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 was 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?

We're trying to get the DNA test in order to prove that he's innocent, but

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

wife? They got the real killer, Mr. Belluti. 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 going to the house. It was between 11 .30 and 12.

My husband was a drunk back then.

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

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.

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.

an appointment, there's really no... 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.

Miss Frutt, the governor did consider your request, and as far as... 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 this particular... I assure you, he did.

I'd like to hear it from him. Ms. Mathers, I am asking for 30 seconds of

time, and after that, you can have me escorted out.

How would this administration run, Ms. Frudge, if we were to give 30 seconds to

every attorney who marched in here looking to stay in 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.

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

punishment, given the likelihood that... 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.

Wait a second.

We're trying to save an innocent man from being put to death, and you're

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

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.

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

him. Do I have to?

No.

But you might be our best shot.

The clothes.

Excuse me?

Alyssa Kearns was raped and killed while wearing a nightshirt.

So?

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

All the semen samples came from the rape kit swap.

So what?

Well, the rape kit was introduced at trial. That's why they're saying it's

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 of 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.

What are you?

If you could help me, sir, Stuart Donovan is scheduled for execution the

after tomorrow. Show me a little something before we get started.

I am not going to flash you.

I'm told that you know how Earl Taylor got the details on Stuart Donovan's

Show me one little titty. Mr. Bullock, I know you're asking... One little titty

will speak volumes. You give, I give, little miss. That's the way justice

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. Paul. Wait, no, no, wait, wait.

and 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?

Fifteen minutes. I seen Earl do it in less.

All right, little lady.

It's showtime.

That's it?

Stomach? Bye, Joel.

What? I give you everything and you give me stomach?

Oh, man.

You want to what?

A court order allowing us to exhume the body of Alyssa Kearns. Your Honor denied

our request to have the rape kit tested because it was old evidence.

The nightshirt and the casket is new evidence.

How is it new evidence?

It was no secret Alyssa 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

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 v.

Kivlin. The Court of Appeals denied defendant's motion for exhumation

the existence of the evidence sought was speculative and uncertain.

Kivlin involved looking for trace gunpowder residue. That's nowhere near

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

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 a million

dollars. 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 night shirt may very well be new evidence.

But there's no offer before me that it even contains any DNA evidence, much

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. Kern's 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?

I never believed it would happen.

Even when I got to Lenten, I figured, you know, it's a mistake. I'll get

out, 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 I 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 it.

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 when I'm coming to ask him.

And Eugene, I guess you should check the execution equipment. Who knows?

I'm fine.

I'm fine.

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

Terrible.

According to the mortician, the nightshirt was folded and put in the

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. 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. Belluti?

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.

All set?

Ready.

Commence with the execution.

On the count of three.

One, two, three.

Done.

Okay, let's start from the top.

This time we'll do it as if the condemned was struggling.

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 law clerks just stamp denied, and then they go out and play basketball.

Hello?

One second, please.

It's the doctor from the lab.

Dr. Dunham?

Eleanor Frott.

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.

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 Databank? He did. There's been no ID.

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 have been there with him that night.

What? Stuart Donovan was seen going into that house.

At 9 o 'clock? No, the witness said between 11 .30 and 12. The witness was a

drunk who saw Johnny Carson on TV and thought it was between 11 .30 and 12.

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

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, please.

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.

Lucy, let's go.

We can't go to federal. Jimmy, see if there's a state court law that we can...

Why, Judge Wood? Would you shut up?

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

Jimmy, get a declaration from Dr. Dunham. Plus the test results.

Done. And keep calling the Supreme Court.

Arrest them.

You want me to argue?

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

could count for something.

Have we heard from the Supreme Court?

They don't seem to be returning our calls this week.

Where's Eleanor?

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?

If you got people to say goodbye to here, you'll have to do that in the

Whose semen was it? We don't know.

I don't think it proves anything, Michael. There could have been co

-conspirators. 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're very good, Michael.

I'll argue.

Really? This is the killer, right?

I know it is.

I'll argue. We're not losing him on the day of execution.

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.

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.

Eleanor, 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

what's not.

I can tell you one thing.

I'm never going to do another death penalty case.

Be seated.

All right, Miss Frutt, here we are again.

The floor is yours.

May I please the court?

We now have conclusive DNA evidence establishing it was somebody else, not

Stuart Donovan, who raped Alyssa Kearns on that night. You have the reports in

front of 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 o 'clock every night.

Mr. Bressler claims it was between 11 .30 and 12 when he saw my client enter

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

during prime time, the night of the murders, 9 p .m. to 11 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

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?

We will not deny to this court we were shocked by this DNA evidence.

We then tested the rape kit and learned just ten seconds ago it, too, did not

match Stuart Donovan.

My first reaction yesterday to the DNA discovery was that Stuart Donovan

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

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

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

love to her. We have no timeline on that. Could have been earlier.

But that 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

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 Alyssa Kearns just the day before.

He refused to accept the end of the relationship.

There's 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

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 co -conspirator. 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

The time to impeach it would have been a 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, Miss Fracht, there is a system. A system of evidence and appeals and...

The system doesn't

always work, Your Honor.

In the last ten years alone, over 44 people have been released from death row

for crime 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

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,

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. Bratt's frustration, her emotion.

I'd like the court to consider it from our side and from the victim's families.

You find the person who commits the murder, you put that person on trial,

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.

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

Twelve 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,

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 argument that before we put a man to

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 and 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

third look at the testimony, if we did that for one, we'd have to do it for

And if we did it for all, surely the court dockets would clog beyond repair

there would be no justice for anybody.

Miss Frutz, 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 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

this court.

Adjourned.

How about that?

Thank you.

Thank you.

Thank you.