should've known something was up. Pretty women never come up to me. Things were getting flirtatious, and I started thinking 'hotel bar, I'm on the road, she says she's on the road' and my mind is going right to where a man's mind goes to in these situations.

REBECCA: Which is where?

BURROWS: My penis.

JUDGE: Mr Burrows.

BURROWS: I'm just being honest. I haven't slept with a woman in four years. I don't even go looking for it, I'm a realist. But now, suddenly I'm thinking this is a possibility.

REBECCA: And then?

BURROWS: Then she tells me she's a lady of the evening.

REBECCA: And how did you respond?

BURROWS: I was crushed. One minute I was thinking this beautiful woman was actually attracted to me, and then the next I come crashing back down to earth. But as we continued talking, I begin to realise why she's sitting there, smiling at me, and it occurs to me that this possibility that I'd been so excited about still exists! And all of the little dreams I'd been dreaming... Well, suddenly four hundred dollars seemed cheap and I said yes. She got me as thirsty as she could, she led me to a trough and then I get arrested because I wanted to drink.


ARRESTING OFFICER: We were responding to a 911. When we got there, we found the girl behind the padlocked steel door.

HELEN: Then what happened?

ARRESTING OFFICER: We cut through the door, freed the woman. She told us the suspect had guns or something in the closet. We opened the closet door, and found the remains of the nun.

ELLENOR: After you cut through the front door, to reach Ms Simonson, there was no real emergency, was there, officer?

ARRESTING OFFICER: I suppose not.

ELLENOR: And did you feel Ms Simonson had the authority to give you permission to open the closet?

ARRESTING OFFICER: Well -

ELLENOR: You knew it wasn't her home, right? And, by the way, how did you open the closet?

ARRESTING OFFICER: Crowbar.

ELLENOR: Your honour, at this time, the defence asks that you suppress the entire contents of that closet.


ELLENOR: It's a no-brainer. No exigency, no plain sight.

HELEN: The police were responding to what they thought was a kidnapping.

LINDSAY: But after they went in, they had the girl.

HELEN: And if there's cause for an arrest there's cause for a search incident to an arrest.

BOBBY: Did you just make that up?

HELEN: Hold on -

BOBBY: They could've secured the premises, got the warrant. They could've come back and searched. Instead, they just skipped the warrant.

HELEN: If there was one kidnap there could've been two. Somebody clearly could've been in that closet.

BOBBY: Oh, Helen, don't insult the -

LINDSAY and ELLENOR: On, come on.

JUDGE HILLER: All right, let's just cut through this. I'm told you'd agreed to life with parole. Let's just do that.

BOBBY: That offer isn't on the table anymore.

JUDGE HILLER: Bobby, I suggest you take it.

BOBBY: Why?

JUDGE HILLER: Because, that officer could have reasonably believed there were exigent circumstances.

BOBBY: What?

JUDGE HILLER: He's a young kid. He comes up on a kidnap -

BOBBY: Hold on a second -

JUDGE HILLER: Lower your voice, please.

BOBBY: You stuck us on this case to do a job.

JUDGE HILLER: Which I'm grateful for -

BOBBY: And you gotta do yours.

JUDGE HILLER: Don't you raise your voice.

BOBBY: You're looking to avoid setting this guy free, I get it. But the search was bad.

JUDGE HILLER: I said, lower your voice.

BOBBY: There were no exigent circumstances. The suspect wasn't even there. They knew the girl had no authority to say yes to the search. They had to get a warrant. They didn't. They screwed up. And everybody in this room knows they screwed up.

HELEN: And if you suppress the contents of that closet this guy walks. We all know that too. The victim and the weapon were inside.

JUDGE HILLER: I'll hear oral arguments tomorrow.

BOBBY: Why?

JUDGE HILLER: Because I want to! It's my prerogative. You keep forgetting. I'm the judge!

BOBBY: Let's not you forget.


TISBURY: You thought this woman was a prostitute. You agreed to pay her four hundred dollars for sex.

BURROWS: She had me in an aroused state.

TISBURY: Is that your defence? You were in an aroused state?

BURROWS: My defence is entrapment. And this crime never would have happened if she hadn't come along.

TISBURY: And you agreed to pay her four hundred dollars for sex?

BURROWS: Yes, Mr Tisbury. They got me, good for them!

JIMMY: Your honour -

BURROWS: No, no, Jimmy. Don't tell me to calm down. Now, I'm angry. Now, listen. I pay my taxes and this is what I get? The government is waving illegal candy bars in my face HOPING that I will bite -

TISBURY: And you did bite, didn't you, sir?

BURROWS: Which brings me back to CONGRATULATIONS!!! Listen, you know, maybe you should litter the streets with twenty dollar bills next and bust the homeless for when they don't turn them in.


JUDGE HILLER: How up to date are you on the fourth amendment?

JUDGE KITTLESON: The fourth amendment is an embarrassment. What else do you need to know? What's wrong?

JUDGE HILLER: I may have to set the nun killer free.

JUDGE KITTLESON: What?

JUDGE HILLER: Warrantless search. Stupid police mistake.


JUDGE HILLER: Maybe I should just look the other way. Let the appeals court do the dirty work.

JUDGE KITTLESON: That isn't you, Zoey, we both know that.

JUDGE HILLER: Suppose I transfer it over to you?

JUDGE KITTLESON: Well, it's not me either. Besides which, I'm having a little thing with one of the lawyers at Bobby Donnell's firm, so I'd have to recuse myself anyway.

JUDGE HILLER: What?

JUDGE KITTLESON: Oh, Jimmy Berluti. Little frolic.

JUDGE HILLER: Have you lost your mind?

JUDGE KITTLESON: What? I'm not supposed to have a personal life?

JUDGE HILLER: Well, you shouldn't be having it with lawyers who appear before you -

JUDGE KITTLESON: I don't. That's what I'd just said. I'd have to recuse myself. You know, it's been quite a while since I've seen you smile. It wouldn't be such a bad thing if you went out and got yourself a -

JUDGE HILLER: Never mind!


JUDGE HILLER: What am I going to do, Roberta? The man viciously killed a nun. I put him back out there, he'll no doubt kill somebody else...

JUDGE KITTLESON: What about the kidnap charge?

JUDGE HILLER: It won't stick. They arrested the guy coming back to the house with coffee. The phone in the apartment worked, she was free to make a call... Clearly, she wasn't being kidnapped. What the hell am I gonna do?


HELEN: Nice bomb, Lindsay. Couldn't tell me over breakfast, could you?

LINDSAY: No. Sorry.

HELEN: You know, I realise you didn't want this case either, but still. What you do for a living, it's repulsive. And your little credo of 'just doing my job'... It doesn't excuse it.

LINDSAY: Hold on a second, Helen.

HELEN: No, you hold on. It says something about a person's character, the type of work that she would do.

LINDSAY: You're turning this personal?

HELEN: The fact that you can represent him, even under court order, and look at yourself in the mirror -

LINDSAY: I'm not gonna listen to this.

HELEN: Oh no, don't! It might kick up a bit of a conscience!

LINDSAY: Oh, give me a break.

HELEN: No, Lindsay, the breaks go to people who kill nuns!

LINDSAY: And the police cause they're always innocent.

HELEN: The police try to catch criminals, Lindsay -

LINDSAY: Well, what about when three of them planted a knife in Ellenor's desk trying to frame her and George Vogelmann?

HELEN: I'm not talking about that!

LINDSAY: I am. And you're crying about -

HELEN: This guy killed a nun!

LINDSAY: And if we could trust the police then we wouldn't have all the search and seizure -


TISBURY: He hired her. Four hundred dollars he agreed to pay her. And his defence is what? The aroused penis defence? The thing about prostitution, ladies and gentlemen, we can throw the janes in jail. But they end up right back out there. Because they have no choice. Broke, some with drug problems, some with children to support... They can trade on their bodies, and they do. They end up right back out on the street. Because as far as they see it, there's no other choice. Deterrence works on the johns. And if we can shut down the demand by going after them... And this man he had a choice, didn't he? He chose to knowingly break the law. To pay for sex. Now, he has to pay the consequences for that choice.


JIMMY: Entrapment. That's defined as when a person is lured into the commission of a crime that he has no predisposition to commit. And that's this case. Clyde Burrows never would've committed this crime if he had been left alone by the police. That's entrapment. And Mr Tisbury stands here, lecturing you on how we have to stop the johns. Clyde never was a john in his life. He only became a john here, because the police convinced him to become one. And, big picture. Is this what we want the police to be doing? Staking out law-abiding citizens, baiting them into committing crimes, then busting them? Sure, if Clyde Burrows had been stronger, he could've resisted. Maybe if he'd been more moral, he would've resisted. But he wasn't. He was weak. And thank goodness we have the police to go out and find the weak and lure them into committing crimes. Come on. The police are supposed to protect us! Not trap us. The police are supposed to be catching the people who are out there committing crime. Not finding innocent people and luring them into committing crime. Clyde Burrows would not be sitting here today but for the actions of a police officer. Is this the government we want?


LINDSAY: Absent exigent circumstances, the police cannot search without a warrant.

JUDGE HILLER: They thought she was kidnapped.

LINDSAY: Which buys them entry. But once they had her, once the exigency was over, they had to get a warrant. There was no danger of losing evidence, they could've secured the premises. They can't even argue search incident to the arrest because the suspect was arrested outside the building. I know the idea of setting a murder defendant free is, of course, repugnant to everybody in this room. Especially this defendant. But we have a constitution. A fourth amendment and case law that couldn't be more clear. The police were required to have a warrant to search that closet. They didn't get that warrant. As a result, everything in that closet is inadmissible as evidence.


HELEN: The fourth amendment does not require warrants. It protects people against unreasonable searches, but it has never, by its language, required warrants.

JUDGE HILLER: The Supreme Court has chimed in and said that it does.

HELEN: The modern Supreme Court interpret it that way. The language only required reasonableness, and nowhere, nowhere does the fourth amendment say that evidence obtained absent of warrant, or even absent of reasonableness be excluded. This exclusionary rule wasn't carved out by the courts until 1961. That means for 172 years the fourth amendment did just fine without excluding evidence. The courts decided to impose that sanction. The courts decided that that would be the best way to remedy police misconduct. Now, we've stretched it to remedy police mistakes. Innocent mistakes which themselves are reasonable. If a convicted felon locks up a woman, if he tells her has guns in his closet, reason says he's forfeited his right to privacy. Reason says those police officers should go in and investigate.

JUDGE HILLER: Are you asking me to ignore the holdings of the Supreme Court?

HELEN: I'm asking you to recognise the absurdity of the exclusionary rule. I'm asking you to recognise how ridiculous it is to require 20-year-old police officers to understand the law when judges and lawyers can't. In this case, there was no misconduct by the officers. They rescued a woman who appeared to be kidnapped. They attempted to make sure the apartment was gun free before the kidnapper returned. This is reasonable. That man sitting right over there stabbed a nun thirty times, and cut her into pieces. He has a felony record, he - Last night, I got into a screaming argument with the defence counsel. She accused me of making this personal. It is personal. I take my job very personally, your honour. I like to come in here thinking the work I do counts for something. Just like those police officers. And when we see criminals get turned loose on technicalities that have nothing to do with merit or - The Constitution was designed to protect the innocent. Not the guilty. And this case, this man, your honour. Feed this right into the mouths of the Supreme Court. If they wanna spit him back on the street, yes. Yes, I'm asking you to overrule recent decisions. We need a brave judge to do that, your honour, otherwise, they'll never get the chance to revisit the irrationality of - He killed a nun. He mutilated a nun and stuffed her into a closet. The fourth amendment was never meant to protect this animal. I'm sorry. It's personal.


JUDGE: Will the defendant please rise? Has the jury reached its verdict?

FOREMAN: We have, your honour.

JUDGE: What say you?

FOREMAN: In the matter of Commonwealth versus Burrows, on the count of solicitation. We find the defendant, Clyde Burrows, not guilty.


JIMMY: I gotta admit, I didn't think we'd win.

BURROWS: Yeah, well, I owe you big.

JIMMY: Do me a favour, from now on go to bars like this instead of hotels. Pretty women don't come in here. Oh, except for Bec.


JUDGE HILLER: I agree with Miss Gamble. There is nothing in the language of the fourth amendment that requires warrants. Nor is there anything that says illegally obtained evidence should be excluded. These rulings have been carved out by the courts in response to our distrust of the police. I also realise that the courts are more willing to adjust their thinking for the needs of the day. We search bags at airports now without warrants. Make people go through metal detectors. California requires finger prints just to get a drivers licence. The Department of Transportation has mandatory drug testing. We have all these invasive things we do to people, absent not only warrants, but absent any suspicions of wrongdoing! So, why can't a police officer who's been told there are weapons in the closet of a convicted felon, a man suspected of kidnapping, why can't he open the closet? I agree with the district attorney, the fourth amendment has been interpreted and expanded by the courts to the point where it belies both the language and the intent of the amendment. Which is reasonable? But. I also know the Supreme Court rulings on search and seizure have set clear rules. And as much as I would love to be a renegade, our criminal justice system has no chance whatsoever once the judges themselves begin embracing judicial anarchy. The search of the closet was illegal. The contents are inadmissible. With the contents suppressed, I find no probable cause to hold the defendant. He is free to go.




transcribed by Ryana

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