Season 8 Episode 10

False Witness

Aired Tuesday 8:00 PM Dec 14, 2010 on CBS

Episode Recap

An alarm goes off at 8:00 and a young man wakes up. He wanders out of his bedroom and through a somewhat sterile house, and trips over a bat. He sees some left-over pizza on the coffee table and snags a slice. Opening the front door, he retrieves the newspaper, and is surprised when a DVD with "Play Me" written on it falls out. He pops it into the DVD player, and sees a video of someone walking up to his front door and the door being unlocked by a latex-gloved hand. The intruder walks through the house and seeing the young man lying asleep in bed, he places a knife against his neck. The young man gasps and grabs his neck in consternation. (Credits) McGee and Ziva are walking into the office as McGee tells Ziva about a dream he had the night before – Gibbs speaking in an Israeli accent, Ziva sounding like Jimmy Palmer. Ziva is laughing, and as they turn the corner, they see Tony sitting at his desk, busily working. He greets them formally: "Agent McGee. Probationary Agent David. Good morning." McGee and Ziva stare at him a moment, and Ziva murmurs, "It looks like Tony," but McGee disagrees: "It doesn't sound like him – what are you up to, Tony?" Tony tells them he is catching up on old paperwork. Suspicious, Ziva whispers to McGee that she thinks they are being set up for something, and McGee tells her they should ignore him. Playing along, McGee tells Tony that if he's doing old paperwork, maybe he could do his Canadian expense report. To his surprise, Tony hands the completed report to him, with a terse explanation that he got in early and had some time to kill – and, by the way, McGee should sign the Get Well card for Vance. McGee is cautious: "The last time you did my expense report for me, you reclassified my meals as 'livestock feed'." Tony, not looking up, replies, "Well, that was childish." McGee agrees: "I was audited!" Tony calmly replies, "Well, that makes us even." Gibbs enters, followed by Deputy D.A. Gail Walsh, and tells them that they have a missing petty officer. Ziva is confused – there were no hits on the NCIC. McGee asks if the petty officer has been missing more than 30 days. The missing officer is the young man from the opening credits, Petty Officer Jerry Neisler, and Walsh tells them that he is the only witness in a capital murder trial. As Ziva reviews his file, Tony swoops in, quickly extracts a photo of the petty officer, and makes copies. Without thinking, McGee asks, "Does anyone know where he is?" Gibbs gives him A Look, and McGee quickly realizes, "That's what we're going to find out." Walsh explains that she's bringing in NCIS because her trial starts in two days, and without Neisler, the killer will walk. As they head out, Tony distributes copies of the Neisler's picture. Ziva eyes the picture, and then eyes Tony – his efficiency is unnerving. At Neisler's house, they photograph the half-eaten pizza slice, the bat, and the DVD (which is empty). Walsh explains that she dropped him off at the safe house six days previously and he was supposed to check in every day. Neisler told her that he planned to go hunting with a friend who was headed back to Afghanistan, but disappear, and except for one gas charge on his credit card, there's been no sign of him. Upon investigation, the friend didn't know anything about the hunting trip. Ziva peers into the refrigerator and sees a dead turkey, still feathered, and comments that he obviously left in a hurry. Gibbs asks Walsh if Neisler's testimony put him at risk and she says that maybe if it were a Mafia trial, but in this case – no. Gibbs is puzzled – everywhere he turns, there's another aluminum bat propped against a counter, a chair, in the guest bedroom. McGee reports that the neighbors didn't know anyone was staying in the house. Tony, surveying the litter of take-out containers on the coffee table, suggests that they survey the local take-out places. "Good idea," says Gibbs, but Tony responds, "It was actually Agent McGee's suggestion." McGee looks at Tony incredulously. In the bedroom, Walsh is chatting to Ziva: "Gibbs looks like a capable investigator." Ziva smiles and replies, "None better." And – Agent DiNozzo?" Ziva pauses for a moment, and answers, "He is also capable." She continues to photograph the bedroom. "And . . . single?" inquires Walsh. Ziva looks at her in surprise. "Excuse me?" Walsh explains that she noticed that Tony wasn't wearing a ring, and then suddenly apologizes. "Oh, I'm sorry – are you and he . . . ?" Ziva protests vehemently: "No! No! Our relationship is strictly professional – and barely that!" Walsh smiles like a cat with a dish of cream: "Well, then, you wouldn't mind if I . . . ?" Ziva reminds her that they are in the middle of an investigation, and she is in the middle of a trial, but Walsh shrugs and says that "I like to keep my options open. Did you know that the majority of people meet their spouses at work?" Ziva looks at her for a moment and then grimaces, "Not something that I have high hopes for." Tony and McGee are gazing at the dead turkey in the refrigerator, and Tony says briskly, "OK, let's bag it." McGee is surprised again: "Is that all you're going to say?" Tony, stone-faced, asks, "What else am I supposed to say?" McGee retorts, "Oh, something like, 'What do turkeys eat at Christmas? Nothing, they are already stuffed!'" Tony frowns at McGee, and asks, "Are you feeling alright?" Tony says, with a straight face, "I'm feeling fine, why?" Ziva interrupts and shows them an empty shot-gun case – Neisler has taken his gun with him, wherever he has gone. Gibbs asks to see Walsh's case files, and she agrees readily. Batting her eyes, she asks Tony to accompany her back to her office to retrieve the files, "because they are heavy, and I need someone with strong arms." Gibbs rolls his eyes at the obvious come-on and smiles an aside, and McGee whispers to Ziva, "Goodbye, Mr. Professional!" To their shock, Tony refuses, "No, I better stay here. Agent McGee will help you." Walsh and McGee are taken aback, and Tony walks away, telling Gibbs: "Baseball bats and a shotgun – the petty officer was worried about something." Gibbs watches Tony walk away, and then turns to Ziva, McGee and Walsh – with identical looks of surprise on their face. Back at the office, Tony and Ziva are giving Gibbs a briefing. Neisler was born and raised in Charlottesville, and served two tours in Iraq before being reassigned to the States. His record is "interesting" – despite good reports from his commanding officers, he was repeatedly transferred. "Doesn't play well with others?" inquires Gibbs, but Walsh disagrees, explaining that Neisler's parents were both psychologists, and he was an only child. "Which means what, exactly?" asks Ziva. Walsh tells her that she'd have to meet him to understand. Tony continues the briefing with a PowerPoint presentation detailing various reasons why Neisler may have lost contact. McGee and Ziva are dumbfounded and intrigued. First reason: Witnesses with a personal relationship to the accused are sometimes reluctant to testify. McGee interrupts. "Yeah – like . . . you know?" waiting for the movie reference. Tony is silent. "Kinda like Robert DeNiro in 'Sleepers'?" Ziva agrees, but Tony remains silent, and then goes on to cue up "Number Two: Someone is threatening the witness." Walsh objects, and points out that he would have told her if there had been a problem, but Gibbs points out that maybe he can't. Exasperated, Walsh gestures to the files, and tells them that the killer's name is Samuel Hayes. As she explains that Hayes' wife is dead and his daughter is a ward of the state, Tony begins to move the boxes over to his desk, lifting them easily over Walsh's head. Tony and McGee watch with a frown, and Ziva whispers, "OK, this is getting really irritating." "He's making us look bad," McGee agrees, but is interrupted by Gibbs: "McGee, do you have anything?" McGee has nothing, but attempts to add to the list, "Of course, the disappearance may not have anything to do with the trial at all." At Gibbs' disbelieving stare, he trails off, ". . . or it does." Walsh asks Gibbs how he wants to split things up. She offers her resources to track down BOLAs and check hospitals. Gibbs tells her that NCIS will track his previous movements, starting with his hunting trip. In Autopsy, Ducky and Jimmy are perched at the desk, with a small Christmas tree in the foreground. Ducky is reciting, "Etymology. Archeology. Sociology. Fluviomorphology." and explains to Jimmy that the latter is the study of the formation of river channels. Jimmy is underwhelmed, but Ducky enthusiastically charges ahead: "It's almost as fascinating as hymenopterology. Jimmy stumbles over "hymen", but Ducky explains that it is the study of inspects – specifically, those with four diaphanous wings. Jimmy studies the list he is compiling, and then as he flips through numerous pages, tells Ducky that they may have to prune the list down and that Facebook has a limit as to the number of interests. Gibbs, walking in, asks, "Facebook?" Ducky agrees, and Gibbs, thinking for a moment, offers, "That's that thing that some people . . . do stuff with?" Ducky offers, "The term is 'social networking'," and then goes on to explain that if he wants to maintain his proficiency with psychological autopsies, he has to stay current with the latest cultural developments. Gibbs is bored: "How about staying current on this case, Duck?" Ducky deflects the pointed question: "I may be new to social networking, but the Mallards are masters at multi-tasking!" and rises to approach a table. With a flourish, Jimmy removes the cover of the corpse to reveal, among a flurry of feathers – the turkey, neatly autopsied. Unsurprisingly, the turkey died of a gunshot wound to the breast. But Ducky is intrigued by the yellow and tan tail feathers. He goes on to explain that the East Coast turkeys all have brown tail feathers, and that this turkey is a Rio Grande turkey, and are found almost exclusively in Kansas, Oklahoma and Texas ("oh, Mr. Palmer, add ornithology to the list."). Palmer asks the obvious question: "So, where did Petty Officer Neisler get this one?" Ducky suggests a cross-country hunting trip, but Gibbs says that his commanding officer told him not to leave the state before the trial. Ducky suggests that if Gibbs wants to know where Neisler was, then he should figure out where the turkey came from. Jimmy, smiling, can't help himself: "Gobblegobblegobble!" Gibbs stares at him, but Ducky laughs. In Abby's lab, Gibbs walks in to see Abby doing a somewhat jerky dance. In the background, Scott Joplin's ragtime song Maple Leaf Rag is playing. Abby asks Gibbs to guess what she is doing, and he guesses correctly: "The turkey trot?" She's impressed, and continues dancing, inviting him to join in. He looks at her, and she stops, then mischievously tells him, "Oh, I guess you're here to talk turkey, eh?" Abby tells him that she ran the turkey's DNA through a database of NWTFDNA – the National Wild Turkey Federation DNA records. "Turkey DNA?" asks Gibbs incredulous, and Abby agrees that it is a wonderful time to be alive. It turns out that if a state has a turkey overpopulation problem, they will catch and release to other states that need a boost. "They keep records?" asks an amazed Gibbs, and Abby confirms: "Good ones!" and goes on to tell Gibbs that there was a pre-Christmas release two weeks ago in Virginia, and with the DNA, she can pinpoint which hunting ground the turkey was released to. Gibbs identifies the area as two miles from the last hit on Neisler's credit card. Abby suggests that perhaps he has returned to familiar hunting grounds to hide out. At Gibbs walks out, Abby starts up the ragtime music and continues dancing. Gibbs and Ziva arrive at the hunting grounds, and Ziva is startled as a hunter walks by with a large turkey thrown over his shoulder. She declares that she has seen enough dead turkeys, but Gibbs reminds her that she'll probably see another one Christmas Day. She tells Gibbs that she has plans to go skiing with her friend from Miami. "He said he lived in the French Alps for a while and that he misses the snow." Gibbs offers a skeptical "uh,huh," and then stops a hunter to ask if they recognize Neisler's photo. No hits. Ziva is getting impatient – this is the fourth park with no results. "Perhaps Abby is sending us on a wild . . ." she stops as a hunter walks by with a goose. "Never mind!" she declares. A hunter rises from a group and starts to walk away. Gibbs notices him just as the other hunters recognize him. They stop him with their guns pointed at him. He yells over at Gibbs, "I promise I won't testify!" and Gibbs tells the hunters that they'll take it from there. He shows his badge, and Neisler relaxes. "Oh, thank God – when I saw you flashing my photo – she's got the eyes of a killer, and you in that suit . . . figured I was dead." Gibbs pats him down, and Ziva asks him if someone is threatening him. He tells her that he received badly-worded emails telling him that they would kill him if he testified, so he thought he'd lay low until the trial, but they found him. He shows them the "Play Me" CD, and as Walsh calls, he warns Ziva not to answer it: "She was the only one who knew where I was – she has to be in on it!" "The D.A.?" asks Ziva with surprise. Gibbs answers the phone, and Walsh asks, "Any luck finding Jerry?" "Nah," answers Gibbs, looking at Neisler, "still haven't found him, yet." In the office, McGee, Tony and Gibbs are reviewing the video, and McGee tells Gibbs that Abby has the original down in the lab, trying to identify who made it. Tony starts to comment, "The ol' knife to the neck . . . reminds me of . . ." but stops. McGee asks eagerly what it reminds him of. "What? An old fraternity prank? A 'Halloween' movie?" Tony doesn't meet McGee's eyes, but murmurs, "I know what you're doing." McGee, exasperated, declares, "And I know what you're doing." "What I am doing?" asks Tony tonelessly, and McGee snaps, "I don't know! But it's bugging me to such a degree that . . ." he stops suddenly as Gibbs thwacks him upside the head with a file, with the admonition, "I know what we're not doing." Tony continues as if nothing has happened: he has run a complete background check on the D.A. and nothing has jumped out. McGee points out that she could have told someone, but Ziva joins them and tells them that she has made discreet inquiries, and no one, not even Walsh's assistant, seems to know where Neisler was staying. McGee admits that he wasn't able to trace the emails, but the intent was clear. "To stop him from testifying," confirms Tony. McGee goes on to say that it obviously revolves around the case, and suggests splitting up the case files into three . . . Tony interrupts, diving into a succinct review of the pertinent facts of the case files. He has obviously already reviewed the files. Hayes, 41, is a former private investigator who spent years digging up dirt for bigwigs. "But, despite his somewhat grimy job, he was a family man, and had a reputation as a stand-up guy." Hayes started falling apart and drinking when his wife was killed in a car accident and his daughter became a state ward. Gibbs guesses: "He ended up on the street," and McGee agrees, stating that Hayes worked as muscle for whoever would hire him. Ziva adds that one evening, he mugged a brother and sister in an alley, shooting and killing the sister, and Neisler saw the whole thing. Gibbs tells Tony to find out who the killer worked for, Ziva will stay on the D.A., and McGee's job is to find the brother. In the conference room, the brother, Matthew Gray, tells Gibbs that his sister had taken him out to Benihana's for his birthday – a family tradition. After their folks died, it wasn't the same, but his big sister had custody of him and tried to keep things normal. Gray goes on to explain that they took a shortcut home, and that this guy pulled a gun on them. "Katie didn't even hesitate – she jumped right in front." Gray pauses, and then looks away. "I don't remember what happened next – just the blood," he says slowly, as he looks at Gibbs. Gibbs asks him if he saw the killer, and Gray says that he couldn't be sure, "but made the mistake of telling the police that." Gibbs says mildly, "It's not a 'mistake' – you want the right guy to pay for this." Gray protests that they know who the right guy is, there was a witness. "Or at least, there was – the D.A. told me that he's missing." Gibbs is thinking. "Did she say anything else?" he asks Gray. Gray tells him that Walsh said that NCIS was looking for them, "but you have to look harder! That witness saw everything! My parents raised us to forgive and forget, but all I want right now is . . ." "Payback?" suggests Gibbs. "Justice," Gray responds firmly, and begs Gibbs to find Neisler. In the lab, Abby is measuring Neisler's facial feature, and tells him that he has very symmetrical zygomatic arches (cheekbones). Neisler doesn't care, as long as it helps catch whoever is after him. Abby explains that precise measurements will help her figure out the size of the hand holding the knife to his throat, which will be useful if they find a suspect. "Hmm. Smart," muses Neisler. "I can understand why McGee was interested in you." Abby turns. "Excuse me?" she asks, and Neisler explains that McGee wasn't too happy when he had to leave Neisler alone in Abby's lab. He trails off, and comments offhandedly that he loves the song that is playing. Abby tries to explain that McGee was protective of her because they have had problems with visitors in her lab before. "Protective of what, your butt?" Neisler inquires, startling Abby. "He couldn't stop checking it out when your back was turned," he continues. "Really?" drawls Abby. Neisler continues, "But I can see why you'd want to keep things casual." Sighing, Abby asks, "Why is that?" Neisler explains, "What if he's 'the one'? You're obviously married to your work, it's too soon to meet 'the one'." Abruptly, Abby turns off the music, and tells Neisler they are done. We hear a door, and without turning, Abby tells Gibbs, "Gibbs, can you make him go away, please?" Gibbs sends Neisler out of the lab with an escort. Abby has reviewed the forensics from the murder trial, and all they have is gun shot residue on the alleged killer's shirt. "It means he fired a weapon," she concludes, and Gibbs finishes, "But not who he fired at." Abby nods in agreement, and points out that the cases is going to hinge on Neisler's testimony, adding sarcastically, "and I'm sure he's got a lot to say." Tony enters with a file, and adds, "I've got someone else who might." He has the list of people the killer was working for: drug dealers, loan sharks – people who will be hoping that he beats a murder rap. Gibbs observes that if he's convicted, he could cop a plea by giving evidence in other crimes, and Tony agrees that it gives others a reason to shut Neisler up. Tony points out one person in particular – Smitty Brown – dealing in black market weapons, drugs, and who has been visiting Hayes in prison. "Pick him up," orders Gibbs, but Tony admits that he can't find him. "He disappeared the day that Jerry got the DVD." Gibbs tells Tony that he wants to talk to Hayes and Tony tells him that he has already made arrangements. "Good job!" Gibbs praises Tony, and begins to walk away, but then turns and adds " . . . again." "Thanks, Boss," says Tony, but Gibbs is puzzled. "Are you feeling ok, DiNozzo?" and Tony meets his gaze directly. "Never better," he declares. "Hmm," says Gibbs as he leaves. As Tony and Abby are left in the lab, Abby comes up to Tony and warns him, with a face, to stay away from Jerry. Tony looks at her sideways. Gibbs enters the jail's interrogation cell to talk to Hayes. "What did I do now?" inquires Hayes. Gibbs shows him a picture of Brown and asks him if he knows him. Hayes says that he does: "I help with collections when people are behind with their payments." Gibbs asks him if he knows where he is, and Hayes asks, ironically, "Now, how would I know that?" Gibbs points out that Hayes has been his only visitor, but Hayes tells Gibbs that he can't help him. Gibbs asks him what they talked about, and Hayes gives him a smart-mouthed answer: "Keynesian economics. Paleolithic migrations. You know – light stuff." At Gibbs' stare, he mumbles, "I don't remember." Gibbs shows him a photo of the girl he is accused of killing, before and after the murder. "Do you remember this?" he inquires. "Did your old boss tell you that if you kept your mouth shut, he'd take care of your witness for you?" Sullenly, Hayes tells Gibbs, "I don't have to answer you." "Where is he?" Gibbs repeats. Hayes is uncooperative. "What are you going to do? The D.A. is already asking for the death penalty." "Yep, Gibbs agrees, inviting an argument "it's an airtight case." But Hayes isn't biting. He asks for the guard to return him to his cell, and leaves Gibbs. Gibbs and Neisler enter Gibbs' house. Neisler looks around and asks he should take his shoes off. "Wish you wouldn't," answers Gibbs as he moves toward the kitchen. Neisler comments that he has never been in a safe house before, and asks what is for dinner. Gibbs tosses him a can. "Beans." Neisler glances at a small framed photo on the mantle – a old "Merry Christmas" photocard, with Gibbs, Shannon and Kelly. Neisler asks Gibbs about his meeting with Hayes, and Gibbs says that he thinks that Hayes knows something. "I saw him at a hearing," offers Neisler. "He seems like a sad, sorry guy." As Gibbs finishes opening the can of beans, Neisler adds, "Kinda reminds me of you." Gibbs looks up in surprise as Neisler continues, "Both alone. No family." Gibbs is annoyed. "Hey!" he interrupts, but Neisler keeps on with his observation, motioning toward the photo on the mantle. "It's the same – look at her. You can tell she had good taste. You think you could get away with this lumpy couch if she was still here? But it seems like you were trying to make some changes – some sort of home makeover? Finally cleaning out the magazines?" he inquires. Neisler is a man who doesn't seem to have a filter – anything that comes in his head comes out of his mouth. Annoyed, Gibbs tosses him blankets and tells him that there's a cot in the basement. Neisler asks if he can borrow the phone to call his commanding officer and that he had promised to tell him where he would be that evening. Gibbs stops in mid-stride to turn and stare at Neisler. "You spoke to your C.O.?" Gibbs asks carefully, and Neisler agrees, saying, "Yeah, I called him this afternoon, I felt bad about not giving him a heads-up." Seeing a car pull up, Gibbs quickly moves to the window and orders Neisler down to the basement. Neisler scrambles as Gibbs stands by the window, peering out. He then sits down and waits – in a moment, Walsh flies through the front door, demanding to know where Neisler is. "He's in the basement," replies Gibbs calmly. Walsh declares that Gibbs has no right to withhold her witness from her case, and Gibbs corrects her. "It's our case. We need to talk. Sit down." Walsh refuses, telling Gibbs that he has done enough talking, and asks why he visited Hayes in jail. Rising, Gibbs tells her, slowly, that he doesn't need her permission, and then she tells him that there was an attempt on his life after Gibbs' meeting with Hayes. The trial has been postponed until Hayes recovers, which further jeopardizes Neisler's life. "You're not helping my case," she snaps. "You're going to ruin it!" Walsh follows Gibbs into the office, demanding that he turn over Neisler. Gibbs tells her that that's not going to happen until he finds out who is trying to stop him from testifying. Ziva, McGee and Tony listen to the heated exchange as Walsh declares, "We want the same thing!" Gibbs is skeptical, and points out that Neisler said that Walsh was the only person who knew where he was. Walsh is outraged that Gibbs would think she is trying to sabotage her own trial, and suggests that whoever was trying to kill him probably followed him. There is a silence, and Gibbs glances at Ziva, inviting her to jump into the conversation. "We think we know who's after Jerry," says Ziva. "The accused murderer . . ." and Tony interrupts with a click of the briefing screen, "has been visited several times in prison by this man." Walsh asks who it is, and they identify him as Smitty Brown, a former employer who may be afraid that Walsh will talk if convicted. Walsh asks why he hasn't been picked up, and Gibbs admits that they cannot find him. She smiles, and tells him that she can probably help with that, since she has a large stable of informants on the street. Gibbs agrees, but is firm that Neisler stays at NCIS. Walsh storms out, and everyone looks at each other. McGee tells Gibbs that Abby has called and has new information. Ziva wonders if she should follow Walsh, but Gibbs decides no. In Abby's lab, she is playing a video of two young men, where one is being dared to chug eggnog. She tells Gibbs that there were no clues on the DVD, but on the DVD's picture, there are two dead pixels, which had to come from a particular camera, and the chances of two camera have the exact same dead pixels was extremely rare. She then started scanning other video upload sites to find other videos with the same missing pixels, and discovered this particular eggnog video. She goes on to say that she found four videos that matched. She then measured the hands in the video, and compared them to the hand in Jerry's picture – and she found a match. The cameraman's name is Joe Casey. Gibbs tells her to send it up to McGee for a BOLO, but Abby tells him that Joe has been in the county morgue since this morning. In Autopsy, McGee is giving Ducky the particulars. "Joe Casey, 23 years old, and already had a record for B&E, larceny and grand theft auto." McGee adds that they believe that Smitty Brown hired Casey to scare the witness, and then took him out when he was done. Jimmy and Ducky are examining the body, and Ducky tells McGee that the medical examiner believed that the death was an animal mauling. Ducky trails off in mid-thought, and Gibbs guesses, "But you don't?" After a moment of thought, Ducky turns back to the body, and points out things that puzzle him – the liver wasn't mauled so much as inflated to the point of exploding, and several of the organs seem to have freezer burn. Again, Ducky trails off, and Gibbs asks him why he is so distracted. Jimmy tells him that since Ducky's profile was posted on Facebook, he has had several emails from "lady friends." Ducky shrugs helplessly, and adds, "Well, some of them are quite provocative! I'm having difficulty concentrating!" McGee and Gibbs almost hide smiles, and Gibbs gently redirects: "Freezer burn?" Ducky confirms that the organs in the thoracic cavity had freezer burn, and he can't explain it, but Jimmy has noted that the man's tattoos were probably made within minutes before his death, since the puncture wounds are still fresh. "So, if you can find the parlour . . ." McGee finishes the thought, "Then someone might have seen something!" and dashes off to start searching. As Gibbs leaves, he tells Ducky, "Good work, Duck." Jimmy starts to protest, "Actually, I was the one . . ." but Gibbs stops him with A Look and Jimmy trails off. Jimmy turns to Ducky and repeats Gibbs: "Good work, Dr. Mallard." Ducky grins. McGee and Ziva pull up in front of a store, as Ziva describes the area. Casey's body was found behind one building, and the tattoo parlor on the corner is the only tattoo parlor within a five-mile radius. McGee asks Ziva if she has copies of Casey's photos, and she says that yes, Tony had them waiting for her on her desk – and had also updated her BOLOs on Smitty Brown. She and McGee both roll their eyes in exasperation, and McGee comments that the joke is getting pretty old. Ziva observes that she doesn't think he is joking. McGee points out that Tony is a great investigator, but the closest he ever came to enjoying paperwork was renewing his Maxim subscription. Ziva agrees, and confides that that is why she is so concerned. McGee agrees, and tells Ziva that Tony gave him half of his French fries at lunch. Ziva earnestly tells McGee that one of them has to confront him, but McGee asks, "And tell him what – 'Why aren't you acting like a 14 year old anymore?'"? Ziva corrects him: "Well, I was going to say at 12 year old – but YES!" Suddenly, a man walks out of the tattoo parlor. McGee stares at him, and then asks Ziva, "Is that Smitty?" Ziva, watching carefully, agrees that it is. McGee calls out, "Smitty!" Smitty stops and turns and asks, "Who wants to know?" McGee and Ziva flash their badges and McGee tells him, "I'll make you a list." In Interrogation, Smitty asks if he gets a phone call. Gibbs is seated, with Tony standing stiffly behind him. Gibbs silently hands Smitty his keys with a knife attached, and Smitty gestures to a bag, telling Gibbs that he's going to want the bag, too. Gibbs places a picture of Casey on the table, along with a knife in a container. Tony inquires, "You gonna want that back, too? It's called a wasp knife, right? Used by hunters to take down big game? Injects compressed gas, freezing and exploding internal organs?" Gibbs tells him that they found it in Smitty's car, and Tony tells him, more succinctly, "it's a murder weapon." Smith tries to laugh, and tells Gibbs that he doesn't even know the guy, why should he try to kill him? Gibbs suggests that he was tying up loose ends, but Smitty says he doesn't have any loose ends. Tony, not moving, suggest that Smitty is afraid that if Hayes is convicted, he will turn Smitty in for a lighter sentence. Tony goes on to outline that Smitty hired Casey to intimidate the witness, and then killed him. Smitty tells them that they have it all wrong, but Tony keeps going relentlessly, saying that when he failed to get to Neisler, he tried to have Hayes killed in prison. Smitty tells them that he didn't try to kill anyone – instead, Casey tried to kill him. He says that he heard that someone was trying to mess with the witness from the Hayes trial, and he put the world on the street that he wanted to know who it was, and that was how he met Casey. "I don't know who he was working for, but it wasn't me," he declares. "I told him to lay off the witness, he made a move – it was self-defense. End of story." Tony is unbelieving: "You told him to back off?" Smitty explains that he doesn't want Hayes out of prison – he wants him in prison, because he needs someone inside the joint to help him with "a little side-business" he had going. His last dealer got executed, and Hayes had agreed to be his new guy. Gibbs wants to know what Hayes got out of it, and Smitty said that he made deposits on a life insurance policy. "Life insurance? For a guy headed for the death penalty?" asks Tony. Smitty tells him he doesn't know what the deal is, he just knows what the deal was – and he can prove it. In the office, Neisler has gotten under Ziva's skin, and we hear him protesting, "Well, you and Tony are . . ." as Ziva cuts him off: "We are just friends! There is nothing different about him!" "Alright," agrees Neisler doubtfully, and Gibbs then shows Neisler the photo of Smith. "Do you recognize him?" Neisler glances at the screenshot of Smitty's license and says, "No." McGee reports that the rest of Smitty's story checks out – the inside guy in the prison that was dealing for him was recently executed, and that Smitty is, indeed, making the payments on the insurance, even to the point of calling to confirm that the policy will pay even if Hayes is executed. "Who is the beneficiary?" asks Gibbs, and Ziva turns to Tony, expecting him to jump into the report. Tony silently hands her the screen control and she stares at him for a moment open-mouthed before she recovers and, taking the remote control, pulls up a picture of Hayes and his family and confirms that the beneficiary is Hayes' daughter. Tony observes there are no leads on who tried to kill Hayes in prison, but Ducky interrupts and tells them that that's because no one tried to kill Hayes. He has just gotten off the phone with the prison doctor, who thinks that Hayes' wounds were self-inflicted, disguising a suicide attempt. McGee protests, "But if he got off, he was just going to walk," and Ziva agrees, "Yes – why try to kill himself?" Unexpectedly, Neisler, who has been absorbing the conversation, interjects, "Seems pretty obvious to me." They all stare at him, and he continues with his explanation: "I'm sure you would have figured it out eventually, but Hayes doesn't want to beat the murder rap. He's given up. He just wants to die and leave one last gift to his daughter. But, he thought I was missing, which meant that he'd go free – so he tried to kill himself." He sighs and shrugs. "Another sad guy." Gibbs turns and glares at Neisler. Ziva asks the next question: "So, who is trying to get this guy out of prison?" McGee is pecking away at his computer, and says that he has found the call log from Smitty's cell phone, with several calls from this number. It looks familiar. Gibbs identifies the number: "District Attorney Walsh." Tony adds, "The same District Attorney Walsh who didn't know who Smitty was?" They head out. Walsh is pacing in the interrogation room alone, keeping up an indignant monologue. "You can't keep me here! I have a date in two hours!" From the observation room, Tony and Ziva are watching her, and Ziva turns off the intercom. Tony, wincing, thanks her, commenting that he was getting a headache. "Really?" asks Ziva incredulously. "This is usually your favorite part, getting to 'watch reality TV at work', as you call it!" Tony tells her solemnly, "People change, Ziva," but Ziva is having none of it. "Yes – but not that quickly." They exchange a look, and Ziva continues. "And yet, here we have this -- new Tony, who arrives early, leaves late, turns down advances from beautiful women and has not made a single joke in –what? – the last two days!" "Are you sure?" asks Tony, and to Ziva's affirmative snort, he snatches the file back from her and says, "Well, we are in the middle of a case." "It's never stopped you before!" exclaims Ziva, and Tony fires back angrily, "Well, it's stopping me now. I'm sorry if you're losing sleep over it, but I can't be responsible for everyone's feelings!" Ziva stares at him in astonishment, and then asks gingerly, "Everyone? For example . . .?" "You. And McGee. And the friends of Bitners in the world!" he says in frustration. Ziva zeroes in on that, and repeats slowly, "Bitner – you mean . . .?" "Yeah, Bitner. The girl that posted online that we were in a committed relationship last year." Ziva thinks back, and comments, "Yes – but if I remember correctly, the only thing you were committed to was a one-night stand!" Tony tells Ziva that he has just found out that Bitner has checked herself into a facility for depression after wrapping her car around a tree. "Nice one, huh?" he adds in derision. Ziva is beginning to understand: "And you think you are responsible?" Tony denies it. "No, I barely knew the girl, I'm just saying . . ." Ziva tells Tony that she was obviously a troubled woman, and Tony agrees. "Well, it's clear now.", and Ziva goes on to say that Tony probably feels badly because it's his job to notice things and help people that are in trouble. Tony admits that he doesn't know why it's gotten under his skin, and comments "Maybe instead of having a midlife crisis, I'm having a midlife crazy." Angrily, Ziva grabs Tony and turns him to face her. "Look, you are not crazy. You are just . . . growing up." Tony studies her face as she continues. "And some lessons are more painful as we grow older, because the stakes are higher. You need to find balance!" Shaking her head, she raises her fists in frustration. "Yes, yes, yes, you need to treat people more respectfully, especially when it comes to matters . . . of the heart. But," she says, calming down, and smoothing the lapel of his jacket, "you need to be – who you are." Tony is taking in every word. He asks, "And who am I?" Ziva tells him, "You are Tony DiNozzo. The class clown. And that is why we love you," she says, her eyes falling for a moment, and then looking up into his face. They gaze at each other for a moment, and both are startled when Gibbs enters the interrogation room. Tony gives Ziva a slight smile, and they both turn to watch the interrogation. Walsh is threatening Gibbs that she will have his badge, and Gibbs tells her that she lied to him, and confronts her with the evidence on Smitty's cell phone. She says she had a good reason and that she withheld her relationship with Smitty to protect her case. "Your relationship?" Gibbs demands incredulously. Walsh goes on to explain that Smitty was one of her office's informants, and things got a little . . . complicated. Gibbs rolls his eyes in disbelief, and Walsh is defensive. "What? He's a good looking guy!" He doesn't dignify her explanation with an answer, and she goes on to explain that if Hayes' defense team found out that she was sleeping with the subject of an investigation, they could argue that the entire chain of evidence had been tainted, and her case would be over. "Maybe," agrees Gibbs, "but maybe if you had said something earlier?" Walsh pleads with him not to tell the judge, but he tells her that he has to. Tony and McGee are standing on the street, shivering. McGee comments that it's unbelievable, but after all this, the killer could still walk. Tony says, mildly, that they'll know after the hearing, and McGee begins a tentative approach: "Hey, look, Tony . . ." Tony sighs and says, "Not you, too, McGee?" and McGee asks if Ziva has already talked to him. Tony says she has, and then points out that the hearing seems to be over. Gibbs and Ziva join them, as Walsh walks away in the background. Ziva reports that the judge threw the case out, and that Hayes walks. McGee observes that they never got a chance to find out who was threatening Neisler, and then asks Gibbs how the brother took it. "He wasn't there," says Gibbs with a slight smile. McGee is surprised, because Gray has been to every hearing. Gibbs says, slowly, that he is surprised too, and the four of them exchange a look. A snowy street, with a Santa sitting by a Salvation Army kettle ringing a bell. A taxi pulls up, and Hayes steps out onto the street, clutching a large manila envelope. As the taxi pulls away, Hayes tosses the envelope into the trash. It has a label: "Federal Inmate. Record of Discharge." As he turns to watch the Santa across the street, Gray walks up behind him, grabs his arm, and forces him into the alley. At gunpoint, he demands, "Do you have anything to say to me?" Hayes tells him, "They know what you did. You hired the guy that tried to stop my trial. They know what you did." Gibbs and Tony enter the alley behind them, guns drawn. Gibbs tells him that they found the wire transfer you used to pay him." Tony adds, "You wanted to scare Jerry out of testifying – we just don't know why. Why don't you put the gun down and explain it to us?" Gray is angry. "No. He has to pay for what he did!" Gibbs tells him that he was about to, the D.A. was asking for the death penalty, but Gray is unimpressed. "Do you know how long the average convicted killer spends on death row before being executed? Thirteen years! If it happens at all!" Gibbs and Tony are joined by Ziva and McGee, guns drawn. "That wasn't going to cut it," he finishes. McGee continues, "So, you got him out on the street, where you were going to get payback." Gray corrects him, "No, I'm going to get payback!" Gibbs tries to tell him that it's not worth throwing his life away, but he asks about his sister's life. "She was the only family I had left – and you took her!" he tells Hayes, beginning to sob. Hayes tells him "I can't give you her life back, ok? But maybe, I can give you yours?" Gray is scathing, and Hayes continues, "Look, I'd supply the bullets myself if I thought it would make you feel better, but it won't." Gray tells Hayes, "You don't know anything about me!" but Hayes tells him that he has spent more time thinking about Gray than he has anything else in his entire life. "And I'm clean now," he continues, "and I can barely remember what I did, but I understand it now. I took your sister's life. I wasted mine. Are you really going to let me ruin yours, as well?" Gibbs tells Gray to put his gun down, but still Gray refuses. "No way – you mean, he just goes free?" Hayes explains that it's just a matter of time before the new D.A. refiles the charges and he's back in court again. "And you know what? I'll just save everyone the trouble and I'll plead guilty. Hell, I'll even sign the confession right now, and maybe we can just pretend that this never happened." McGee tells him that he may have to settle for maybe some of it never happening. Gibbs tells them that he can talk to the D.A. There is a tangible relaxing in the group. Hayes holds out his hands as if to say, "what now?" and Ziva moves to take Gray's gun. Gray tells Gibbs, desperately, "I miss her so much." Gibbs stands silently as the snow falls. He understands. At the office, McGee and Ziva exit the elevator, laughing. McGee has had another dream. "Please tell me I was not in it!" she exclaims, and McGee tells her that she wasn't, but her knives were. Suddenly, they bump into Palmer, who is obviously struggling to keep back tears. McGee asks in alarm, "Palmer?! What is it?!" and Palmer gestures over his shoulder and mutter "Jerry," as he dashes off, head bent. Neisler is following Gibbs up the stairs, and McGee observes, "Ah. Well, I told Palmer not to talk to him." Tony is at his desk, straightening files. Ziva asks why Neisler is still there, and Tony tells her that he wanted to thank Gibbs personally. Tony tells him that the D.A. will drop the witness intimidation charge against Gray in return for a guilty plea to the weapons charge, and he won't do any time. McGee and Ziva exchange a glance, and McGee mutters, "I think you're going to have to have another talk with him." "Um-hmm," agrees Ziva, giving Tony a narrow look. She turns and sits down at her desk, and begins to type. Tony sits silently with his hands crossed on his desk, watching her. As soon as she touches the keyboard, the keyboard explodes. McGee's workspace also starts exploding, with confetti, colored lights, and sound effects. Ziva is jumping in alarm, and on the briefing screen, amidst a snowfall of confetti, is a large "Happy Holidays" with the NCIS seal set between a snow covered Christmas tree and a snowman. The rest of the office is looking on in amazement. McGee and Ziva both turn to stare accusingly at Tony, and Tony half-turns with a hint of the old Tony smile to give a thumbs-up to Neisler, watching gleefully from the stairs. Ziva exclaims, "YOU!" and Tony responds, with a frown, "Too much?" Happy Holidays to the Men and Women Who Protect And Serve Our Country at Home and Abroad