The Practice

Season 7 Episode 3

Of Thee I Sing

Aired Wednesday 10:00 PM Oct 13, 2002 on ABC

Episode Recap

Bobby waits to visit Lindsay in prison. He tells her that although he initially was against it, they should try to plea out her case to voluntary manslaughter. Too much is stacked against them; her threat to kill Lawrence hours before she actually did so, Lawrence being unarmed and stationary, her testimony in her all seems to be too much to risk at trial. Bobby and Eugene plan to bring it to Kenneth Walsh the next day, but it would probably be at least three years. Lindsay tearfully agrees.

Eugene and Bobby go to Kenneth's office. He makes them wait for 50 minutes before coming in and rejecting their offer. When they ask why he says the only reason to accept a plea would be if he thought he would have a problem winning at trial. He didn't think that would be a problem. Eugene, seeing that Kenneth is only interested in tormenting them, says if he's feeling cocky he'd better check his track record against their firm. Kenneth then starts to taunt Bobby, asking if he plans to take the stand again and how well he did the last time.

The firm meets to decide how to proceed at the new trial. Bobby is having the lawyers look into possibilities that look like long shots. When Ellenor tells him as much he tells her she's "thinking like a loser". He apologizes but it's obvious his comment stung Ellenor.

Jamie is given her first case...lewd and lascivious conduct for a man that flashed a group of teenagers. Her client, Terry Pender, claims he has a bladder infection and couldn't make it to a bathroom. He was just peeing, not flashing the girls, although according to him "they totally wanted it". Jamie talks with opposing counsel, they offer 3 months. Jamie is looking for a suspended sentence because Jerry says he's innocent, but since it's his third offense an agreement can't be reached and a trial date is set.

Helen seeks out Kenneth, who's at a bar having a drink. She tries to get him to look objectively at Lindsay's case, but he's unmoved. He tells her that their appeal to the supreme justice was nothing more than an attack on him and they're not interested in justice, just in "beating the rap" for their client by any means possible. He feels that he's had to lower himself to their level in order to make sure criminals go to jail and he hates them for it. Lindsey killed Lawrence O'Malley simply because she felt she could get away with it, but this time they won't. When Helen asks him how he got this way, Kenneth points out that last week she lied to get a confession out of a suspect...if she's having any trouble looking at him it's because she sees herself.

Back at the office Lucy receives an anonymous fax of a preliminary report from the analyst in Lindsay's case. It states that Lawrence O'Malley was most likely moving forward at the time of impact, not standing still like the defense expert testified. Since this report wasn't given to the defense it could be seen as withholding exculpatory evidence. Eugene visits Michael Hallbrenner, the analyst that made the initial finding, but he's very evasive and won't answer any questions.

Citing the document that was faxed, Ellenor moves for a dismissal of the verdict with prejudice. Kenneth claims the document was work product and not the final finding of the lab. Ellenor argues that at a minimum they should have been made aware of the initial finding and asks that the analyst that made it be questioned in a hearing since he won't voluntarily offer any information. The judge agrees.

Kenneth goes to Helen's office and accuses her of sending the fax and wants to know why she went behind his back. Helen tells him she didn't want to embarrass him by giving the perception that one of his underlings was betraying him. Also, the defense was entitled to see the document, and following the rules is where she finds her integrity.

Contrary to what he told Jamie, when Terry gets on the stand he testifies that he saw the teenagers smoking and he couldn't stand to see them killing themselves. So he wrote "smoking causes death" on his penis and exposed it to the girls because he felt since sex sells, this was the best way to get the message across. This new story throws Jamie and she sits down. Opposing counsel points out that Terry has done this twice before, he maintains that both instances were also for public awareness; the first time to protest world hunger, the second during the election in support of Al Gore.

When Hallbrenner is on the stand, he says that he did initially find that Lawrence O'Malley was most likely moving forward when he was shot, but later changed his opinion. Eugene asks if anyone asked him to change his findings, he responds that there was a difference of opinion and they all argued their point of view. Eugene asks if Kenneth Walsh was one of these people, and Hallbrenner admits he was. Eugene gets him to confess that Kenneth asked him to alter his findings, and when he wouldn't Hallbrenner's supervisor was put on the case and his findings were used instead.

When Kenneth cross examines him, Hallbrenner testifies that he was in no way forced to change his findings and that three other analysts more experienced than him found that Lawrence O'Malley was stationary when he was shot. In his summation, Kenneth maintains that the document wasn't evidence; it was an initial theory that was later disproved and therefore didn't have to be turned over to the defense. Moreover, the case never turned on whether or not the victim was moving forward; this was a desperate move by a murderer who is out of appeals.

Ellenor counters that if this report was a non-issue then Kenneth wouldn't have brought it up so many times during the trial. He drove it home as a focal point of the case and is now blatantly lying about it. Ellenor accuses him of gross prosecutorial misconduct and moves that the indictment be dismissed with prejudice or strike the record of the first trial, saying their argument would have changed if this report was made available. Kenneth objects and tempers flare on both sides. The judge cuts them off saying the ball was in his court now, and he takes the motion under advisement.

Jamie asks Eugene for his advice in her case. He tells her she has to go with what her client tells her. She feels ridiculous but prepares her closing statement. At trial she talks to the jury about the right to free speech and is doing a great job until her client pulls down his pants to reveal his penis, which has "save the rainforest" written on it. The judge calls a mistrial and sets the next trial date for the following July, for which Terry will be held without bail, meaning he'll be in jail for 10 months. Jamie convinces the judge and D.A. to plead out to six months.

When the judge in Lindsay's case comes back, he comments that over the years the bar has been lowered as far as attorney conduct in criminal cases, but that doesn't mean that the D.A.'s office should participate in that kind of behavior. And since the supreme judicial court found that Kenneth violated Lindsay's 5th and 6th Amendment rights and has now withheld exculpatory evidence, he grants defense's motion and dismisses the indictment with prejudice. Lindsay is now free.

Kenneth, feeling he's once again been personally attacked by Bobby's firm, Helen and now the judge, goes to talk to the press. He gives a disjointed and mostly incoherent rant about injustice, peppered with Bible verses and lyrics to My Country Tis of Thee. Helen stands silently nearby, clearly worried about Kenneth's state of mind.