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This week's episode opens with Martin Felder, a lawyer, found bludgeoned to death. After the obligatory lawyer joke from Detective Briscoe on learning the victim's profession (" I'll be mourning for the next five minutes . . .") the police begin their investigation and learn that the victim worked for a large corporate firm, billing 80-90 hours a week, all of which prompts more lawyer humor from Briscoe ("maybe he whacked himself over the head.")

The detectives discover Felder was working on an appeal in a death penalty case. His client, Steven Dupres, is on death row for the murder of a young woman, Dana Hagan, during a burglary of her home four years earlier. The prosecutor in the original case against Dupres was Andy Wolinsky -- a former Assistant District Attorney in the Manhattan District Attorney's Office -- who is now a judge. The key witness in the Dupres case was the victim's husband who saw Dupres leaving his town house after the murder.

In investigating Felder's death the police learn he had obtained a stay of Dupres' execution and was close to establishing someone else had murdered Ms. Hagan. That someone -- Michael Gordon -- had fenced some stolen property from the murder scene. A private investigator working for Felder had learned this from the widow of Gordon's fence. According to the widow, the police investigating Hagan's death had received a tip that her husband knew something and had questioned him about Gordon.

A couple of points are worth making about two identification procedures conducted in the investigation. First, Assistant District Attorney Abby Carmichael shows a photo array containing Gordon's picture to a bartender in the bar in which the fence conducted his business. The use of an array rather than a single photo of the perpetrator is proper practice since a photo array reduces the risk of suggestibility in obtaining an identification. However, in reality, an Assistant District Attorney would never have displayed the array herself because in doing so she might become a witness to an identification, thus risking being recused as prosecutor from the case. She would know to leave the photo array to the police.

The same criticism applies to the live lineup identification procedure conducted by Carmichael. She shows the lineup -- which includes Gordon -- to Mr. Hagan, who had previously identified Dupres as the murderer. Again, an Assistant District Attorney would never run a lineup due to the risk of becoming a witness to an identification. On the other hand, despite criticism from Gordon's attorney, Carmichael does nothing wrong when she asks Hagan, "Do you recognize someone?" during the lineup. That is a proper, non-suggestive question.

Once Gordon is in custody, the police commit a far graver error in continuing to question him about the Hagan and Felder murders after Gordon says "I'll wait on my lawyer." This is a clear violation of the defendant's right to counsel because all questioning must cease once a suspect requests the presence of his lawyer.

Once former Assistant District Attorney Jamie Ross (you may remember her from earlier seasons) enters the picture as Gordon's lawyer, the show explores an intriguing ethical dilemma she faced during the original Hagan murder investigation. She had been representing Gordon in another matter at the time, and learned he had murdered Hagan. She had also known Wolinsky was seeking the death penalty in his prosecution of Dupres. Faced with the choice between violating her ethical obligation to preserve Gordon's confidences, or violating her conscience by permitting Wolinsky to put an innocent man to death, she had done the next best thing. She made two anonymous calls to Wolinsky -- in the middle of Dupres' trial -- telling him he had charged the wrong man and suggesting that he investigate Gordon's fence in the hopes this would lead Wolinsky to Gordon. Although the circumstances were compelling, and although Wolinsky failed to follow through, in making those calls Ross clearly violated the attorney-client privilege. When exposed, she reports herself to the disciplinary committee of the New York Bar, but her fate is left unresolved at the end of the show.

Just as Ross' dilemma highlights the implications of the terrible finality of the death penalty, so does Wolinsky's refusal to investigate her tip. Indeed when Jack McCoy learns Wolinsky failed to investigate the appearance in the Bronx of a bracelet stolen from the murder scene, he decides to charge Judge Wolinsky with the attempted murder of Dupres -- for seeking the execution of an innocent man.

Several points here. First, charging Judge Wolinsky with attempted murder is a clear stretch. Given that Hagan's husband had identified Dupres as the killer, Wolinsky was guilty of ambitious arrogance in failing to follow a lead, but not of intent to commit murder. A more appropriate charge might be obstructing governmental administration -- a misdemeanor.

We learn at the end of the episode, after a judge dismisses the charges against Wolinsky, that during the Dupres trial Wolinsky had also ordered the police to wipe Gordon's fingerprints off the bracelet that had surfaced, and with these facts, the question becomes much closer. But at that point, the better charge would have been tampering with physical evidence, a felony, as opposed to attempted murder.

Another point regarding McCoy's case against Wolinsky. The judge rules that Ross can testify against Wolinsky by detailing her phone calls to him during the Dupres trial, but that she cannot testify in a murder trial against Gordon. The judge's rationale appears to be that, since the privilege belongs to Gordon, and not Wolinsky, Ross could testify against Wolinsky. In my opinion, this is incorrect. Only Gordon could waive the privilege and any further disclosure of that privileged information by Ross in a public forum -- even against another defendant -- would have to be a further, improper publication of privileged information.

But it is Law & Order's implication that Assistant District Attorneys in Manhattan commit abuses in seeking the death penalty that I find most off-base this week. During a preliminary hearing in Judge Wolinsky's prosecution, Ross suggests in her testimony that she became opposed to the death penalty when she observed her colleagues in the District Attorney's Office making decisions regarding the death penalty based on prejudice, competition, personal politics, or mistake. Nothing could be further from the actual truth. In fact, since it was re-enacted in New York in 1995, no Assistant District Attorney in Manhattan has ever sought the death penalty in a case. Moreover, it is a matter of public record that the Manhattan District Attorney has formed a committee of senior experienced assistants to make recommendations in cases eligible for the death penalty. The notion of an overworked Assistant District Attorney blundering into a decision to seek the death penalty, or worse -- doing so out of prejudice or politics, is a significant, and offensive, departure from reality.

And while we are on the subject, the suggestion in this episode that Assistant District Attorneys (here Wolinsky) routinely parlay convictions in high profile cases into judgeships is equally wrong.

One final point missed by the writers should be made. Whether or not the prosecutors are ultimately able to obtain an indictment and conviction against Gordon for the murder of Hagan, they still have the duty to bring to the court's attention any evidence that casts into doubt the propriety of Dupres' conviction. The prosecutor doesn't have to know who committed a murder to seek the release of an innocent person.

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