Original subtitles

Previously on The Practice.

My client was in shock at the time of this interrogation. He had just found

wife dead less than an hour before this. I'll allow the videotape for

impeachment purposes only.

He killed my sister. Don't tell me now that he's going to walk. Mr. Barrett, we

had hoped to be able to introduce the videotape interrogation. And you can't?

Not unless we get him on the stand.

This will only happen if his lawyers think he's losing. Which means when we

you, did your sister seem suicidal?

A response of, I didn't think so, isn't going to do it. She was murdered. If you

know it, she did not commit suicide. You absolutely know it. You should just say

anything else, sir.

She said that if she turned up missing, that I should call the police, because

Scott probably did something to her.

Objection! I know what you said to him, how you coached him to be... Hey, Helen!

The man committed perjury, Richard. We both know it. I want to testify. I can't

let you. Poppy!

The defense rests, Your Honor. We find the defendant, Scott Wallace, guilty.

This thing was built to bring children joy, and it's toxic.

The number Eleanor and I think is reasonable is $160 per child. Nothing is

enough for what they did to our kids.

$20 ,000.

$20 ,000? A piece.

And we're only offering it to avoid the publicity that this hearing might

generate. We have children with severe learning disabilities.

Even if that thing is toxic, the government didn't manufacture it. I

we'll lose a summary judgment.

To say that the EPA knew of a leeching problem and failed either to correct it

or to warn about it makes them negligent is in fact a question a jury should be

deciding, not a judge.

What happened? We're still alive.

Are your experts ready? They're all set.

Dr. Tillotson flew in this morning. He's going to be great. He's very dignified

and very persuasive.

Who have they got?

How about everybody?

They can't afford to lose this case. The precedent would be a disaster.

She's nervous.

I am not.

Okay, look. This is not like tobacco, where the jury's going to go in thinking

that the defendant is evil.

There's no predisposition weighing in your favor here.

In fact, in this case, the jury's fears will work against you. How do you figure

that? People don't want to believe that playground equipment all over is

poisoning their children.

They don't want to believe that the government can know about it and just

the other way because of politics.

Well, that's exactly... People don't want to believe it, Eleanor.

Okay, Bobby, we get it.

How is your science?

It's circumstantial, but credible.

Don't focus on proof so much. It's hammering the fact that the EPA didn't

this stuff enough.

All right, Bobby, we have done this before.

We've been preparing this case for eight months now, and we know what we have to

do.

Anything else?

Yeah.

When?

You ready?

Yeah, as ready as I'm gonna get.

Are you going in today?

Yeah, just moving slow.

You okay, Helen?

Yeah.

Don't I look fabulous?

It's just you've been acting a little blue for about a week now.

Really? Must be a midlife thing.

Promised myself if I wasn't rich and famous by 30, I'd...

I'd least be sleeping with someone who was.

I'm working as fast as I can, Bobby. Get Jimmy to help you. He's third chairing

the Jamison trial. Look, when we sit on our hands, Scott Wallace is sitting in

jail. Nobody is sitting on their hands, especially me.

I'm off to see him now.

Bobby, you are going to let him in on everything he has to appeal.

The injuries are neurological, most likely caused by a toxin. Did you form

opinion, Doctor, as to what caused these neurological injuries?

We couldn't make any findings to a medical certainty, but it's my belief

these children were exposed to arsenic poisoning, and it was determined the

likely culprit was a play gym in the backyard.

Okay, and can you tell us why you fault the play gym?

The wood was treated with chromated copper arsenicals, commonly known as

It's a fungicide. It's an insecticide.

It's also a carcinogen.

Over time, it can break down.

The kids touch it. They put their hands in their mouths and they ingest it. The

neuropathy these children suffered is consistent with the injuries typically

caused by exposure to CCA.

You can't prove that this play equipment caused these problems, can you, doctor?

Can I prove it?

No. In fact, Doctor, you can't even prove to a medical certainty that

to CCA even causes neurological damage of any kind, can you? There is certainly

enough anecdotal evidence to strongly suggest that it does.

Can you prove it, Doctor?

One of the reasons it hasn't been scientifically proven is that we haven't

enough testing to... You cannot prove it.

Can you, Doctor?

No.

Mr. Gamble?

Mr. Barrett, thank you for coming by.

What's going on?

Well, nothing to worry about, Professor.

You know, I'm anticipating the defense to appeal. I think I told you this.

And?

My feeling is one of the grounds they'll be raising is the veracity of your

testimony. I thought I could best head that off at the pass by offering

polygraph results.

You could take the test in my office. It won't take more than an hour.

I thought they were never admissible.

For suspects. For witnesses, they can actually carry some weight.

I don't want to take any polygraph.

Why is that, Mr. Barrett?

Did you not tell the truth?

I'm going to need that polygraph.

Otherwise, I might be compelled to go to the judge and ask for a new trial.

I don't know what's going on, Ms. Gamble, but I'm not taking a lie

You could be facing perjury, Mr. Barrett.

I think you should have your lawyer pay me a visit.

Today.

All these names came out of your wife's Rolodex. I need you to go through it and

tell us who they are.

What are you looking for? The desperation of it will probably depress

Tell me.

Well, is there any possibility that it wasn't suicide?

That somebody else killed her?

What? I know it's out there, but, well, she was leaving you.

Suppose she was seeing somebody else.

Suppose after you two fought, she called him and he came over to get her. And

killed her?

I haven't exactly thought it through. I'm just... I'm just groping for

something.

You're right. This depresses me.

Just go through the list. I want to know who everybody is.

What about the appeal?

We're putting it together.

Listen, Scott, you have one of the grounds we need to talk about.

It could cost me my bar card.

What are you talking about? You were denied your right to testify by me.

You were adamant about getting up there, and I just cut you off and rested the

defense.

I think it's an issue.

Well, you did it because you believed it was the best strategy. But in the end,

it has to be your decision, and I totally usurped it.

You might want to think about hiring a new lawyer and making that one of the

grounds for appeal.

What, can't you argue it?

It's a little strange for me to argue my own infraction.

Bobby, the situation that I'm in, it's not like I'm going

to get out of here. I know the odds.

Now, if I am to have any chance...

I need a lawyer who feels he's in the hole here with me.

And you're it.

Now, doctor, can you get the arsenic on your skin by touching the playground

equipment? When the coating breaks down, absolutely.

It can even be inhaled, especially when the wood is wet.

Have any studies ever proved this?

Yes.

And the EPA evaluated studies in 1978 and further studies in 1981 and

1987.

All right, doctor.

Is this wood a real risk in your medical opinion?

Everybody defines risk for themselves.

But let me put it this way. These things are cancer death traps. And they're in

backyards all over the country.

Those EPA tests about inhaling and ingesting the arsenic off wood, those

were on unsealed wood, weren't they, Doctor? I believe so. Well, the wood on

this playground equipment was coated.

In time, the coating breaks down and seepage from arsenic increases.

What about the wood we use to build our houses?

That's all treated with a termite pesticide, isn't it? Yes.

Carcinogen?

Probably. So maybe even our houses are potential cancer death traps. Right,

Doctor? We can't rule it out.

Overall, I think he came off well, and it was a good first day.

We still obviously have big problems on causation, but I think the jury's with

us. They definitely are.

I was watching their faces.

What happens next?

They'll put up Feldman from the EPA.

Lindsay, you ready?

Totally. This guy is tough. He's got experience as a witness, and he's not

afraid to go right back at the lawyer.

I'm ready.

If we do damage here, our chances become very good.

Do we testify? We've decided to hold you for rebuttal. We want your testimony to

come as close to the end as possible.

Our goal is for the jury to be thinking of a family in that room, not just

chemicals and a bunch of scientists.

But your feeling is it's going well so far?

I think it's going quite well.

But their big gun comes next.

Are you okay?

Yeah. Yeah, I'm just, uh, just thinking.

You cross from the doctor?

I've got to get him, Bobby. If I don't get him... You will.

You will.

First of all, whether a district attorney thinks a witness lied or not,

no relevance.

It does to me. It's the prerogative of the jury to weigh his credibility. They

did so.

Mr. Stone.

Your client lied.

A man is serving a life sentence in part because of that lie.

Allow me to be a little bit uncomfortable with that.

Okay, Miss Gamble.

I'll put myself in your shoes and feel your discomfort.

Now you put yourself in mine.

Why in God's name would I ever agree to let Kyle Barrett take a lie detector?

How about simple justice?

I was away last week. Did the system suddenly become about that?

I don't find cynicism persuasive.

Well, idealism can be pretty incredible as well. I will not let my client expose

himself to possible perjury charges. I will grant him immunity on that. Nor

I advise him to help undo the conviction of his sister's killer.

Mr. Stone, I won't sit quiet on this.

Please.

What are you going to do?

The Environmental Protection Agency did extensive testing on CCA throughout the

80s. We continue to test it, and we have consistently found that it does not

pose an unreasonable risk to either children or adults.

But with the possibility of a risk, shouldn't the EPA do something? We have.

The EPA developed a warning program which requires retailers to issue

that CCA poses potential hazards.

Their contention that we have done nothing here is false.

I think their main contention is you haven't done enough.

We have federal insecticide laws to deal with. Under the law, we have to weigh

the potential adverse effects of a chemical against the economic and social

benefits and costs.

With CCA, it would last up to five times longer.

Now, this represents a huge benefit to schools who could never afford

playgrounds otherwise, to poor communities who could never build them

the preservative. But with the chance they cause cancer, do we want schools

building them? Well, if it really caused cancer, of course not. But to date,

there is no conclusive evidence that exposure to CCA causes cancer or any

neurological side effects. There just isn't.

Are there any conclusive studies to show that it's safe?

No. Nor are there with most food preservatives.

Should the FDA ban potato chips?

Potato chips don't contain a pesticide. The pesticide is coated.

It is sealed, counsel.

What if the seal doesn't work?

You're aware of Dr. Stilwell's study showing the arsenic is leaching from

playground equipment into the soil?

That's one study.

The EPA has asked to see the data supporting it. Until we review it, we

attach any scientific credibility.

The state of California does.

They banned these wooden play gyms from schools unless they're recoded every

other year out of fear that the children could be poisoned.

Many scientists feel that that was an overreaction.

In 1997, a group of physicians and scientists informed the EPA that wood

preservatives constituted a health threat to this country. Yes, and

conservationists lobbyists on behalf of the rainforest.

But without these preservatives, more trees would be cut down.

So kill a child, save a tree?

Objection. Sustained.

You talked about the EPA requiring advisories, warning that CCA poses a

potential health risk.

Yes. Actually, that was a voluntary program, wasn't it, Dr. Feldman? If the

industry didn't want to issue the advisories, they didn't have to, and

them still don't, right, Doctor? This wasn't a situation where a mandate was

warranted. The truth is, you were all set to issue a mandate here.

when the wood manufacturers suddenly lobbied Congress to get you to back off.

don't know anything about that. And isn't it true the EPA also backed off,

requiring further studies, when the chemical industry gave $4 million in

campaign contributions to congressmen to lean on you? The EPA has never been

bought, counsel, I assure you.

I show you the EPA's 1981 position paper regarding inorganic arsenicals, and I

ask you to read the highlighted paragraph.

All this basically says is we don't know.

You don't know.

That same paper cites a 1973 study which associates arsenic -tainted milk with

severe retardation, lower IQs, and abnormal EEG findings.

That was a study of Japanese babies.

You don't count Japan?

What else doesn't the EPA know, doctor? And when did they not know it?

Objection. Withdrawn. In 1996, the EPA failed to warn over a million power

employees that they were at risk for mercury poisoning. Objection. Because

coal lobby pressure to you backed off there.

Objection. Relevance. Goes to pattern. They were bought then just like they're

being bought now.

Objection.

Overruled. You lay off chemical companies, don't you, Dr. Feldman? That

absolutely not true.

From 1989 to 1998.

Of all the hundreds, if not thousands, of pesticides out there, how many did

get neurotoxicity data on?

I don't know the exact number.

I do. It's nine.

Of the hundreds, if not thousands, of industrial chemicals, how many did you

for and get the neurotoxicity data on?

Again, I don't know the number.

It's three.

You guys are quite the watchdogs.

Objection! Withdrawn.

Nothing further.

Of the five names you couldn't identify, two were maiden names of married women

you did ID.

One was a pool contractor.

Oh, yeah, we were thinking about installing a pool last year.

One we're still checking. One was a psychiatrist, Dr.

Bernard White.

Psychiatrist?

Was your wife seeing a shrink?

Not that I'm aware of.

He's in Cambridge. I'll pay him a visit.

Listen, on the other...

I understand if you want to replace me, I'd even recommend it.

Can you recommend someone as good who will try as hard?

Look, Bobby, I'm glad you think you screwed up. It's my insurance policy

you'll keep trying.

I'll keep trying.

You don't have to worry about that.

I'm not.

They told us it really wasn't that uncommon for a boy to have seizures.

Did they test him for epilepsy?

Oh, they tested him for everything.

They finally settled on a toxin getting to the brain.

And what did you do?

There was nothing we could do.

We got him on medication, which controlled the seizures.

We thought, you know, that was that.

Then, uh...

Sarah started falling down.

What do you mean she started falling down?

She would trip.

If she tried to play hopscotch, she'd fall flat on her face.

They thought maybe she had cerebral palsy.

And then things started to happen with Everett?

He can't read.

He will never be in a normal class.

He'll never go to college.

And you knew.

Objection. I have a boy whose body convulses with foam coming out of his

and a daughter who keeps falling down and a son who can't read and you people

have known for 30 years. Your Honor. Mrs. Jameson, please just answer the

questions you're asked.

What was the question?

The question was when your son started having seizures.

Didn't the doctors say it could have come from a whole host of chemicals,

including the cleaning solutions you kept in the house?

And then I got rid of all that stuff.

Do you live near high -power lines?

Yes. And did the doctors inquire about them?

Yes. They ruled them out as a cause.

Did you and your husband undergo any genetic testing?

No.

I see.

Where is the play equipment today?

It's still in our backyard.

You think this equipment is harming your children and it's still there?

We don't let them play on it. Well, why not get rid of it altogether?

Our lawyers told us not to, not until we... Objection. I need to advise my

client that that is privileged.

She does not need to answer that. It's also a work product.

You kept it as evidence for your lawsuit?

Objection. Sustained.

Just one last question, Mrs. Jamison.

Did any doctor who treated your children...

conclude that their problems came from the CCA and the play equipment? Did any

of them conclude that?

No.

Thank you, Mrs. Jameson.

We really appreciate you taking the time.

Sure. But as I told you on the phone, I'm not comfortable revealing

about my patients.

I understand.

You did treat Mrs. Wallace, then?

I know the identity of my patients aren't protected by privilege, Mr.

Nevertheless, I am reluctant to reveal them. But as you said yourself, that

isn't privileged, and even if it were, it wouldn't survive the death of the

patient. Mr. Donald, I know what the law is. I know you can subpoena my records.

Hence, I agreed to this meeting.

Could you tell us what you were treating her for?

Anxiety, sleeplessness, and depression.

Did you say depression?

Yes. You know that we argued that she killed herself.

Yes, I read the papers.

Why didn't you come forward?

The prosecution was claiming she wasn't suicidal. You had information that she

was depressed.

Mr. Donald, 80 % of my patients are depressed.

They don't typically take their own lives.

But sometimes they do. How could you sit on this?

I sat on this because I don't believe that Karen was suicidal.

The jury convicted him because they didn't believe the idea she was

Don't yell at me. I will yell at you. Bobby. What the hell were you thinking?

All right. I was thinking she was probably murdered. Well, you were wrong.

Bobby.

He needed Scott.

Can we get those records?

Please.

We live in a land of chemicals, and it's pretty out of control.

There's an epidemic of autism in California. It's up over 200 % in the

years. In New York, learning disabilities are up 55%. The likely

Chemicals.

And we can't expect the private industries to monitor themselves.

The market is just too competitive, just like in everything else. If the wood

manufacturers can make these play gyms and deck porches better, more

they will.

And they won't worry about the toxic side effects.

And that's why we need the EPA.

Just like as the airlines become more competitive and cut back on their

mechanics to increase profits, we need the FAA to step in and protect us.

So too do we need the EPA to fulfill its duty to the public.

And the fact is, they're not.

They've known for decades it could be dangerous.

And they have done nothing.

They are still doing nothing.

Why?

In part, because of politics.

Campaign contributions from chemical companies and wood manufacturers have

resulted in successful lobbying to get the EPA to back off.

And children, like the Jamison kids, are getting severely hurt. The EPA throws

its hands up and says, hey, you can't prove it. We don't know for sure. We

have the data. Tests are incomplete.

Well, why aren't they ordering those tests? Why aren't they demanding data?

They've restricted the use of CCA around farm animals.

But not around children.

Is it because the farming industry has a lobby but children don't?

What is going on?

They've known for decades that there's arsenic in that wood. It gets out. It

gets ingested. It gets inhaled. And they haven't done so much as to alert the

public of the risk.

And that's all it would have taken here.

A simple warning.

And the Jamesons never would have put that play gym in their backyard.

You heard their star witness, Dr. Feldman.

He said EPA decisions are made on a cost -benefit analysis.

We need you to put a big price tag on their failures.

We need you to make it cost -efficient for them to protect our children.

One thing is clear.

If you don't, they won't.

She's right about one thing.

We do live in an age of chemicals.

Want to kill the mosquito with the Nile virus?

Chemicals. Don't want to get botulism from your canned soup?

Chemicals. Preservatives.

And I suppose the EPA could demand proof that every one of those chemicals is

completely safe before allowing their usage. And people would die of

contaminants and viruses and bacteria. Many, many more people. Almost every

consumer product poses some unproven health risk.

Should the EPA ban them all?

They studied CCA inward.

The EPA appointed a special scientific advisory panel to look at this. Their

recommendation back to the EPA was not to ban the substance.

Now... The plaintiffs may not like those scientific findings. They may choose to

disagree. But this notion that the EPA knew it was dangerous and chose to

the risks under the influence of paid -off congressmen, that's as slanderous

it is baseless.

This is something they are studying. The EPA is a government agency doing its

very best to keep up with this rapidly changing scientific landscape and the

decisions it makes.

They have to be made on what is known as opposed to what's not.

And today, like yesterday, it has not been scientifically established that CCA

causes the neurological defects the plaintiffs speak of. And even if it did,

they have offered no medical evidence whatsoever that it did so in the case of

the Jamison children. Their own doctor admitted she was speculating, she was

guessing at what caused these injuries.

As much as you may feel for these children, and you should feel, as should

all, we have to admit that their entire case is based on pure speculation.

And nothing more.

You want me to sign this?

It's what happened, Richard.

An affidavit saying I coached a witness to lie? It doesn't say lie.

That's the implication.

Richard. What the hell's going on? We both know he lied. He made that stuff up

about his sister being afraid. Helen, what are you trying to accomplish? He

should get a new trial.

I'm not signing this.

Richard, we can't just let... You're not taking me down.

You might have some professional death wish. I don't.

And if you think that I'm going to let you go forward with... I was in the

I heard what you told him. I told him what his testimony needed to accomplish.

never said lie. But that is what he did.

You don't know that.

Maybe he lied, but neither of us know that. Maybe you can live with this

conviction. I can't.

Well, I'll fight John this, Helen.

I'll fight you all the way.

You know, Richard...

It's one thing to be competitive. It is another to try and rack up convictions

out of ambition with no regard for a man's innocence.

I don't believe he's innocent.

And if you go forward saying I coached a witness to lie, your career could be

over.

Our friendship definitely will be.

I don't know if the jury liked your closing, Lindsay, but the defense was

impressed.

We have a new offer.

What?

$225 ,000 per child.

That's $675 ,000, and they will write a check right now.

That beats $20 ,000.

It certainly does.

Should we take it?

Well, it's hard to turn that down.

Could we get more?

We could.

We could also lose.

I think we're going to get more.

Why?

I just do.

This isn't the time to get greedy.

It's not about greed, Mr. Berluti.

Like Lindsay said, we want them to fix the problem.

Angela has intuition about these things.

Let's go to verdict.

Are you sure?

Are you?

It's going to be more.

It's right here. Depression.

He wanted to prescribe antidepressants. She didn't want to take them.

It's all right here.

Lucy, see if we can get in to see Judge Wolfe this afternoon. This is new

evidence. Eugene, call Helen Gamble. Tell him.

Helen, we were just talking about you.

We got new evidence on the Wallace case.

Really?

I've got some news on that myself.

What?

I'm convinced that Kyle Barrett lied on the stand.

After being coached by the prosecution.

Is it a good sign, them coming back so fast?

No.

Deliberations on damages would have been lengthy.

If they find no liability, then damages will be moot.

Can we still take their offer?

I asked.

They laughed.

Madam foreperson, the jury has rendered its verdict. We have, Your Honor.

What say you? In the matter of Stephen Jameson et al.

versus the Environmental Protection Agency, we find in favor of the

and order the defendant to pay damages in the amount of $72 million.

Oh, my God.

All right, settle down.

This court is still in session.

Your Honor, the defense moves to remit the award. We also move that the verdict

be set aside.

Opposed. I will see counsel in chambers immediately.

What's going on?

They're looking to strike the award as excessive.

Can they do that?

Well, $72 million is a lot.

But that's what the jury found.

Let us talk to the judge, and we'll see what's going on. Okay?

The number alone tells you the jury was off base. The fact that they deliberated

for an hour. Maybe it has something to do with the merit.

All right.

I'm granting defense's motion to remit.

The knockdown number is 135 per child.

What?

You chopped it from 72 million to 400 ,000? That's less than they offered.

I don't care. Your case was pure speculation, counsel. This isn't a

law. You are substituting your judgment for theirs.

Which I'm entitled to do when the verdict isn't supported by the facts.

We have a right to a new trial. We do not have to eat your number. If you take

new trial, you'll be right back before me, Ms. Frutt.

And any number over 135, I'll remit again.

If you're lucky to win next time, there's no guarantee the jury will be as

stupid as this one.

And if you do win...

I might remit the next knockdown to 75 ,000.

I strongly suggest that you accept this proposal.

This isn't right.

This isn't right.

Meet with your client.

Then notify my clerk of your acceptance.

Given this newly discovered evidence concerning the victim's depression,

with this revelation by the district attorney regarding the veracity of their

lead witness, the interests of justice demand that the verdict be overturned.

the alternative, the court should order a new trial.

I take strong exception to the suggestion that I coached a witness to

There's no evidence the witness did lie. Only opinion. Coming from Helen Gamble.

Helen Gamble's opinion carries no legal relevance. I assure you she has no

credibility within our own department.

Why? Because she's honest? All right.

Your Honor, this was not our lead witness. This was a witness.

Who supplied motive? You challenged his truthfulness at trial.

You have nothing new with which to challenge it here. As for the doctor's

report... I spoke to Dr. White. He did not consider Karen Wallace to be

suicidal. The prosecution portrayed her as optimistic. Which you also challenged

at trial. Not with these medical reports we didn't. All right.

Ms. Gamble brought her concerns regarding this witness to the court's

As I told her, it is the jury's function to weigh Mr. Barrett's credibility, not

hers. As I go through her affidavit...

I don't think Mr. Bay crossed the line.

Lawyers prepare witnesses all the time. I see no evidence that he solicited

perjury. As for the doctor's report, I find that to be relevant.

But I am not satisfied that it would have resulted in a different verdict.

The conviction, therefore, stands.

Defendant's motion for a new trial is denied, and we are adjourned.

What happens now?

We go to appeals, challenge them to legal rulings.

I don't understand.

The judge can cut back an award if he thinks it's too high.

What's the point of a jury trial?

We'd go through all that with a jury.

Well, judges don't like to do it.

With this guy, I'm not sure.

So if we opt for a new trial, we'll get him again?

That's what he's saying. And he's going to keep it on his docket.

I think... I think we have to eat it at 135.

If he keeps jurisdiction, he's told us that we can't do better.

We could lose.

This is so unfair.

We should be able to get the money today.

We got no choice.

It isn't fair.

You blindsided the department.

Embarrassed it.

I think it would be best if you submitted your resignation.

You're not getting my resignation.

And if you fire me over this, then just watch the media come at you.

Why are you doing this, Helen?

We all say better to let a guilty man go free than put an innocent one in jail.

An innocent man is serving a life sentence, Kate.

If this were Texas, he might already be dead.

When suddenly did you become the jury?

The jury doesn't know he passed a polygraph.

The jury doesn't know a witness was coached, that he lied.

The jury doesn't know a lot of stuff, Kate.

I do.

You're right, Helen.

I can't retaliate over this.

So I'm going to just go back to my office and wait for your next mistake.

Every day, I'll just wait.

Thanks for dropping by, Kate.

Okay, look.

We had a bad day. We'll have them again.

We can't just sit here and brood.

Beck's right.

We gotta concentrate on picking up pieces now.

That judge, I'm going to get him.