Original subtitles

Previously on The Practice.

His name is James McNam.

He's a business associate of Marsha's. The police have issued no statement as

yet, except to confirm that a fatal shooting did take place in the senator's

home. This is Alan Lowe. He just came over from Middlesex. Why do I care?

Because he's your backup on this. My father didn't know about the affair, but

certainly did.

First I got the gun, and I shot Mr. McNabb.

Your Honor.

Chambers! No question, we're having our hand forced by perjury. But the

likelihood is he flipped out and he shot the guy, and we would be crazy to walk

away from this deal. I only accepted this plea of manslaughter because my

conscience cannot permit allowing my daughter to accept any culpability for

act. And if she is the shooter, I am going to eventually prove it.

I say this now, client.

To attorney.

Jim McNown had his affair with Keith.

What? You all were so close.

You just had the wrong spouse in bed.

And the wrong one with the gun.

Made a mistake.

I will now serve time for that mistake.

I appreciate you coming in. If this is what I think it's about, I'm happy to

have the discussion here instead of my home.

We can go into the conference room.

I won't presume to know the anger you must feel

toward your husband.

Why, Joyce?

He's in prison for a murder he didn't commit.

Can you really live with that?

Is that your concern?

How I'm holding up?

If I could negotiate a favorable deal with the district attorney... No.

Marsha... Eleanor.

I told you what I told you under the seal of attorney -client. I know this,

but... Then let me tell you something you may not know.

If you reveal my confidence, I will sue you.

And this firm.

Do you really think I'm afraid of being sued, Marsha?

Keith can accept it this way. Why can't you?

Because I can't.

If you pull that switch, Eleanor, at least have the presence of mind to enjoy

it, because it will be your very last act as a practicing attorney.

What time? Around 9 .30, right after you left. Did she say what she wanted? No.

She and Eleanor went into the conference room, but they both seemed suspicious.

Ask Jimmy.

John. How are you?

I'm fine. How are you?

Great, great, great.

Everybody, this is, uh... Well, I know who you are.

John Mochner, this is Rebecca Washington, Jimmy Berluti, Lucy Hatcher,

Young.

To what do I owe this?

One to engage your services, actually.

I have a client scheduled for execution on Thursday.

He wants me to be with him in Indiana, which means I need local counsel up

Rule 48.

Actually, I start trial on Friday.

Bobby, there's really nothing to do.

I just need somebody of record, just in case. Me.

Me.

I think Rebecca might be interested.

Okay, excellent.

Give me ten minutes, I'll bring you up to speed.

John Markler.

Who's he?

He's in for death penalty appeals.

He's stayed more executions than everybody else combined.

Vivian?

Hey, Eugene.

What's wrong?

Well, Leonard sent me to tell you that he

doesn't want you for the parole hearing.

What do you mean he doesn't want me?

He doesn't want you.

Well, did he hire somebody else? No.

He says he just wants to represent himself at this time.

You know how he gets.

Let's go.

All federal executions are in Indiana.

Jurisdiction of the case, though, is still in Boston, which is why I need

counsel should there be any last -minute appeals, which there won't be.

Walter's waived them.

What did he do?

Killed a federal employee.

Wasn't very pretty, but that was then.

Today, he's a different man.

And he's ready to die.

He wants to die.

He wants closure.

I was hoping I'd get to do something.

Can I meet him?

What if he changes his mind and suddenly does want me to file an appeal?

It would help for me to be able to represent to the court that I know him a

little.

Okay, good point.

You want to come with me now?

Oh, sure.

Well, let's go.

Keith was sleeping with the guy and she shot him.

But she prefaced it with client to attorney.

And I know ordinarily it has to be sealed.

But since we represent Keith as well, and this could help him... This is why

should have never represented both of them. The question is, what do we do?

I don't think there's anything we can do. So the congressman is gay? We just

back and let an innocent man... You try to convince her to come forward.

Oh, yes, she didn't exactly waver in her response.

Keith knows she did it, and he's taking the fall. That's another story, but yes.

Have her come in again and see how well she plays poker.

I know you did the best you could. I know that. You also know that I paid for

half of the investigation with my own money.

So you don't feel entitled to tell me you're angry. Instead, you just dismiss

with this passive -aggressive... Hey, if I want to fire you... Send your wife to

say don't come. You're fired then, okay?

If that's the way you want to hear it, hear it that way.

I figured.

The only chance to convince the board to let me go is to go in there and put

myself before them without the she or the lord. Without the advice, because

know what my advice will be. Enough!

Shut it down!

What message do you plan to be bringing, Leonard?

I'm innocent.

Same methods as my trial.

At appeal.

I'm innocent.

You will lose.

Now, if it seems like I'm taking this personally, it's because I know you're

innocent. And I know I'm the lawyer who lost this.

I got the witnesses lined up.

I've done my homework on the board.

Let me do this with you, Leonard. You've got a wife out there, man.

A son who wants his dad to come home.

Let me help you.

Didn't you explain it to her?

Yeah, but she wanted to meet you.

Okay.

Mr. Mockler tells me you've pretty much given up hope.

Who I was when I committed that crime and who I am now.

Two very different people.

I guess that makes me curious as to why the person you are now wishes to be

executed.

Do you know the atrocity of my crime?

I stabbed a woman 78 times.

I studied this.

I prayed.

I was trying to find a way to forgive myself.

And then I saw the truth.

Forgiveness is somebody else's job.

And he's already done it.

He washed me clean the minute I sincerely repented.

When you pray, do you tell God what you want?

Or do you ask him what he wants?

God doesn't forgive you so you can die happy.

I think he washes you clean so you can start over, so you can learn and

struggle.

And do his work.

Walter, you could live another 40 years.

And how much good could you do in here in that time?

How many people could you help?

How many souls could you save? Maybe you could start some ministry.

Walter, have you ever thought of that?

We could file an emergency hearing in First Circuit.

He seemed like he might change his mind.

Rebecca, let me ask you a question. Do you think you helped him there?

First of all, there aren't any more issues we've exposed to them.

There's always something.

No. It's not going to be a stay of execution.

No commutation.

All you succeeded in doing just now is agitating him.

So instead of dying with any sense of closure, or feeling at peace with God,

might now feel his death won't be satisfactory penance.

So, the one thing he had left to cling to, you perhaps just stripped him of.

It's not a cause, Rebecca.

He's a human being who will die on Thursday.

Perhaps a little more painfully now.

The prison parole officer will testify for you. He supports your release.

Well, you'd think that should be the end of it.

We wish.

The board is made up of four prosecutors, a retired police

probation officer, and an advocate for victims' rights.

It's stacked.

Okay.

Let's turn to it.

You know what I'm going to say. And you know what I'm going to say when you do.

If you do not take responsibility for the crime, they will never let you out.

will not say that I committed that crime. I won't say, go to hell. You

son of a bitch. You want to be proud?

You got a kid at home without a father. How proud is that?

Hey, God, get him out of here. Hey, stay the hell away. This is Lord playing.

Don't come near us.

I'm not leaving.

You have to.

They do not let people out of here unless they show remorse.

And that's the only way.

It's the only way.

I met with my partners on this, Marsha.

and we need to inform you of our decision.

After very careful consideration, we've decided to risk sanctions from the

Massachusetts Bar, and we're going to reveal your privilege communication to

Frutt. We feel the sanctity of the attorney -client privilege is simply

outweighed by the injustice caused to your husband.

Add to that, as officers of the court, we feel we have an obligation to

that an innocent man is serving a prison term for a crime he didn't commit.

Now, we have two choices.

We can go forward with you here or without.

Going with you, we feel we're in a better position to protect you.

We may even be able to negotiate a reduced plea given our relationship with

district attorney.

Obviously, it's best for you to join hands with us here.

I completely agree with you.

With a few small exceptions.

First... If you reveal a privilege, particularly this one, you don't simply

sanctions. You'd be disbarred.

Second, by doing so, you perhaps unwittingly shield me from any

since Eleanor won't be permitted to testify, and the DA would never be able

build a case independent of the poisonous fruit. Third, the DA got a

for this crime. Good luck getting her to reconsider it.

Fourth... I simply don't know what Eleanor is talking about. She must have

misunderstood something I said. And fifth, could you all go somewhere and

respectively self -fornicate?

I understand I may have perhaps riled you up.

That was not my intent.

I understand that. I was only trying to convey...

Walter, if you in your mind were choosing death to serve God, it's

serve God with your life's work as well.

I think it's best if I accept my punishment.

Okay. I do thank you.

It was nice to meet you.

It's nice to have lawyers that believe in the Lord.

I owe my salvation to Mr. Markler.

I know that.

You do?

Why?

He opened my heart to Jesus.

John Markler did?

Of course.

Did... John Mochler persuade you to sacrifice your life for Jesus?

He persuaded me to serve Jesus.

To embrace him.

And you're serving him by dying?

By accepting the punishment for my sins.

Let's just start.

Can I begin? Because I don't think there's anything to talk about.

We can't break privilege.

It's not that simple. I think it is.

Privilege exists to protect the client. Here we have competing client interests.

It doesn't matter.

It does matter. It's not absolute, and there are exceptions.

But this doesn't qualify as one of them. Everything she said is true.

We'd face disbarment. It wouldn't do any good.

Plus, what she didn't say is we're in the business of keeping clients' secrets

no matter what.

There is one other way.

Go to Keith.

He can still blow that whistle here.

Can I tell him what she told us?

Is that violating privilege?

I don't think so. And even if it does, it's nothing that she can make a meal

of.

Would you be okay with me going to Keith?

I think we can live with that.

He didn't exhaust all the appeals.

What? John Mockler, the thumb he left out for Walter Dawson, and there have

others. What others?

Death penalty clients who suddenly found God and decide to waive last -minute

appeal. John Mockler helped them all find God.

He's helping the state kill his clients.

Is this why you want them to see me?

You do seem to have a high percentage of clients who find God.

Right before they die.

When was the last time you faced death, Rebecca?

It can make you turn to spirituality, believe it or not.

You said you exhausted all of Walter Dawson's appeals.

You didn't.

What'd I live out?

He was diagnosed with fetal alcohol syndrome.

That was raised at trial.

For diminished capacity.

It should have been raised again for sentencing.

I don't think it would have had any effect.

And I come down against drafting kitchen sink appeals.

You only lose credibility.

You had another client, Larry Wilcox.

You chose to raise FAS in his defense.

I thought it was more persuasive there. How come you didn't try it? Because I

didn't think it would fly.

And my client, by the way, instructed me to drop all further appeals.

After you helped him find God.

Rebecca, he's going to die.

What do you suggest they do, hand him a copy of Chicken Soup for the Soul?

All right. Now, I pursue all viable appeals.

And sometimes I even win them, if you bothered to check up on that.

But when there's nothing left, when there is nothing left, I do try to give

some consolation.

If they feel they're getting some kind of salvation, it helps.

I have been there, Rebecca. I've seen it.

It helps.

Well, it's been a long time since I had on a coat and tie.

You look good, Dad.

You think so?

The role officer goes up first. He's with us.

But remember, the boy doesn't figure to be sympathetic.

You can't let them antagonize you. You want to say that again?

You want to give me some sign you get it?

He gets it, Eugene.

He's ready to do what's necessary.

Baby. All I've had these last 12 years is my word and the truth.

If I say I killed that man... It's your only chance to get out. There's

been a lot of people supporting me, Vivian.

Raising money to pay his bills.

People going to the bank on my being innocent.

What do I say to them?

They all know this is part of the game, Leonard.

Me lying.

I got to go and lie to get redemption. That's the game.

Dad, just get yourself out.

Come home.

Eleanor went to see Keith. Eugene is at the Pearl hearing. And Rebecca...

You never went home.

There's more.

Rebecca... You might believe him, but I don't. There is nobody who's done more

to fight the death penalty than John Mochler.

Bobby, there's more.

What are you talking about?

Keith. I know.

Marsha discovered you in bed with MacNown.

She killed him.

I know it all.

How can you be willing to serve a sentence for a crime she committed?

My God.

Do you think being gay is worse for your image than being thought of as a

murderer?

I don't know what you're talking about.

Marsha told me to keep me from going after Allison.

She is lying to punish me for killing her lover. No, she's seeking to punish

by confessing to me she's a murderer. That really makes sense.

Keith, I'm one of your old friends.

I am not going to love you any less because you are gay.

For God's sake.

Do you know the letters I get?

They think I'm a hero.

Good for you, they say. I would have blasted him, too.

I'm a folk hero, Eleanor.

And when I get out, my constituency will still be there.

Michael Dukakis, his career died when he reacted with dispassion at the idea of

his wife being attacked.

Good for you, they say to me.

You shot the bastard. What man wouldn't?

Please. I'm instructing you to drop this.

I made my deal. I'm happy with the deal.

And as your client, I instruct you to just let this be.

You will carry out my wish, Eleanor.

I tell inmates, use the time in here. Don't let it use you.

And how has Leonard Marshall used his time?

Well, he's improved his education.

When he first came to us, he had anger issues.

Now he teaches the anger management course.

A lot of the inmates and even some of the guards, they look up to him.

I'm seeing in the file last month they found a syringe in his cell.

I think that syringe was planted.

When a man gets to parole hearing day, the first thing I tell him is check

your mattress and make sure nobody frames you by planting a knife or drugs.

If Leonard Marshall is released, does he pose any threat?

Not in my opinion.

How can you be sure?

Well, men his age have low recidivism rates, especially when they have a

network on the outside.

He's got that support from his wife and his son.

Correct me if I'm wrong, but half the men in prison today committed felony

crimes while on parole.

Well... Again.

Correct me if I'm wrong, but in 1991, 13 ,000 people were murdered in this

country by criminals on parole or probation.

Is the chairwoman introducing evidence?

Mr. Young, this is not a court of law. The rules of evidence do not apply.

I realize that, but... Also, there's no reason to object. No appellate court

reviews our decisions.

I don't have time for this.

I'm on a plane to Indiana within the hour.

Things seem to be a little coincidental.

Your most heinous clients seem to find God and waive all their appeals.

The ones who might be innocent, you push their cases to the end. And you think

that's coincidental, that the evil would be more predisposed to seek redemption?

You're deciding who lives and who dies, John.

The ones you choose not to fight for, you steer them to find religion.

You're conducting some kind of mad triage with your clients.

Now, what's mad is that suggestion.

I called a lot of the families.

You influenced death row inmates to waive appeals, to seek salvation.

I'm not listening to this.

I used to respect you.

All this time, I thought you were this big champion against the death penalty,

and look at what you are.

Do you know when you file for stay of execution with the Supreme Court, you're

lucky if one of the clerks even skims your brief?

Know why that is?

Because every attorney for every death row inmate files, claiming his case is

special. And eventually all of them, all of them, even the legitimate ones, fall

on deaf ears.

Now I'll tell you what the problem is, Rebecca.

Defense attorneys have no...

credibility anymore.

They pay attention when I call because I don't waste their time.

There is a reason I've gotten more stays than any other lawyer.

So you weed out the good cases from the bad and sacrifice people like Walter

Dawson? I did everything I could for Walter.

And I will be at his side tonight.

Bye, Bobby.

Finding out it was Leonard who did it was almost as painful as losing Jack.

We were all friends.

At least I thought we were.

How do you feel about granting parole to this man?

I'm a Christian woman, so forgiving people is something I have to try to do.

It took me a long time, but I did forgive Leonard, and I pray for him.

You've heard the testimony about the prisoner's exemplary behavior over many

years? Sounds like the Leonard Marshall I used to know.

Are you saying you support parole for your husband's killer, Mrs. Horan?

I don't believe in an eye for an eye, but I wouldn't want another family to be

destroyed like mine was.

So I pray.

that you keep him in prison for as long as he lives.

Thank you.

We'll take a 15 -minute break, and then we'll hear from Mr. Marshall.

It comes down to you.

I don't think I can say, Eugene.

I cannot say I'm guilty.

If you don't learn, you will spend the rest of your life in prison.

I swore to my wife and son that I wouldn't let prison make me hard or

me.

And if it wasn't for them, I don't know.

It sounds like you've done better in prison than out.

I'm sorry?

Well, on the streets, you seem to have had trouble holding a job.

And when you got fired from the garage, you got angry and committed murder.

Is it possible you do better in a more structured environment?

What are your plans if you're released?

After what I've been through here, I'd like to find a way to

help kids stay out of trouble.

Maybe become a counselor or... or teacher, or something.

At trial, you denied murdering Jack Horan, is that correct?

Yes. And you continue to deny your guilt throughout the appellate process?

Yes.

Do you now accept responsibility for your crime?

Mr. Marshall, did you not hear my question?

I heard the question.

Sir, Mrs. Horan is sitting right there.

She's been waiting 12 years for you to finally tell the truth.

Is that going to happen today?

Mrs. Horan.

I know you suffered so much.

And I'm sorry.

But I did not kill your husband.

Mr. Marshall.

Taking responsibility means admitting the crime.

Even if it's not the truth.

Leonard. Mr. Marshall, I will remind you, sir, accountability is a condition

for parole.

I didn't kill anybody. Leonard, don't. You're telling me to get out of here.

I got to show you I'm a good man.

And the only way to do that is to lie.

And say I'm a killer.

Well, I am not a killer.

I am not a killer.

Are you done?

I am not done.

You see, you have to make me say I killed him.

Because otherwise, you have to face the fact that you've got an innocent

man.

sitting in jail for 12 years for something he didn't do.

You just want to pretend you only got guilty people in prison.

Mr. Marshall, I warn you. You warn me what?

That I'm not going to get parole?

I was never going to get parole.

Not from you.

You know, it's a joke.

A damn joke.

Now I'm done.

Rule 48 says I can make an oral motion for an emergency stay.

Wait a second. Your client wants to be executed.

Because he was brainwashed by his lawyer.

Are you serious?

Your Honor, I really believe it's true.

I've been a friend of John Mockler's for a long... If John Mockler didn't want

to help somebody, why wouldn't he just decline to take the case?

Are you suggesting he took on clients for the purpose of securing their

executions?

Possibly, yes.

Why?

Well... He has cases he once heard at the appellate level at the Supreme

Because those courts are inundated with so many futile, baseless appeals, a lot

of deserving cases get thrown out with the bathwater.

So I think he takes cases to weed them.

If there's anything remotely redeeming about a client, or there's police

misconduct, or the guy could possibly be innocent, he goes to the mat.

For the scum balls, they all find God and waive final appeals.

He is deciding who's entitled to a defense and who's not.

On the record before me, Mr. Mockler has committed no malpractice.

And there is no evidence of any mental defect on the part of Walter Dawson.

Can you stay the execution for a week to at least take a look?

No.

But I...

I salute your innovation.

This is a new one.

Is John Mockler behind this?

No, he isn't.

Declare him incompetent? It's all I can think of. I mean, you should have seen

him, Jimmy. He sounded almost deranged. But he's still legally competent.

Eleanor, we're at a dead end.

There's nothing more we can do.

So you went to see Keith and told him what I said to you.

Why don't you sue me?

Eleanor, if you go any further with this, I will very much sue you.

Count on that.

Marsha, sooner or later, you're going to make a mistake.

Well, for now.

You'll have to wait until that happens.

I will.

You can count on that.

The fact is, parole is a political process.

A man convicted of murder wants to be released. If you deny that request,

nothing happens.

But if you grant it, there's always a chance he might kill again.

Nobody needs that pressure.

Nobody wants that guilt.

Nobody's looking for a public scandal, so yes, you could give my client a fair

hearing, but bottom line, what's in it for you?

Are you saying we're corrupt, Mr. Young?

I'm saying that what we've forgotten somehow is that this is a man, a man who

has fought to better himself, a man who has done his time with grace and

dignity, a man who deserves to be released, but because there is no

upside, you won't take the time to figure that out.

Now, I admit that a lot of these inmates probably should be rejected, but what

about the few who shouldn't be?

Yes, Leonard Marshall claims to be innocent.

And what if he actually is? With new technology, with the use of DNA, we know

for a fact that innocent people do get convicted.

This is not a forum to retry your client's guilt or innocence.

My client wants to go home.

He could have lied.

He could have come in here and said exactly what you wanted to hear.

But instead, he risked everything.

The chance to go home with his wife and son because he wouldn't give away the

only thing that kept his family sane for the last 12 years, the fact that he

is innocent.

This may not be the form to prove it, but don't tell me it's not relevant.

This is Leonard Marshall's family.

They were there the day he was taken away, and they are here now asking you

please give him back.

Take this chance.

Prove that you're motivated by justice, not politics.

Prove that you care about people, not publicity.

Prove that this board can be feared, but still fair.

That's what Leonard Marshall wants.

It's what he deserves.

Thank you.

Viv.

James, I, um... I know you're very angry with me right now,

and...

But I, uh, I just...

We're

ready.

Six minutes.

For the purposes of this hearing and our decision...

We must presume the defendant to be guilty as convicted.

That said, we're faced today with a man who committed murder,

who still refuses to accept responsibility for his crime.

I have never heard of any parole board granting release under such a

circumstance.

So today would be a first.

By majority vote, Mr. Leonard Marshall's petition for release

is granted.

We are adjourned.

No? Pretty much.

Oh, my God.

Still here?

Yeah, I didn't feel like going home.

Has it happened yet?

Any minute, I guess I have it on.

You did all you could.

There it is.

The sentence of death was carried out upon Walter Dawson.

The procedure was initiated at 12 .09.

Death was pronounced at 12 .23.

His final words were to ask forgiveness from the victim's family and from God.

That's all.

Thank you.

That was Warden John Couser, and now we are switching to Attorney John Mochler.

Surely, as Walter Dawson committed an act of murder, so did our federal

government this night.

Our country charges all over the world declaring itself a champion of human

rights. I ask you, from where do we derive our moral integrity?

Learn at hand, you know. He said, liberty lies in our hearts.

And once it dies there,

No constitution can save it.

I might suggest the same would be true for humanity.