Original subtitles

Previously on The Practice.

Can you tell me the crime your son's been convicted of? He's on death row in

Pennsylvania. He used to be executed in five weeks. He's convicted of raping and

killing his girlfriend, Alyssa Kearns, then killing her mother.

Any DNA?

They didn't do full DNA analysis back then.

This is Eleanor Frutt. Hello? She says you can do something. Can you really?

Would you support me in my efforts to try to determine where the rape kit

have gone? Of course. But, Ms. Frutt, Mr.

Donovan was rightly convicted of a double homicide. He did not commit that

crime! All right.

Stephen?

Alyssa? Yes, I said Alyssa.

32665. Yeah, that's the file number.

We've got it. New evidence is one thing, but the re -evaluation of old evidence

is quite another. I am only asking that you authorize a DNA test.

The petition is denied.

She just doesn't know when to quit.

Well, I guess she and I have something in common, then.

Because I'm not quitting.

Okay.

Pennsylvania Supreme Court turned us down last night, which means we have to

to federal circuit court under what's called a successor petition.

Just to get the DNA test?

It gets worse.

Since his last lawyer previously filed a habeas petition.

Under federal law, we don't get another chance unless we can pretty much prove

that he's innocent and that his constitutional rights were violated.

wait, wait. 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

Right. How the hell can that be? I don't know.

But Stuart Donovan is set to be put to death in 17 days, so that means between

now and then, we have to somehow prove that he's innocent.

Excuse me.

Are you Mr. Donald?

Yes. My name is Arthur Turner, and this is my wife, Gertrude. Hello.

I'm afraid we're in a bit of trouble.

What kind of trouble?

It's my daughter.

We were recently married, and my stepdaughter's trying to get the

annulled. There's a hearing scheduled for today. Mr. Turner, this is Lindsay

Dole. She heads up our domestic relations department. Lindsay, this is

Turner, his wife, Gertrude. Hello.

Bobby, on that Lujac matter... I'll handle the Lujac deposition. Help the

Turners.

If they're able to get this annulled, which they are trying to do... Rebecca,

actually, sir, we have an annulment specialist.

Could you help the Turners? Their marriage is being threatened with

The hearing's today.

I have a Lujac conflict?

I'm actually helping Bobby on the Lujac matter.

Thank you. Ms. Washington will help you.

This Lujac sounds like a really big client.

I can't possibly thank you enough for coming.

Come on, I'll show you the room. We can get started.

Oh, my God.

Oh, sorry.

I don't even notice those anymore.

After 12 years. I have a meeting with the informant at 1.

Eugene's going to see the eyewitness.

Good luck trying to get the time of day with him.

What about the father? Jimmy is going to try.

I can't tell you how grateful I am.

We can't get our hopes up, Mary. I keep trying to tell you that.

Let's just get to work.

An annulment is kind of a drastic measure. I just thought... Where's my

now? She's with her husband. Her husband.

He's nothing but a... No, I'll say my thing.

You know better than he is.

Taking advantage of... I am not taking advantage of anyone, ma 'am.

And I will thank you not to draw conclusions about who and what I am.

lawyer. That's all I need to know. Claire, that's enough.

According to Mr. Turner, he loves your mother very much. She lacked the

to enter into a contract.

Marital or... How do you figure?

Duress? What are the grounds?

She has Alzheimer's, Miss Washington.

You didn't know this?

Your client married a woman with Alzheimer's.

So?

It's illegal for somebody with Alzheimer's to get married?

Well, it does raise some capacity issues.

So what's going to happen?

Well, there's going to be a hearing.

Mr. Turner, you'll have to take the stand. I think they plan on calling a

doctor. And then, Mrs. Turner, you'll have to testify.

No. I won't let her be put through that.

She has to demonstrate to the court that she was competent to get married.

If Claire were concerned about her mother's welfare, she wouldn't have

in that nursing home.

Now, she's not going to be put through testimony.

I'm afraid that you... Ah, I said no.

Mr. Turner, you hired me to help you.

If you plan to keep this marriage from being annulled, your wife will have to

testify.

I can do it, sweetheart.

All I have to do is show them that I'm confident.

Confident?

Yes.

We should get in.

Mr. Bresler, I appreciate you taking the time.

Yeah, like I said, I only got a couple of minutes.

Your house is right across from the current.

Was? I got divorced and moved about six years ago.

Well, in any case, going to that night, you can be sure it was Stuart Donovan

you saw going to that house.

Positive. Can you tell me how you happened to see him?

I was watching Johnny Carson when I see his Camaro pull up.

It was red with big tires and mag wheels.

It always makes a lot of noise, day and night.

So you actually saw Stewart get out of the car?

Yeah. Well, he said he left around 9 o 'clock.

Impossible. It was between 11 .30 and 12.

I told you I was watching Carson.

Well, did you hear any screams come from the house?

No.

You know he's going to be executed in two weeks?

Yes.

It's been on the news.

Well, given that, is there any chance it wasn't Stuart Donovan you saw that

night?

Mr. Young, I met the kid a few times back then.

He seemed like a real nice boy.

I'm not saying he did what they said he did, but he did go in there that night.

There's no question about that.

Mr. Turner, how long have you known your wife?

Over 35 years.

I knew her late husband. They both knew my first wife.

I guess the question that people are asking... She has Alzheimer's. I fell in

love with her long before she was stricken with that.

It certainly doesn't make me stop loving her.

Okay, but it might stop you from being able to care for her.

If that day comes, I might have to...

Consider putting her in a home.

But that day is not now, Claire.

I'll tell you that. I don't know what you're talking about, Arthur. I would

never... Sit.

Mr. Turner, please do not address her.

She's upset because I took her out the home.

Yes, she is.

She thinks you married her to gain guardianship so you could remove her

home. I married her because I love her.

And as a person who loves her, I wanted her out of that place. Damn right.

You snuck a minister into the nursing home where he performed the wedding

service? Yes, I did.

And you have control of your wife's estate now, don't you, Mr. Turner? If

wanted her mother to be happy, she would want her to be with me.

She wants her mother properly cared for.

And I'm doing that.

She has Alzheimer's. You're a 76 -year -old man with no training. I can do

better than they can. That isn't true.

You're ill -equipped to provide care. I can take care of her.

You.

Stop it.

Mrs. Turner.

Who is he?

What's his name?

She is not a witness here.

No, she isn't, but the court certainly would like to know if she can answer the

question.

Mrs. Turner, who is this man?

Do you know him?

Of course I do.

Who is he?

His name is Arthur Turner.

He is my lawfully wedded husband.

And I would appreciate it if all of you would leave the two of us

alone.

I've been having these dreams lately.

What sort of dreams?

That I'm asleep and I can't wake up.

And I start thinking they've already done it.

I'm dead and this is what it feels like.

Yeah.

I have a meeting with the informant in 45 minutes.

I don't really expect him to help me unless he figures there's something we

give him.

Okay. Can you make him stop with the priest?

I'm sorry? This priest keeps coming to see me.

He says it's important that I confess to God before I go.

I'll deal with that.

He says it's my only chance for absolution. I will take care of the

Stuart, don't talk to anybody.

Not even clergy.

Most of the time she's lucid. But she does suffer bouts of both confusion and

delusion. And doctor, does her condition stand to improve?

No. It's a progressive disease. Her cognitive abilities will eventually

Probably completely.

What about care?

I think she's already at a point where she needs full -time supervision by

professional staff.

To entrust her to the care of a 76 -year -old man with no training, that's a

threat to her safety.

Does he seem to have deteriorated since he left the home?

It's only been a month.

I'll ask the question again.

Does he seem to have deteriorated since he left the home?

No. When you talk about the welfare or well -being of a patient, whether or not

she's happy or depressed, is that a factor?

Of course. And if Mrs. Turner were happier living with Mr. Turner, that is

something to consider medically as well, isn't it? It's not the only thing to

consider, and given her age and condition... My question is, isn't it

she would be better off living with him, especially when he loves her?

The likelihood of him being able to take care of her is so remote. But if you

were satisfied that he could take care of her, she's better off living with him

than in a nursing home, isn't she?

It's a very big if.

But probably yes.

Thank you, Doctor.

Mr. Kearns?

Yes? My name is James Berluti, sir.

As I'm sure you know, Stuart Donovan is soon to be executed for the murder of

your wife and daughter.

And? At the risk of you slamming the door in my face, I've been hired by

Stuart's mother.

If I could, and I know how offensive this must seem, I'd like to ask you just

a couple of questions.

I was working the graveyard shift, but I remember before I left, my wife trying

to calm Elisa down.

Do you know why?

Elisa had broken up with Stuart a few days before.

He was calling and harassing her.

She's pretty upset.

I didn't take it seriously enough.

And when I came home, I saw what he had done to her.

This may be the part that sounds offensive, but can you think of anybody

who may have wanted to harm your daughter or your wife?

Mr. Beludi, I understand.

As a parent, Mary Donovan will do anything to prevent her son's execution.

But you tell her from me, and as a parent, she should understand that I

feel... Any peace until the person who raped and murdered my daughter is put to

death.

And you can tell her I'll see her soon because I plan to be there.

I plan to be there for his final breath, just like he was for my wife and

daughters.

I understand you want closure, sir.

But if he didn't do it, when they execute him, that's it.

They got the real killer, Mr. Belluti.

I don't want her testifying.

Mr. Turner. It's not hard to get her confused, Rebecca.

You're just going to... The judge has made it clear he needs to hear from her.

I'll try my best to protect her, but she has to testify.

Why don't you two stop your fucking?

He's not going to hurt me with everybody watching.

Frank has to be a coward when you come right down to it.

Who's Frank?

Her first husband.

Frank's not going to be there, Gertie.

Well, then why are we all so worried?

Claire's going to be in there with her lawyer saying that you and I shouldn't

married.

Married?

Well, I suspect Frank will have something to say about it.

Mouse did.

Do you remember that?

Oh, yes.

Yes, as well.

I represent Stuart Donovan, the man who's about to be executed on your

testimony. Don't be laying that on me.

Other folks testified. But your testimony was especially powerful. You

he confessed to you.

He did.

Really?

Why would he do that?

Had an attack of conscience, I guess.

Seems to happen a lot around you, doesn't it?

Back in 1988...

You were arrested for robbing a liquor store, and then you testified that

Donovan confessed, and you got a reduced sentence.

Then arrested again in 91 and 93 on other charges.

Both times you became a snitch on jailhouse confessions, and both times

a reduced sentence.

People open up to me.

Stuart Donovan is about to be executed.

Do you really want that on your conscience?

You are a burglar and an armed robber, but you have never killed anyone.

Don't start with her, do her, Donovan.

What do you want from me?

A statement saying that you lied, that he never confessed.

The statute of limitations has run on perjury.

You won't have to worry about that.

If you get me a bring down to county.

Karen Frumhold facility.

I don't know how I can do that.

Don't we got nothing to talk about?

Earl, a man is about to die.

No bring down.

No statement.

The question we have, Mrs. Turner, is whether you fully appreciated what you

were doing when you took this man for your husband.

The question you have is whether I'm not.

I can fully appreciate that.

I need some straight answers, ma 'am. Why do I owe anybody anything?

I didn't see anybody here coming to visit me in that hole.

All your people.

Care so much?

Where were you?

Where were you, Claire?

Please don't address your daughter, ma 'am. Arthur is the only one who wants to

take care of me. He's the only one who loves me.

Frank didn't.

Who is Frank?

He's dead.

That's who he is.

Frank was her first husband.

Bang on the head, he's dead.

Arthur's idea to save...

It fell.

Excuse me?

You wouldn't stop him.

Man beat on me.

Gertie.

They all had you dead.

Oh, my God.

Your Honor, could we take a short recess?

No, actually. Mrs. Turner.

Frank, your first husband.

How did he die?

He fell.

He fell? A second ago, you were suggesting that Arthur hit him on the

That's what happened.

He fell after Arthur hit him on the head.

Arthur is the only one who loves me.

And he killed your first husband.

You can't force me.

to testify against him.

He's my husband now.

I don't have to say a word.

Right, honey?

Well,

I hope you're happy. What?

That double Lou Jack, that annulment thing?

Turns out Sweet Arthur's a murderer.

Excuse me?

Well, it seems Arthur whacked her first husband with a two -by -four and married

her maybe so she could avail herself of spousal privilege and wouldn't have to

testify. What?

It doesn't all make sense. The guy was killed 15 years ago. Why get married

Anyway, the judge annulled the marriage and referred the matter to Helen Gamble.

You're helping me on this, Bobby. You loo -jacked me into a murder.

I loo -jacked Lindsay.

Fine, then you can both help me.

It was a terrible thing.

Did you see Stuart Donovan that night?

No. I was in Florida visiting my folks that month.

A month? You were away a whole month.

Mr. Young, my husband was a drunk back then.

There's no mystery here.

The reason we got divorced is because I got tired of seeing him passed out every

night at 9 o 'clock.

He slept in that chair there for six straight years.

9 o 'clock?

He said he saw Stuart between 11 .30 and 12.

Yeah, well... Well what?

I wasn't here, Mr. Young. I was in Florida.

Mrs. Breslau, I'm not going after your ex -husband.

I got a guy looking at death in two weeks for a crime he didn't commit.

He confessed.

No, he didn't.

Is it possible your ex -husband was lying about that 11 .30 business?

I don't think he would lie.

But there was a but in your tone.

He could have believed it was 11 .30 when it may have been 9.

By that time, he would have been 12 sheets to the wind.

Why didn't you tell me to the police?

I did.

Get this.

Turns out Johnny Carson had a prime time special on that night.

This guy might have thought it was 11 .30 when he saw Johnny Carson on, but it

was really only 9.

So we got a bogus eyewitness on top of a bogus informant. So what happens?

They have to order a new trial now, don't they? No way.

How can they not?

Mary, I haven't solved the confession thing yet. He only recants if I get him

transferred to county jail, and I haven't a clue as to how to pull that

All we have to do is get him into court.

What do you mean? The current Frumhold facility is used as a lockup for the

Common Pleas Court.

If he could get into court on anything, that's where they'll hold him.

It was referred to Helen.

And she wants to talk to them.

Not a chance. She implied she might file charges if they don't talk. Letter. It

was 15 years ago. She's going to make murder on the testimony of a witness

Alzheimer's for a 15 -year -old crime?

Good luck.

Well, even so, if we can spare them from being put through a trial.

I can't get prosecuted. Don't be so sure.

Helen, thanks for calling first.

You're not talking to them.

Bobby, we already have her recorded testimony.

All right. You'll be sure to get her guilty with that.

Evidently, the dead husband used to abuse her. And that means Arthur killed

Rebecca, she said he did.

Because she has Alzheimer's. And because it's probably true.

Let me just talk to them.

No way.

Then he'll probably get charged.

Well, we're not letting you speak to them.

Please don't make me prosecute a 76 -year -old man.

You're not talking to them.

He's in the conference room.

You've got to be kidding. If I can't ask her questions here, I will just do it

at a PC hearing.

Bobby? No.

Okay, let's go.

What's going on?

Don't say anything, Arthur. They're arresting you. We'll take care of it.

Arresting me?

I'm going to go to the precinct with you. Lindsay and Bobby, they'll look

Gertrude. Where are they taking him?

I'm all right, Gertie. Don't you worry.

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.

What do you mean, new lawyer?

A private defense attorney.

What are you talking about?

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 going to want to know what's wrong with your PD.

And to get the answer, they're going to need to hear from you. And for that,

you've got to be there.

You'll be transported to the current Frumholtz facility to be available for

evidentiary presentation.

And then after the hearing, you'll be brought back here.

This only happens if you give me the statement.

I will.

Well, I need it now.

Well, you don't get it now.

Not till after I go to Karen. This could take some time. Stuart Donovan... Well,

you know what? I suggest you speed it up.

Because I ain't giving you the statement until after I go to current.

That's bad.

The soonest we can get Earl to current is ten days.

If we wait that long and we strike out, that leaves us with just four days. We

can't risk that.

Let's still go in tomorrow.

With what?

Well, we've got the ex -wife's affidavit on the witnesses' drinking.

We've got possible prosecutorial misconduct there as well.

You can also represent as an officer of the court that Taylor is prepared to

recant on the confession. I mean, that's got to be enough to at least get an

order for a DNA test.

I would like to go in with more than that.

Look, you feel guaranteed you'll get that statement from Taylor?

Guaranteed from that guy? Hardly. Then we can't waste ten days banking on him.

Let's go in tomorrow with what we've got.

Okay, let's do it.

I don't know about a conviction, but beating probable cause, that's a very

threshold. She just gets confused about things.

Well, what was she confused about? She said you hit him on the head.

Did that come out of nowhere?

Yes.

The man fell.

They'll probably call her to the stand.

No. This is a criminal proceeding.

I don't want to put her in the witness chair again.

We need to protect her.

Are you looking to protect her or yourself?

Do you think I'm a murderer now, Ms. Washington?

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 a recorded

testimony from the annulment proceeding.

They could probably satisfy probable cause with that.

But they couldn't convict on it, right?

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. I don't want her testifying.

I don't think you have a choice.

May it please the court, my name is Eleanor 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 for which he has been

convicted? Which conviction has him scheduled for death by lethal injection

14 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. Before we get to that, you must also show that your

constitutional rights were violated.

I believe we can make that showing, Your Honor.

One of the key eyewitnesses in the case suffered from a very serious drinking

problem. That's exculpatory evidence the state failed to turn over to the

defense. This drinking problem was relevant?

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... He was drunk on the night in question?

According to his ex -wife, whose affidavit is attached to our memorandum

Exhibit D, she said her husband was habitually drunk every night and... And

verified that he was intoxicated on this night.

She wasn't there, but she's basing... Thank you.

You can verify that the prosecution knew of his drinking problem?

Yes. Mrs.

Bresler told the police that her husband was typically passed out by 9 o 'clock

every night and that he was quite possibly confused as to the time he said

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. Wasn't

the defense free to discover all this?

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. All right, counsel.

But we also have a confession in this case. 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

Exhibit F.

That means we have a false confession.

Backed up by very questionable eyewitness testimony. And these two

evidence represent the prosecution's case in its entirety.

A lie from a jailhouse snitch and the observations of an intoxicated

That's it.

Plus a blood match.

Well, do we? That's why we're here, to seek confirmation of the blood match.

There was no DNA technology 12 years ago, but we now have the ability to run

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 are not petitioning that you set him free. We are not asking for a new trial.

Just one little test.

You said yesterday that Arthur had hit your late husband over the head.

At least you implied that.

Is that what happened?

I take the fifth commandment.

You can't take a commandment in here, ma 'am. My client has asserted her Fifth

Amendment rights. She's not being charged with anything.

Doesn't matter. She's allowed to assert Fifth Amendment rights when there's the

prospect of criminal charges.

The Commonwealth has no intention of... She was there at the time of the

accident, possible accessory charges. Your Honor, I'd ask the court to grant

witness immunity.

She doesn't want immunity.

Your Honor, this is hard enough.

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 Miss Gamble's questions.

Don't do it, Gertie.

Mr. Turner?

He's my husband.

I don't have to testify.

No, your marriage was annulled.

All right.

Counsel and the witness in chambers, please.

Mrs. Stevens, you too.

Whether or not a witness had a drinking problem is a collateral issue, certainly

not one which would... Why didn't you tell the defense about it? I'm not sure

didn't, but assuming we didn't, that goes to impeachment only. It wasn't

evidence. Moreover, knowing of Mr. Bressler's problem, a reasonable jury

could have chosen to believe him. What about the confession? The state stands

the confession.

Defense is now trying to bribe the informant into recanting the statement

gave. I object to that. 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

him recanting the statement concerning Mr. Donovan's confession.

If you please.

Your new private attorney will go in asking the state to pay your legal fees.

The court's going to want to know what's wrong with your PD.

And to get the answer, they're going to need to hear from you. And for that,

you've got to be there.

You'll be transported to the current Frumhold facility to be available for

evidentiary presentation.

And then after the hearing, you'll be brought back here.

May I respond to that, Your Honor?

I would hope you would.

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

was not suborning perjury. Are you suggesting I was? All I am suggesting is

Mr. Taylor is a liar. And better that he lie for you?

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? All right.

I would remind the court, we are not asking you to stay in 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

how can any system that purports to offer even an appearance of being about

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 than executing a man.

I know you love Arthur.

But, ma 'am, I'm sure you loved your late husband, Frank, too, didn't you?

Oh, God, no.

He hit me, Frank did.

Glad he died, truth be told.

Okay.

Did Arthur kill him?

Can you take us back to that day?

I don't want to go back to that day.

We need you to.

Frank was at me like every day, yelling, digging that.

I told him before, you take your hand to me again.

And he did, right across my face, like so many times before.

And I...

There.

You know what?

The board.

Laying on the counter.

I just picked it up.

You picked it up?

Yes, I did.

I told him, you take your hand to me.

I didn't mean to kill him.

Just brought him down.

You hit your husband.

Arthur came in and said we should say he fell.

Mom.

I'm sorry, Claire.

I can't. killed your daddy.

What?

Why did you say Arthur did it?

Sometimes I think he did.

She says she killed him.

Did see

I

Don't understand

She started talking about

I Had to get her out of that home before she got herself

into trouble

That's why you married her, to get her out before she said too much?

Dad and I love her.

What are they going to do to her?

Nothing.

She's got immunity, remember?

So what happens?

You're free to go. You can take her home if you want.

Where is she?

Ready?

He got me to tell.

I'm going to take you home, sweetheart.

You're not mad at me?

Hey, I love you.

Be seated.

It is the opinion of this court that Stuart Donovan's constitutional rights

violated by the district attorney's failure to provide defense counsel with

information concerning Mr. Bressler's drinking problems.

Certainly, armed with this information, a jury might have been more inclined to

disbelieve this material witness.

As for the informants...

statement concerning Mr. Donovan's confession, that too is certainly in

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 are not

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.