Bobby: What?
Judge Hiller: He’s a young kid. He comes up on a kidnap -
Bobby: Hold on a second -
Judge Hiller: (sternly) 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: (pointing at him) 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.
Judge Hiller: Oral arguments at ten o’clock tomorrow.
They all turn and begin to walk out.
Judge Hiller: I’ll see Miss Gamble alone.
They all stop and turn back.
Bobby, Lindsay and Ellenor: Why?
Judge Hiller: Hey! Out! (They reluctantly leave) You better give me something, Helen. I don’t want to set him free anymore than you want me to. But you better give me something because... (pause)
Helen: Your honour -
Judge Hiller: Go get something. You haven’t got much time.
-------------------- Commercial --------------------
A courtroom.
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: (standing) Your honour -
Burrows: No, no, Jimmy. Don’t tell me to calm down. (Jimmy sits, Rebecca looks worried) 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.
The hallway. Jimmy and Rebecca are walking angrily to the elevator. Burrows is trailing after them. The elevator doors close.
Jimmy: What the hell was that?
Burrows: I’m angry.
Rebecca: Our chances ride on sympathy and you just blew it!
Burrows: I don’t care! When I think about what they did -
Rebecca: No, you did it! They maybe brought you to the trough, but you did drink, Clyde.
Burrows: I wanted to drink! I wanted to bite! But I didn’t!
Rebecca: Cause you got arrested before you could!
Jimmy: All right. Clyde, if we can still settle -
Burrows: No!(he hits the stop button) You know something, Jimmy? I’m a weak person. I know that. But I never broke a damn law in my life.
Rebecca: (muttering) Well, you broke this one.
Burrows: They caused me to and it just isn’t fair!
Rebecca hits the start button. She and Jimmy look at each other, and Rebecca shakes her head.
Helen’s office. She’s ordering out her helpers.
Helen: Anything and everything on search and seizure. Get on west law, check the Virginia case that threw out Miranda. Forget lunch, forget dinner. I need those citations by seven o’clock. Go go go!!! (they leave)
Mark (Helen’s boss?) comes in.
Mark: Don’t tell me.
Helen: The officers screwed up, Mark! Now, I’m screwed going in there.
Mark: Helen, if he walks, this -
Helen: He’s going to walk, Mark, unless... (she sighs) Between now and ten o’clock tomorrow morning, I have to find something.
Judge Kittleson’s chambers. Judge Hiller walks 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? (Judge Hiller doesn’t answer) What’s wrong?
Judge Hiller: I may have to set the nun killer free.
Judge Kittleson: (shocked) What?
Judge Hiller: Warrantless search. Stupid police mistake.
Judge Kittleson: Oh, god.
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: (sternly and rising) Never mind! (she goes to the door and stops. There’s a pause) 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?
Night-time. Helen and Lindsay’s apartment. Helen is perusing a fax from the fax machine as Lindsay enters.
Helen: (not looking up) Nice bomb, Lindsay. Couldn’t tell me over breakfast, could you?
Lindsay: (shaking her head) No. (there’s an awkward pause) 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: (shocked) Hold on a second, Helen.
Helen: No, you hold on. (she walks over to Lindsay, clearly upset) It says something about a person’s character, the type of work that she would do.
Lindsay: You’re turning this personal?
Helen: (raising her voice slightly) The fact that you can represent him, even under court order, and look at yourself in the mirror -
Lindsay: (pushing past her) I’m not gonna listen to this.
Helen: Oh no, don’t! It might kick up a bit of a conscience!
Lindsay: (turning back to her) Oh, give me a break. (Lindsay still hasn’t raised her voice)
Helen: (yelling now) No, Lindsay, the breaks go to people who kill nuns!
Lindsay: (now beginning to raise her voice, but only slightly) 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: (loudly, but still not yelling) I am. And you’re crying about -
Helen: (yelling desperately) This guy killed a nun!
Lindsay: And if we could trust the police then we wouldn’t have all the search and seizure -
Helen: Oh, don’t talk to me! (she turns her back on Lindsay)
Lindsay: Oh, don’t turn this on me. If you were in my position, you’d do the same -
Helen: (yelling right in Lindsay’s face) I would never be in your position!!!
Lindsay: Hey.
Helen: (crying) Go to hell!
Lindsay: (quietly and dangerously) You go to hell.
She walks away and slams the door. Helen slumps to the floor, crying.
-------------------- Commercial --------------------
Helen and Lindsay’s apartment, the next morning. Helen is sitting at the table in front of a lap top computer. The table is covered in papers and books
Lindsay: (coming in, surprised) Were you up all night?
Helen: Couldn’t sleep. I’m sure you could.
Lindsay: Oh, go to hell again.
Helen: Lindsay. (she pauses) I’m sorry. I don’t mean to take it out on you, but you’re here.
Lindsay: You think I want the guy free, Helen?
Helen: (shaking her head) No.
The courthouse.
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 (pointing to Burrows) 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. (he sits)
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. (he pauses) Clyde Burrows would not be sitting here today but for the actions of a police officer. (slowly) Is this the government we want? (he stares at the jury meaningfully)
The office. The phone rings and Lucy picks it up.
Lucy: Donnell, Young, Dole and Frutt... (she listens) Oh, shut up. (she hangs up and dials again. Faintly we can hear the ring on the other end and the greeting) Ever heard of *69, you idiot?? I’m reporting you to the police. (she slams the phone down)
Eugene: (coming out of his office) What’s going on?
Lucy: It’s this case. People don’t like us doing it. (she walks away leaving Eugene looking thoughtful)
The courthouse.
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 (indicates Kingston) was arrested outside the building. (pause and sigh) 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.
Judge Hiller looks thoughtful. Lindsay sits.
Judge Hiller: Ms Gamble (Helen doesn’t move) Ms Gamble? (Helen stands)
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 - (she breaks off and takes a minute to compose herself. Lindsay looks concerned) Last night, I got into a creaming argument with the defence counsel. (Lindsay closes her eyes) 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 - (she sighs) The Constitution was designed to protect then 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 - (she breaks off and pauses) 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.
The hallway. Bobby, Lindsay and Ellenor are pushing through the protesting mob to a room. They enter and close the door.
Ellenor: Wouldn’t wanna be Judge Hiller.
Lindsay: I think Helen did pretty well.
Bobby: Giving her a hand? I’ve seen you better?
Lindsay: I’m sorry?
Bobby: You hit all the marks, you certainly weren’t bad, but I’ve seen you better.
Lindsay: Are you accusing me of something?
Bobby: No.
Lindsay: Let’s see you defend that guy better, Bobby.
Bobby: I wasn’t criticising -
Lindsay: Yes, you are. And I don’t like it. (there’s an uncomfortable pause)
Helen’s office. She’s at her desk, staring sadly off into space, on the brink of tears. She slowly leans forward and rest her head in her hands.
Courtroom. Burrows trial.
Judge: Will the defendant please rise? (Jimmy, Rebecca and Burrows stand) 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.
(Clyde’s happiness and relief is quite obvious)
Rebecca: (dumbfounded) Wow.
Burrows: Oh god... Thank you! (turns to Jimmy) Thank you.
Jimmy: (smiling) You stuck to your guns, Clyde. You hung in there.
A bar. Jimmy, Rebecca and Clyde are celebrating.
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 Kittleson: (appearing behind them) I take offence at that.
Jimmy: (surprised to see her) Roberta - (stands)
Rebecca looks doubtfully at Judge Kittleson.
Judge Kittleson: Hi. I just swung by to tell you I won’t be able to see you later tonight. I gotta check on Judge Hiller. She may need me.
Rebecca: Oh. How’d she rule?
Judge Kittleson: Oh, she hasn’t yet. I don’t know which way she’s gonna go. (she turns back to Jimmy) So, can I please have a raincheck for dinner?
Jimmy: Sure. (Judge Kittleson’s beeper goes off) Sure.
Judge Kittleson: Oh, never mind... I gotta go, um - (she kisses Jimmy on the cheek) I’ll call you later. (she leaves.)
Rebecca looks at Jimmy questioningly.
Jimmy: (defensively) We’re friends.
Rebecca looks disbelieving, and doesn’t answer.
Courtroom. Once again the gallery is full, the front filled with nuns. Judge Hiller enters. There’s a long silence.
Judge Hiller: (taking a deep breath) 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? (slight pause) 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. (she begins to speak slowly) The search of the closet was illegal. The contents are inadmissible. (Helen shakes her head, sadly) With the contents suppressed, I find no probable cause to hold the defendant. He is free to go. (she bangs the gavel and leaves quickly)
The gallery is in an uproar. The nuns are stunned and the reporters are badgering Kingston as he gets his cuffs removed. Bobby and Ellenor look uncomfortable, Lindsay like she’s about to start crying. Helen also looks about to start crying. Kingston leaves the room, a huge smile on his face. Lindsay stands and walks towards Helen. They meet in the middle of the tables and hug each other, crying softly.
---- End of Episode ----