All language subtitles for The.Practice.S04E20.Liberty.Bells.HULU.WEB-DL.AAC2.0.H.264-AJP69_track3_[eng]

Previously on "The Practice"...

Can you tell me the crime

your son's been convicted of?

He's on death row
in Pennsylvania.

He's to be executed
in five weeks.

He was convicted of raping
and killing his girlfriend

Alisa Kearns,
then killing her mother.

Any DNA?

They didn't do full
DNA analysis back then.

This is Ellenor Frutt.

Hello.

She says you can do something.
Can you really?

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
that he's innocent first?

Right.
How the hell can that be?

Can you think of anybody else
who may have wanted

to harm your daughter
or your wife?

They got the real killer,
Mr. Berluti.

Your testimony
was especially powerful.

You said that he
confessed to you.
What do you want from me?

A statement saying
that you lied,

that he never confessed.

You can be sure it was
Stuart Donovan you saw

go into that house?
It was between 11:30
and 12:00.

My husband was a drunk
back then.

He could've believed
it was 11:30

when it may have been 9:00.

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 are 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.

You've got to be kidding.

This is a matter
of life and death.

I'm sorry.
Without an appointment,

there's really--

I've been trying to make
an appointment.

You offered me one
of two days in July.

By that time,
Stuart Donovan will be dead.

Ms. Frutt, the governor
did consider your request,

and as far--
I don't mean
to be rude,

but I don't believe
he did

because from everything
I've read about him,

he's not only intelligent,

but he's extremely
fair-minded,

and there is no way he would
have denied this reprieve

had he considered
the facts of--

I assure you, he did.

I'd like to hear it
from him.

Ms. Mathers, I am asking
for 30 seconds of his time,

and after that,
you can have me escorted out.

How would this administration
run, Ms. Frutt,

if we were to give 30 seconds
to every attorney

who marched in here looking
to stay an execution?

Actually, I think it would
run just fine.

This is the second execution
in four years.

One minute in four years

isn't likely to cripple
his administration.

I'm afraid I'll have to
ask you to leave.

Could you give him
this note?

I'm afraid I can't.
I'm sorry.

Could you pass on
a gesture?

Your 30 seconds with me
are up.

(telephone rings)

Since 1985,

nationwide, there have been
at least 10 botched executions

by lethal injection.

Mr. Berluti, what is the basis
of this petition?

That to subject my client
to lethal injection

would amount to cruel
and unusual punishment,

given the likelihood--

counsel, for us to order
that DNA test,

you have to show
that a reasonable jury

couldn't have found
your client guilty.

We went through all that
last week.

We turned you down.

What's changed
in the last nine days?

Well, your honor,
I thought perhaps

the court turned us down

mainly on
the constitutional grounds.

That's why we've
come back today

with stronger
constitutional grounds,

that being
the eighth amendment--

cruel and unusual punishment.

The petition is denied,

and defense counsel
is fined $1,000.

We're adjourned.

(bangs gavel)

Wait a second.

We're trying to save
an innocent man

from being put to death,

and you're fining me now
$1,000?

I am, sir.
You're here with nothing new,

taking up the time
of a district attorney,

three federal judges,
not to mention

all the court employees.

And the fine is going up
to $1,500

if you say another word.

Suppose the tubes close
like they have in the past.

I'm not entitled to be
concerned about that?

The court will allow counsel

to inspect
the executioner's equipment.

The fine is now $1,500.

(music playing)

Okay, great, thank you.

Okay, Lucy, Joel Bullock,
prison informant,

supposedly Earl Taylor's mentor,
taught him everything he knows.

I'd like you to go and see
if you can find out

how Earl learned
the details of the crime.

You want me
to meet with him?

Evidently, he has a thing
for young girls.

Forget it.
You will be separated
by a partition.

You just have to go
and talk to him.

Do I have to?

No...

but you might be
our best shot.

EUGENE: The clothes.

Excuse me?

Alisa Kearns was raped
and killed

while wearing a nightshirt.

ELLENOR: So?

So, there's nothing in here
about it ever being tested.

All the semen samples came
from the rape kit swab.

So what?

Well, the rape kit
was introduced at trial.

That's why they're saying
it's not new evidence.

The nightshirt--
that was never introduced.

We can make the argument
that would be new evidence.

It was never tested.

Maybe there's
something on it.

Where would
the nightshirt be?

She probably went
to the coroner with it.

We sent it
to the mortuary.

The nightshirt?

That's what it says.

The father of the victim
requested that we send it

along with the body
to the mortuary.

Why the hell
would he request that?

Kearns...

he must be Jewish.

What?

It's an ancient
Jewish custom--

let the victim
of a violent crime be buried

in the clothes they died in.

It's thought to arouse
compassion in god

and hasten the end
of the exile.

Really?

She was buried
in the nightshirt.

It's in the coffin.

(footsteps approaching)

(chuckles)

What are you, 15?

If you could help me, sir.

Stuart Donovan is scheduled
for execution

the day after tomorrow--

show me a little something
before we get started.

Excuse me.

You know, flashy, flashy,
something trashy.

I am not gonna flash you.

I'm told that you know
how Earl Taylor

got the details
on Stuart Donovan's case.

Show me one little titty.

Mr. Bullock, I am here
asking you--

One little titty
will speak volumes.

You give, I give,
little miss.

That's the way
justice works.

Now, you say somebody's
life's at stake.

You tell me
what you know,

and I'll decide
how much I show you.

Booty up-front.
That's the way it works.

Goodbye, Mr. Bullock.

No, no, wait, wait.
Okay.

He got the facts
about the murder

by calling
the coroner's office,

pretending to be
a police officer.

It ain't hard.
Most are stupid.

He calls the inmate
reception center

to get the skinny
on the perp,

pretending to be
a bail bondsman.

Next, he calls
the D. A.'S record room,

posing as an assistant
district attorney.

That's all you need
to find out anything

about any crime.

You can get all this
on the phone from prison?

15 minutes.

I've seen Earl
do it in less.

All right, little lady,

titty showtime.

That's it? Stomach?

Bye, Joel.

I give you everything,
and you give me stomach?

Man.

You want to what?

A court order allowing us

to exhume the body
of Alisa Kearns.

Your honor denied our request
to have the rape kit tested

because it was old evidence.

The nightshirt in the
casket is new evidence.

How is it new evidence?

It was no secret
Alisa Kearns

was wearing a nightshirt
on the night of the crime.

With due diligence,
Mr. Donovan's lawyers

could have tracked it down
years ago.

It was not foreseeable
that the victim

would be buried
in the nightshirt she died in,

in accordance with an
ancient Jewish custom.

And with the existence
of the rape kit,

there was never a need
to go looking for it.

I would submit
that we have a right

to post-conviction
discovery.

Under exceptional
circumstances.

Stuart Donovan is about
to be put to death.

If that's not
exceptional circumstances--

you don't know there's
DNA on that nightshirt.

If there's not,
what are you afraid of?

You still get
to execute him,

and you don't have to
cancel your party plans.

I direct the court to
Commonwealth vs Kivlin.

The court of appeals
denied defendant's motion

for exhumation

because the existence
of the evidence sought

was speculative
and uncertain.

Kivlin involved looking
for trace gunpowder residue.

That's nowhere near

the scientific certainty
of DNA.

Your honor,
this crosses a line.

They're looking
to desecrate a grave

and victimize Ms. Kearns
yet one more time.

I object to that.

I'd also like to point out

that the prosecution
of Stuart Donovan

has now cost the taxpayers
over $1 million.

They had a trial.
They had an appeal.

They have since gone on
to the state Supreme Court,

the federal circuit court.
They've come back to you twice.

They've gone to
the United States Supreme Court.

For every one
of these hail Marys,

the district attorney's office
must file briefs.

We must show up.

We're now going on 13 years.
We're over $1 million.

Now they come in
looking to dig up the victim.

Where in God's name
does it stop?

With one simple DNA test.

All right.

The nightshirt may very well
be new evidence,

but there's no offer
before me

that it even contains
any DNA evidence,

much less exculpatory.

Because nobody looked.

Even so, under Kivlin,
I can't reopen on speculation,

and that's all
you're barking with.

Your motion is denied.

We're still trying.

Lucy got some information
on Earl Taylor,

how he gets his information,

and we're going to go
to Mr. Kearns tomorrow.

He can authorize us
to dig up the body.

Why would any father agree

to let his daughter
get dug up?

It's over.

Not yet.

Where's my mother
off crying now?

She's at home.

I never believed
it would happen.

Even when I got sentenced,

I figured,
you know, it's a mistake.

It'll get cleared up,

but...

we're there.

The day is here.

Jimmy and Eugene are going
to go look at the equipment.

It's only been used once
in the past four years,

so maybe
if they could find...

why don't we just go
and dig up the body ourselves?

We can't do that.

Why, because it's a crime?

I'll serve the time

if I get DNA
that'll clear my son.

We can't do that, Mary.

Listen, it's probably
not a bad idea

for you to go with Jimmy
to see the father.

A mother's agony...

Does he know you're coming?

He doesn't know what
I'm coming to ask him.

Eugene, I guess you should
check the execution equipment.

Who knows?

You okay?

I'm fine.

I'm fine.

How did you expect me
to respond, Mr. Berluti?

Terrible.

According to the mortician,

the nightshirt was folded
and put in the casket.

We wouldn't have to touch
the remains of your daughter.

I can't believe I'm sitting
in my own living room

listening...

Mr. Kearns,

you and I
have never spoken.

We both lost our children
that night--

Mrs. Donovan, you and I
have nothing in common.

If there's DNA that matches
up with my son,

I will drop
any further appeal.

You're asking me...

to dig up
my own daughter's grave.

Mr. Kearns, I would think

a father would want
to know for sure.

Oh, you would think that,
would you, Mr. Berluti?

You won't get closure
unless you're sure.

You put that nightshirt
in the casket

asking for God's compassion.

The compassion
we're asking for is yours.

Please...
I'm begging you.

What will you do?

Just open the lid,

take the nightshirt,

and put her right back
in the ground.

This way.

All set?

Ready.

Commence
with the execution.

On the count of 3.
1, 2, 3.

Done.

Okay, let's start
from the top.

This time we'll do it

as if the condemned
was struggling.

Frutt.

F.r.u.t.t.

Stewart Donavan,
stay of execution.

Yes.

Yes, I understand that
you'll get back to me.

But I just want it brought
to Justice Souter's attention

that the execution date
is tomorrow.

Yes.

Thank you.
Thank you very much.

Supreme court justices

aren't even made aware
of these requests.

Their-- their law clerks
just stamp "denied,"

and then they go out
and play basketball.

(telephone rings)

Hello?

One second, please.

It's the doctor
from the lab.

Dr. Dunham?

Ellenor Frutt.

Are you sure?

Okay.

Thank you.

Let me discuss it here,

and I will call you back.

Thank you.

Well?

There was DNA
on the nightshirt--

two semen stains.

It did not match Stuart's.

(sighs)

Thank you, God.

Thank you.
Thank you, god.

ELLENOR: And we can
document chain of custody.

Dr. Dunham is a DNA specialist
that your office uses,

so, you're certainly aware
of his credentials.

Wow.

I'm hoping we can now offer
a joint recommendation

asking for Stuart Donovan's
release.

Well, I'm not sure
I can do that.

Well, you now have
conclusive proof

he didn't do it.

Did Dr. Dunham put this
into the national data bank?

He did.
There's been no I. D.

Look,
I'm not going to pretend

I'm not shocked here.

Obviously, this comes
as quite a surprise,

but it doesn't clear
Stuart Donovan.

It only means somebody else
could've been there

with him that night.

What?

Stuart Donovan was seen
going into that house.

At 9:00.

No, the witness said
between 11:30 and 12:00.

The witness was a drunk
who saw Johnny Carson on TV

and thought it was
between 11:30 and 12:00.

Mr. Young, we didn't convict

with semen stains
on a nightshirt.

We convicted
with eyewitness testimony.

We convicted
with his confession.

The confession was a lie.

You say so, but I don't
have any evidence of that.

I don't believe
I'm hearing this.

You still plan to execute?

This new evidence only goes
to show somebody else

could have been there
in addition to your client,

or it could have been
an old stain

from the day before,
the week before.

It doesn't disprove
the evidence

against Stuart Donovan.

How could they not
let him go now?

I don't understand.

Come on, back to court.

Federal?

Common pleas.
MARY: Judge Wood?

If we went to federal,

they'd kick us back
to state court on this.

Plus, they definitely
don't want to see me again.

Judge Wood.

He's all we got.

ELLENOR:
Lucy, let's go.
We can't go to federal?

Jimmy, see if there's
a state court law--

Why judge Wood?

Would you shut up?

I'm sorry.

It is just...

I'm so sorry.

Lucy, we need an affidavit
on what Joel Bullock told you.

Jimmy, get a declaration
from Dr. Dunham,

plus the test results.

JIMMY: Done.

And keep calling
the Supreme court.

Harass them.

You want me to argue?

No, I'll do it.

Mary...

it's okay.

Conspiracy?

Now they think
it's a conspiracy?

We're going into court
again in the morning.

Why are they doing this?

Because they're desperate

to believe
they've got the right guy.

Look, we've arranged
to have you transferred

to the court.

Your presence there
could count for something.

Have we heard
from the Supreme Court?

They don't seem

to be returning our calls
this week.

Where's Ellenor?

She's working on her statement
for tomorrow's hearing.

We're not giving up,
honey.

Listen, if we lose,

they'll be taking you directly
from court to the...

the place.

The place...

you mean the place
where they put me to death?

So, if you got people
to say goodbye to here,

you'll have to do that
in the morning.

Whose semen was it?

We don't know.

I don't think it proves
anything, Michael.

There could have been
coconspirators.

And they're going back
into court again?

Before judge Wood.

These lawyers--
they don't quit.

They dug up the rape kit
on their own.

They've--
they're very good, Michael.

How the hell
did they get the father

to agree to an exhumation?

I'm telling you,
they don't quit.

I'll argue.

Really?

This is the killer,
right?

I know it is.

I'll argue.

We're not losing him
the day of execution.

Hey.

Hey.

How's it going?

Okay, I've just--

I've got so much here.

It's just I'm not sure how
to organize it all, you know,

or even if I should
argue everything.

Judge Wood--
he looks like--

I just don't know how long
he's going to pay attention.

When he first
went to prison,

he kept banging his head
up against the bars.

Yeah.

For 38 hours
he kept banging.

He said that he wouldn't stop
until somebody heard the truth,

and then, they put him
on antipsychotic medication

for three years...

three years.

Ellenor, you can't take
this thing too personally.

You won't be
any good to him

if you let your emotions
take over tomorrow.

Maybe you should do it,
Eugene.

I'm not
as ready as you are.

I'm having a hard time
keeping it all sorted--

my anger,
what happened to him,

what truth is relevant
to this type of hearing,

what's not.

I can tell you one thing.

I am never going to do
another death penalty case.

I can't handle it.

I just can't.

(indistinct chatter)

BAILIFF: All rise.

Be seated.

All right, Ms. Frutt,
here we are again.

The floor is yours.

May it please the court,

we now have
conclusive DNA evidence

establishing
it was somebody else,

not Stuart Donovan,

who raped Alisa Kearns
on that night.

You have the reports
in front on you.

You also have the affidavit
of Joel Bullock

outlining exactly
how Earl Taylor learned

the details of the crime,

which details allowed
Earl Taylor to go

to the district attorney
with the falsified confession,

a confession he used to get
his own prison sentence reduced.

You also have an affidavit
from his ex-wife

stating that Mr. Bressler
was habitually drunk

and passed out by 9:00
every night.

Mr. Bressler claims
it was between 11:30 and 12:00

when he saw my client enter
the victim's house,

and he is basing that
on the fact

that Johnny Carson
was on the television.

We have also shown
by affidavit

that Johnny Carson was in fact
on during prime time

the night of the murders--
9:00 p. m. to 11:00 p. m.--

in an anniversary special.

My client was convicted

on three pieces of evidence,
your honor--

a confession fabricated
by a jailhouse snitch,

the eyewitness testimony
of an alcoholic

who was confused
as to what time it really was,

and a blood-type match

which has now been conclusively
disproven with DNA testing.

As a matter of law,

as a matter of simple justice,

Stuart Donovan's conviction
must be set aside,

and he must be released
immediately.

Mr. Stanfield?

(clears throat)

we will not deny to this court

we were shocked
by this DNA evidence.

We then tested the rape kit

and learned just 10 seconds ago

it, too, did not match
Stuart Donovan.

My first reaction yesterday
to the DNA discovery

was that Stuart Donovan
should, in fact, be set free,

but when we stop
to think about it,

nothing has changed
so dramatically

that it would alter
the verdict.

As Ms. Frutt correctly states,

Stuart Donovan was convicted
on three pieces of evidence--

first, the confession.

That confession still stands.

It was introduced
into evidence at trial

and challenged at trial.

Defense isn't free
to continue challenging it

after the verdict
without new evidence,

and they don't have any.

They can argue all they want
that it was fabricated.

That argument was made at trial
and rejected by the jury.

Second,
the eyewitness testimony--

again,
the defense argued at trial

that Mr. Bressler
must have been mistaken,

but there was nothing else

to controvert
that eyewitness testimony,

just as there is nothing else
to controvert it today.

Third, the blood match--

if you look
at the court transcripts,

this was never a big part
of the prosecution's case.

If you review
the closing arguments,

you'll see we hammered
two points--

the confession
and the eyewitness testimony.

Now we can all say,

"I wouldn't have agreed
with the jury on those points,"

but that is not
the standard for review.

The question you have to ask

is whether this new evidence
is of such character

that a different verdict
will likely result.

The answer to that is "no"

because there is nothing
to disprove

either the confession
or that testimony--

not then, not now.

All right.

I'll grant you that,
Mr. Stanfield.

The court has no basis
to throw out the confession

or the eyewitness testimony,

but this new DNA evidence--

doesn't that tell us
somebody else did it?

No, your honor, it tells us

that somebody else
could have been there.

Somebody else made love to her.
We have no time line on that.

It could have been earlier,

but it doesn't change
the fundamentals of our case,

and let's remember this--

Mr. Donovan didn't confess
to Mr. Taylor

that he raped anybody

or that he made love
to the victim

before killing her.

He confessed only
to murdering the two women.

Hence, this new evidence
does nothing to undermine

the veracity
of that confession.

Do you still think
he did it?

My personal beliefs
aren't relevant.

They're relevant to me.

Do you think this is the man
who killed those women?

I do, your honor. He had
a heated fight with Alisa Kearns

just the day before.

He refused to accept
the end of the relationship.

There was no sign
of a forced entry,

so, the idea
of a home invasion--

no fingerprints but his,
no motive for anybody else.

Look, he confessed
to the crime.

You don't free a man
just because it turns out

that somebody else may
have been there at the time.

But you have to admit
it does change things

if somebody else was there.

Not enough to upset a verdict.

Recently,
the Texas court of appeals

was faced
with this exact situation.

The DNA turned out
not to match the defendant.

The court refused
to grant a new trial,

ruling that the DNA results
did not preclude

the presence
of a coconspirator.

That was the case there.

It's what we have here.

You have precedent.

You have the verdict
of a jury.

This court should honor both.

You can't rest.

He was good.

One more minute,
your honor?

Go ahead.

Five weeks ago
when I took this case,

I almost immediately started
getting emotional about it,

and I couldn't figure out why.

I don't know Stuart Donovan.

I realize now that what
got to me is the reality

that people don't get
fair trials in this country.

They often don't.

Ms. Frutt, I was the judge
on your client's trial.

And I don't doubt that you did
everything right, your honor.

But Stuart Donovan
had a public defender

who had just finished
another capital case

48 hours
before his trial began,

and that public defender
wasn't ready for this one.

He didn't discover a lot
of the things he could have.

Defense lawyers--
especially public defenders,

especially those taking
court appointments--

we just don't have
enough time.

We just don't have
the resources,

and it's understandable.

Things are bound
to fall through the cracks.

How could they not?

But I have a man
facing death here.

Technically,
from an evidentiary standpoint,

Mr. Stanfield is right.
The confession still stands.

Technically,
from an evidentiary standpoint,

the eyewitness testimony
is valid.

The time to impeach it
would have been at trial.

That never happened.

Technically, the prosecution's
two big pieces of evidence

still hold up...
technically.

In reality,
a man is going to be executed

for a crime he didn't commit.

And as I have been pounding
my head up against walls,

I have been continually hearing,

"Ms. Frutt,
there is a system--

a system of evidence
and appeals and..."

The system doesn't always work,
your honor.

In the last 10 years alone,

over 44 people have been
released from death row

for crimes they didn't commit.

The system uses
jailhouse snitches

who fabricate confessions.

The system has police lying.

The system is
very, very fallible,

and maybe it is understandable.

Given the enormous volume
of criminal cases today,

mistakes happen, lies happen.

It is a byproduct of the system
that I can almost comprehend.

But what I can't fathom
is when we have the ability

to find out the truth
through DNA evidence,

we don't.

In 48 states,
this being one of them,

prisoners do not have the right
to a simple DNA test

that could prove
their innocence.

You wouldn't let us
have one, judge.

We had to go
to the father of the victim.

Miraculously, he let us
dig up his daughter.

And after we did that,
did the test on our own,

we pretty much proved
Stuart Donovan's innocence,

and still it hasn't ended.

Mr. Stanfield now gets up,

changes
the prosecution's theory,

and refocuses
the court's attention

on eyewitness testimony
and a jailhouse informant,

which everyone in this room
regards as suspect.

As technically admissible

as it may be
on evidentiary grounds,

none of us in this room
fully believe that snitch.

None of us fully trust
that eyewitness account,

and a man is going to die.

Is our system
about getting convictions?

Is that it?

My co-counsel Eugene Young

told me not to take
this case personally.

How can I not?

How can't we all?

A man...

an innocent man
is going to die.

As human beings,

as officers of this court,

as players in this system...

how do we not
take that personally?

I hear Ms. Frutt's frustration,
her emotion.

I'd like the court
to consider it from our side

and from the victim's family's.

You find the person
who commits the murder,

you put that person on trial,
you secure a conviction.

That's not easy these days.

But even when you're
lucky enough to get that far,

the defense attorneys
keep coming back

over and over and over again
raising constitutional claims,

saying that
the previous attorneys

weren't good enough.

12 years they've been
coming back on this one.

12 years this father,
this husband

has been waiting for this
to be over,

and this on a case
where the defendant confessed,

this on a case where we have
eyewitness testimony.

Most times,
the defense attorneys

are in here trying to free
their clients

on technical grounds,

exalting the system
above all else.

But here, where the system
has been adhered to,

where the evidence
is all sound,

technically,
they're in here...

we have his confession
on record.

The jury believed
that confession.

Why don't we just
let everybody go?

I am persuaded
by defense counsel's arguments

that before we put
a man to death,

we should be sure
of the person's guilt

and not simply limit
our inquiry

as to whether the trial
was technically sound

from an evidentiary standpoint.

That seems...

so obvious.

But Mr. Stanfield's contention
is also a valid one.

We could keep re-evaluating
evidence ad nauseam forever.

The point of a trial

is to reach a final verdict
on the facts.

And though it would be nice
to reconsider the confession,

take a second and third look
at the testimony,

if we did that for one,
we'd have to do it for all,

and if we did it for all,

surely the court dockets
would clog beyond repair,

and there would be no justice
for anybody.

Ms. Frutt,
it was the confession

and the eyewitness testimony
that convicted your client.

Both of these elements were
vigorously challenged at trial.

And though you'd clearly like

to keep on renewing
the challenge,

under the law,
you don't get to,

not with what
you've brought me.

But, Mr. Stanfield,

had you had this DNA evidence,

clearly,
you would have investigated

the possibility
of another suspect.

You didn't.

I am an old man.

I look at each cigarette
as possibly my last.

My last breath
won't be spent executing a man

I now think
is probably innocent.

The conviction is set aside.

Mr. Donovan, you are free with
the apologies of this court.

(bangs gavel)
Adjourned.

(indistinct chatter)

How about that?

Yeah.

LUCY: Congratulations.

MARY: Thank you.

(crying)

(music playing)

You stinker!