Original subtitles

Previously on Picket Fences.

The man may have killed a 16 -year -old girl.

No polygraph.

And I don't want you even talking to him.

We've been looking everywhere for this girl.

I didn't do anything.

In the name of God, she deserves a Catholic funeral.

Tell me someplace to go.

Give me a hand.

That statement was coerced without counsel.

The statement was voluntary.

Deputy Lacus prevailed on my client's Christian sympathies.

Mr. Latham, you are going to trial.

If the Supreme Court has a problem with that, they can come and get me.

We find the defendant guilty as charged.

This case is going to the Supreme Court. You and I are going to argue before the

Supreme Court.

Come on in.

Okay, very funny.

Whose blood sample was this?

Just give me the results.

Carter? I don't have to tell you whose blood it was. I just asked you to do a

simple test, so please, give me the results.

You led me to believe this was your blood.

Let's just assume that it is, Jill.

Give me the results.

Please?

Okay.

Congratulations, you're pregnant.

I know you're good, Mr. Wambaugh. It isn't that.

Brian, there is no way, no lawyer, F. Lee, Bailey, anybody, there's no way

anybody could be more prepared than me.

But you don't believe I'm innocent.

It really doesn't matter. It does to me.

See, Mr. Wambaugh, you got it wrong.

I don't want my lawyer to act like his life depends on it.

I want the guy to act like my life depends on it, because it does.

I want a lawyer who knows that I didn't do it.

When those judges look at my lawyer, I want them to see it in his eyes that I

didn't do it.

Are you that lawyer, Mr. Wambaugh?

I haven't been, but I will be.

Go to Washington.

But don't you dare go for you.

Go for me.

Positive.

That means we're about seven weeks.

I still can't believe it.

I mean, I guess I just can't believe it.

Okay, now, Stacy, your privacy concerns aside, you have to start making regular

doctor appointments.

And it's not too soon for an ultrasound.

And I'm going to be wanting to do an amnio when the time comes, too, so...

not get ahead of ourselves, Carter.

I like to be thorough.

Oh, God.

I'm going to be a father.

Yeah.

Wow.

I want to schedule an immediate checkup.

Oh.

I didn't mean to intrude. I...

I just came to see you, Carter.

You remember Stacy Halford? Stacy, this is Jill Brock.

Hi.

Well, congratulations, I guess.

Thank you.

Are you two together?

No, we're not.

But you plan to be parents together.

I plan to be the parent. Stacy has agreed to be my surrogate.

What?

We did it in vitro.

It was all scientific. Lots of people do it today.

Oh, I know that, yes.

I guess I'm just surprised.

There are worse ways I can spend my time, I guess, than give somebody a

What's wrong with that?

Nothing, nothing. And it's certainly none of my business.

Why don't we leave it at that, then?

Okay. Okay.

Me? I get to go?

Of course, you're my assistant.

I'm going to the Supreme Court?

All those cases we copied, I want them alphabetized. I need to refer to them

quickly. Brian Latham's life is in our hands.

And don't forget to pack my oxygen tank. And if you see me start to wheeze, just

whip it out.

I've never been so nervous before.

You're going to be great.

I've never been so nervous before.

Did I say this?

I repeat myself when I get nervous.

Did I say this?

It's just another case.

No, it's not just another case.

Why would the Supreme Court agree to hear this so quickly? Something is up.

What do you mean?

There are two things on the rise in this country. Crime and police misconduct.

Now, the court may have chosen this case as a test to squash one or the other. I

just wish I knew which.

Tomorrow morning.

We argue Thursday.

Shouldn't I go with you? It might help if the father of the victim was in the

room. No, no, they would view that as manipulation.

It's not wise to stunt with the Supreme Court.

The highest court in the land.

They may free the man who murdered my daughter because they don't like the way

you caught him.

Yes, sir.

No offense, Mr. Littleton, I know you have talent, but...

Shouldn't the Attorney General be handling it at this level?

Well, he's sending me.

Please don't lose.

Carter?

Stacey, hi.

Come on in.

Sit, sit.

I can't.

You can't sit?

I can't.

But it all seemed to make sense intellectually.

Oh, Carter, we've become such good friends now.

When you came to me and asked me, I don't think I've ever been more

And to give life.

What would be so wrong?

What are you saying?

It feels wrong.

I'm not comfortable being a surrogate.

Here's the check.

I'm returning the money.

Stacy, Stacy, what are you doing?

I'm not going to have the baby, Carter.

I know you're disappointed, but I just can't go through with it.

We had an agreement.

I know.

I'm sorry.

Please accept my deepest apologies.

My brother -in -law's a travel agent. He always bumps me up.

You'll have to thank him for it. Why shouldn't we be up here?

Hey, miss.

We're off to the Supreme Court.

Excuse me.

Could you speak just a little softer? I'd like to sleep.

Of course.

Miss.

I'll have his French toast.

You got profile?

On the Supreme Court justices, you got profile?

It's these little things that make the difference, the extra effort.

Oh, well, let me look at them.

They're mine.

You scared, John?

Please.

Yeah, completely.

Rehnquist, Scalia, Stevens, we're going to be standing up there in front of

them. I shouldn't tell you this, but Rehnquist... You have to call him Mr.

Chief Justice.

I know.

When Nixon swore him in, he called him Regberg.

Can you imagine?

The man makes it all the way to the Supreme Court, and on his big day, Nixon

calls him Regberg.

Terrible with names, Nixon.

Try to sleep.

I have an appointment with Dershowitz at 3 o 'clock.

Alan Dershowitz.

He's in Washington. He agreed to tutor me on what to expect.

I'm leaving nothing to chance, John. I'm going to win this case.

No, you're not.

Oh, yes, I am. I must.

Doug, if prepared as you think you are, you're not.

I plan to bury you.

We'll see.

Yes, we will.

I don't perform abortions.

I know. I was hoping you could recommend a doctor who does.

A good one.

So... Well, wouldn't your OBGYN be able to make that recommendation?

The truth is, I haven't told her I'm pregnant.

I'd sort of prefer not to. I'm a little humiliated.

I saw your car parked out front.

Stacy,

I'm begging you. Oh, Carter, please. Why don't you two go in here?

You

can't

abort this child.

I can't go through with it, Carter.

I'm sorry for doing this to you. I should have known before. No, you can't.

I know surrogacy is right for a lot of people. It's just wrong for me.

I have to do this.

I'll stop you.

You can't stop me.

Well, here we are, Wambo and Dershowitz talking law, discussing strategies,

constitutional scholars waxing. Mr. Wambo, please, my time really is

do have a couple of other cases, so if we can get right to the point. Well, I'm

ready on the law, but I need to know from somebody who's been there, somebody

who's been in that room.

I know it's just another courtroom, except with more judges, right?

Nothing to be... Mr. Wambaugh, this courtroom is unlike anything you have

seen in your life.

For starters, you'll be staring down nine Supreme Court justices spanning the

entire width of the room.

That can be a very daunting experience.

One justice will ask you a question from here. Then you'll be attacked from

there, and it will be an attack.

This is an aggressive court.

This is a confrontational court. This is an argumentative court. This is not

going to be a friendly experience.

Franklin Dell, appearing for Carter Pike, Your Honor.

Where's Wombo?

He's off to Washington.

Your Honor, this is an ex parte motion seeking a restraining order to enjoin

Stacey Halford from terminating her pregnancy.

What did you just say?

My client entered into a surrogacy contract with this woman. She became

impregnated through in vitro fertilization, and now she's endeavoring

terminate the seven -week pregnancy, and we are asking the court to intervene.

Well, there's an obscure case called Roe v.

Wade. It has nothing to do with it, Your Honor. She may have a right to an

abortion, but she waived it when she entered into the surrogacy contract.

there's no health risk here.

We're entitled to an enforcement of the contract.

Well, if a woman wants to have an abortion... Her body, her right. Yes, we

know the slogan, but this woman leased out her body for $12 ,000. She no longer

has that privilege.

And I would submit, what about his rights?

He went through in vitro.

He took drugs to boost his sperm count.

His child is in that womb.

What about his rights?

I can't force a woman to carry a baby to term. Of course you can, Your Honor.

The law already does that. A woman in third trimester, she seeks an abortion,

the court says no. The law mandates that she carry the baby to term.

That's a third trimester fetus, which is viable.

This pregnancy is only seven weeks.

Yes, Your Honor, but the point is that the courts can and do force women to

children in some circumstances.

It's done.

Well, this is another circumstance where they and you could do it.

We're not asking you to take away her Roe v. Wade right.

We maintain she already gave it away. We're simply asking you to enforce the

contract.

I want to hear from the woman and her attorney before I do anything.

Well, what if she decides to... I'll give you a one -day temporary

order. We'll have a full hearing tomorrow.

Adjourned.

What the hell could be next?

Will I get slaughtered?

The law's on your side, at least for now. But Scalia...

Rehnquist, Thomas, probably even O 'Connor, are looking for any excuse to

rid of Miranda.

This is a perfect case for them.

A drifter kills an innocent teenager.

It would be a very popular decision.

Scalia, you have to be really careful.

He is brilliant, but he can get very testy.

He's gifted at trapping lawyers, and he loves to watch a lawyer squirm a little

bit. Well, what about those on my side?

Won't they come to my defense?

Ginsburg, Stevens are probably going to be your best allies.

But tomorrow, they're not going to help you one bit. You're all alone.

There's only one person who can fight off Scalia, and that's you.

You okay?

When I'm nervous, I get winded.

Recently, I was diagnosed with multiple sclerosis. Maybe I could play it for

sympathy. That would not be a good idea.

Just a thought.

Rehnquist has a bad back.

Sometimes he just gets up in the middle of argument and walks behind the curtain

just a stretch. Don't let that throw you off.

Remember, you must always call him Mr.

Chief Justice. Not judge, not your honor, not justice.

You must call him Mr.

Chief Justice.

Nixon called him wrench bike.

Nixon made mistakes.

Now, Thomas.

Thomas you don't have to worry about tomorrow.

He never asks a single question. If you want to win over Thomas, just win over

Scalia. Thomas always follows Scalia.

Ginsburg. She asks sculpted, word -perfect questions.

But listen carefully.

She's a nitpicker.

One more thing.

Don't lecture them on the law. After all, they wrote the law.

Where your advantage lies is in the facts.

You were at the trial. They weren't at the trial.

Play up the facts. If you can persuade the justices that you know more about

facts than they do, it's going to help you on your credibility regarding the

law.

Let me see if I got it right. Let's see if I got it right.

Watch out for Scalia and Rehnquist.

Play up the facts.

Pay no attention to that man behind the curtain.

Oh, don't bother with Thomas.

And leave out multiple sclerosis.

Is there anything else?

Yes, Mr. Wombo, one more thing.

I don't want to make you nervous, but this is a really important case.

Not only for your client, but for the civil liberties of all Americans.

So the stakes are high.

Constitutional protections.

police procedures, and accordingly the pressure on you is very great. But

up for it.

One thing.

Tomorrow.

Douglas.

Be yourself.

Don't try to be something you're not.

You're going to do just great.

Zag is in.

We're locking up in 20 minutes.

I won't be here that long.

Give me a second, Kimberly.

John.

Yeah.

Kind of want to get the feel of the place.

Tomorrow, it all happens.

I hope I don't embarrass myself.

Doug.

You've earned the right to be in this court.

You made that appeal. You deserve to be here.

Thank you.

You're going to be great.

Make no mistake, I plan to kick your ass, but I'll be cheering for you, too.

And me for you.

We are here.

We are actually here.

The Honorable, the Chief Justice and Associate Justices of the Supreme Court

the United States.

Oyez, oyez, oyez.

All persons having business before the Honorable Supreme Court of the United

States are admonished to draw near and give their attention for the court is

sitting. God save the United States and this Honorable Court.

We will hear arguments in people of Wisconsin versus Brian Latham.

Mr. Wombau, you may proceed.

Mr.

Chief Justice, may it please the court, I waited 51 years to get on this stage.

In that case, we'll give you 30 minutes.

I represent Brian Latham on the appeal of his first -degree murder conviction,

which conviction resulted from a statement obtained by unconstitutional

In Minnick v. Mississippi, this court held, when counsel is requested by the

accused, all interrogation must cease, and police may not reinitiate

any interrogation later after the lawyer is gone.

And that's what happened here.

After I was gone, Deputy Lacus asked my client to tell him where the body was.

It was an unconstitutional interrogation.

Are you saying that after the accused says he wants his lawyer, the police

even talk to him anymore?

The deputy can't even say, hey, how's the weather, unless the attorney is

present? What I'm saying, Justice Scalia, is that he can't reinitiate an

interrogation.

How is the weather is not an interrogation, except maybe in New

Tell me where the body is.

That's an interrogation.

Suppose I were arrested.

I ask for my lawyer.

Then the police reinitiate an interrogation.

As a matter of law, I would have no capacity for a voluntary statement.

Under Minnick, no.

It would be impossible for the Chief Justice of the Supreme Court to

waive his right to a lawyer if the police initiated the encounter?

Yes, that's the law.

Well, that seems absurd, Mr. Wambaugh.

Maybe Minnick is bad law.

Oh, it's Supreme Court precedent.

I would submit, Mr. Renshberg.

No, I mean Mr.

Rehnquist. Mr.

Chief Justice, sometimes I mispronounce names on account of my multiple

sclerosis.

Quiet down, everybody. Quiet. I want it on the record that I'm making no

backdoor negotiations. It'll be on the record. I just want to do this in here

protect their privacy.

She has a constitutional right. There is no such express right in the

Constitution. Which entitles her to an abortion without his consent. Quiet.

How can you even entertain such emotion?

Because I'm a funny guy.

Fathers can't prevent abortions. The Supreme Court has said so. The Supreme

Court also says that a constitutional right can be waived. The Latham case

on this very minute. The issue being whether the defendant waived his

constitutional right to counsel. If he waived it, he loses it. The very same

principle is at work here.

She made no such waiver. She promised to carry that baby to term. So what?

You want specific performance?

Come on, did you go to law school? I'll choose my own legal remedies.

Thank you very much. Why are you doing this?

I said quiet.

Why are you?

All right.

First, is there any dispute that it's his child?

No.

And Carter, are you sure you want to challenge her on this?

I'm sure.

This is ridiculous.

Lady. It usually takes me a full five minutes to dislike somebody.

I'm ahead of schedule.

All right, I'm going to review the law.

The law is very clear.

The Constitution provides... The Constitution is silent on this matter.

The right to an abortion is only as clear as the nine justices sitting on

Supreme Court.

Do you know who's sitting up there today?

Didn't you meet with your client, Mr. Wambaugh?

Yes, I did.

And didn't you apprise him of the risk of speaking with police?

Of course.

In fact, I suspect, as a good lawyer would, you gave him a rather explicit

warning, and that you caused your client to understand his right.

So why shouldn't we find his statement here to be a voluntary waiver of his

right to counsel?

Because he was coerced.

Deputy Lackus knew my client was a devout Catholic, and he preyed upon my

client's Christian sympathies to get information.

Is it your position, Mr.

Wamba, that the incorporation of religion into a line of questioning

that any response per se as a matter of law could not be deemed to be voluntary?

Or is it your position that in this particular encounter, given the

hypersensitivity of the accused, that as a matter of fact, Mr.

Latham's response could not be regarded as voluntary?

I would ask you to repeat the question, but my time would be up.

I'm a character.

I would submit that in this particular incident.

Mr. Latham's response was not voluntary.

Minnick says, as a matter of law, the statement is automatically involuntary

when the police reinitiate the encounter.

Well, how would the police ever get a confession?

Almost every suspect immediately asks for a lawyer.

If he's not allowed to change his mind, if the police aren't even allowed to ask

him if he wants to change his mind, how are we to obtain valid admissions?

Well, I'm concerned today about the invalid ones.

Why shouldn't we apply an objective test for each case?

If the waiver is voluntary, let it in. If it feels coerced, keep it out.

Why apply this absolute restriction?

Because we need the absolute.

We need a prophylactic that gives 100 % assurance against coerced confessions.

If you give the police any margin, they'll abuse it.

That is a pretty sweeping indictment.

Well, Your Honor, I don't mean to suggest policemen are bad people.

I personally know the arresting officers in this case.

Officers Maxine Stewart and Kenny Lockers. People I admire.

But they're caught up in a system and a society that is gripped with fear.

And when afraid enough, scared people become willing to suspend civil rights.

It's going on all over this country. It went on in this trial.

when Judge Bone stood up and said, I don't give a damn what the Supreme Court

says. The hell with his right to counsel.

Well, that's what he said.

And he said, if the Supreme Court has a problem with that, they can come and get

him.

And the people of Rome, enlightened people, good people, they stood on their

feet and cheered Judge Bone when he said, to hell with the Constitution.

They cheered.

That's what's going on in America today.

People are afraid.

There's pressure on the police to do everything to catch the bad guys.

And they are doing everything, including crossing constitutional barriers.

That's why we need the Supreme Court.

When the police go too far, that's where you come in.

Well, they went too far in this case.

They denied Brian Latham his constitutional rights.

So this is where you come in.

Hi. Hi.

I've been thinking about how all of this is none of my business.

And I know that I should leave you alone.

But then it occurred to me that maybe the reason that you're doing this is

because you're so alone.

Surrogacy is an extreme step, Carter.

Going to court to enforce that I'm not gonna lie to you. I'm worried about you

What it's so crazy that I would like to have a child That I want to share in the

experience of parenting like Every good I

Know I could adopt maybe I will someday but I wanted my own flesh and blood to

you know carry on the pike name I'm 38 Joe

I can cling to the idea that maybe I'll meet somebody.

Have children together.

But I also have to recognize the reality.

I'm 38.

And I've never been in a relationship with anybody. Never.

I didn't know that.

Yeah, well, it's not something I...

Look, I'm not denying how ridiculous

this is, doing what I'm doing.

But... What's that old saying? Behind every desperate act, you'll find a

desperate man.

You're not a desperate man, Carter.

I have nobody in my life to love, Jill. What does that make me if not desperate?

This was no interrogation.

Deputy Locos volunteered to leave.

Brian Latham at least implicitly consented to the conversation.

And that's what this was, a conversation.

There was no accusation, no attempt to elicit incriminating evidence.

Simply a question.

Do you know where we might find Susan Ingram?

To categorize that as an interrogation, to say it rises to the level of

coercion, is completely contrary to fact.

You're maintaining that Minnick doesn't apply because this isn't an

interrogation. That's correct, Your Honor.

Counsel, he asks the suspect to point him to the body.

Suspect tells him.

It's a pretty incriminating answer, and exactly the kind of answer that the

deputy was looking for.

I maintain that Deputy Locco's intent was not to elicit incriminating

It doesn't matter. If the police ask a question that can reasonably elicit an

incriminating answer, it's an interrogation.

You're familiar with Rhode Island versus Ennis?

Yes, I am.

Then how did you get around Minnick?

The law says that you cannot re -interrogate after the accused makes a

for counsel.

Which is exactly what Deputy Lacoste did.

How do you get around that?

Are you suggesting Minnick doesn't apply?

Or are you advocating that we overturn Minnick?

I am suggesting to this court that Minnick be overturned.

This court erred in Minnick v.

Mississippi.

Well.

Isn't that exciting?

Mr. Chief Justice, you yourself flagged the problem.

It's become impossible for the police to get a confession.

Now, the point of Miranda and all these prophylactic protections is to guard

against compulsory self -incrimination.

We want defendants to know their legal rights.

We want their statements to be intentional and voluntary.

Minnick has distorted this protection to a ridiculous extreme.

It establishes... A systematic formula that can result in a complete travesty,

not only of justice, but of common sense.

To hold as a matter of law a suspect can't change his mind about having

in the room?

To say he automatically lacks capacity to make voluntary statements? Nothing in

the Constitution supports this type of premise.

Nothing. These are court -articulated protections that have expanded into

constitutional fairyland.

If you want to stretch a ruling on Minnick to its most illogical extreme,

need look no further than this case.

Brian Latham was a sane, competent man who knew his legal rights.

He had been given Miranda.

He had been warned by his lawyer.

Take a look at those trial transcripts. This man's testimony was precise.

He clearly knew what words to choose.

His statement to Kenny Locco...

was knowing, intentional, and voluntary.

And we are applying an automatic formula to redefine it as involuntary and throw

it out.

Well, if the Minnick test results in such an atrocious rape of the simple

then Minnick should be reversed.

Suppose the suspect is not so savvy as Mr. Latham.

Maybe he's more easily tricked.

How do we prevent the police from exploiting that situation?

Maybe the best way is simply to draw an absolute.

If he asks for a lawyer, stay away.

That's simple counsel.

Why can't the police just stay away until the lawyer gets there?

We can err too much on trusting the police, I guess, or on trusting them too

little.

Which error, in your opinion, would be more consistent with our Constitution?

I don't think you need to make either error.

I think your ruling should trust law and order and trust that the underlying

intent of the Constitution is to ensure a free nation.

Crime is making us all less free.

Now, the Constitution is certainly there to protect the guilty as well as the

innocent. I don't dispute that.

But the objective of the Constitution is not to set the guilty free.

The people of this country need to know that.

They need to hear that from this court today.

Please step back, sir. I won't let you back. Take your hands off me. Hey!

What's your name?

My name is Michael Duffy.

Never hit me, Mr. Duffy.

She contracted away her right to an abortion. She gave it away when she

into the surrogacy agreement. Your Honor, that is completely without merit.

Husbands have tried to sue mothers for emotional distress after abortion, but

the courts threw out those cases. Why? Because there is no precedent. Those

lower court decisions never ruled on at the appellate level. Excuse me, I would

like to finish my office. Will you let me finish? I'll finish.

Excuse me, Your Honor.

Could I be heard?

It would be refreshing.

Let's have the lawyers take their seats.

I'm not going to get into the abortion debate, whether the fetus is a life or

not. I know that it's a legal question for the lawyers.

I also know that it's a woman's personal choice as to whether she considers it a

life or not.

I would just like to say that the father, it's my personal belief that

it is a life, that it's my child.

And that is why I feel I must try to save it.

I also know, according to the Supreme Court,

I, as the father, have no rights here.

Legally, I'm irrelevant.

And I think that's wrong.

Without completely vitiating pro -choice, we should find some way to give

father some rights. After all, it's...

My child.

Before the Supreme Court can address this question, the case has to get

And in order for that to happen, we need some brave trial court judge who's

willing to make a ruling that putative fathers do count in this decision.

I've listened to your rulings for years, and I don't know any judge who has more

courage than you.

I guess I'm asking for me and my

child.

I'm asking you to be the most brave you've ever been.

I need five minutes.

Spent too much time on minutes.

Should have gone more to Brewer, played up the course.

You got him, Brewer.

How soon before they rule?

There's no telling. Could be quick, could take months.

I can't believe I said it.

Rentschberg.

Mr. Wombat, you were fantastic.

I was?

You stood up in the Supreme Court and were equal to nine judges.

I couldn't believe how good you were.

I wish Miriam could have seen it.

I wish Brian Latham could have seen it.

I saw it.

I was very proud of you.

Watching you fight the way you did, you made all lawyers proud.

Thank you, Kimberly.

And you did, too.

Very much.

Be seated.

On pregnancy matters, Roe versus Wade gives all the rights to the mother.

The father has none before viability.

The waiver argument was a novel one, Mr. Dell, but...

to enforce the contract claim to prevent a woman from terminating the pregnancy,

that would be against public policy.

The only way for me to grant Carter Pike's request would be to flat -out

the Supreme Court, which I've done.

One thing about being old, it can make you brave.

But I'm not that brave, Carter.

This case involves a baby, two parents, and a controversy

that no judge can ever truly solve.

The issue of abortion is a deeply personal one.

I am neither wise nor brave enough to be Solomon.

Plaintiff's petition denied.

Miss Halford is free to terminate the pregnancy.

Adjourned.

They

came at

me, especially Scalia.

But I fought them, Brian. I fought them with all I had.

When will they rule?

Well, there's no telling, but it would be nice if those Reagan appointees could

retire first.

But the law is still on our side.

Minnick is the key.

Now, I ordered a transcript, so you'll be able to read every word.

Douglas Wambo in the Supreme Court.

I had a moment.

Kimberly, what are you doing here?

This came in.

How could they rule so fast?

What?

They reversed Minnick.

Our appeal was denied.

What does it mean?

What does it mean?

It's over.

We've lost.

You said the law was with us.

You said they'd follow the law.

I don't know what to say.

But the law just changed.