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 Curren. (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 cooly) 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:
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-----------