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Bobby, You're Not in Boston Anymore . . .

Reruns. The good thing about this rerun of an early episode of The Practice is that it highlights how well the show has developed, in both character and story line. The bad thing: compared to many episodes from this season and last, it was pretty weak. Perhaps I shouldn't have watched the show while still cranky over Saturday's Redskins' loss (nice snap, guys).

Maybe my dissatisfaction was also due to my conviction that the show could have found better ways to showcase the "group contagion" defense, which simply says, "Hey, there was a riot, and I lost control just like everyone else around me, so I'm not guilty." The classic case of this is the looting and rioting at the annual Filene's Basement Wedding Dress Sale. You want felony assault and old-fashioned mayhem? Make a Run to the Basement. Things get so crazy at Filene's that -- true story -- an important government official was once falsely accused of shoplifting there. That import government official happened to be an Associate Justice of the Massachusetts Supreme Judicial Court. Oops.

Recap: the main storyline follows the criminal trial of Aaron Wilton, the successful Vice President of a profitable, well-known company. Aaron also happens to be African-American -- and shopping at a "Safeworld" in Brighton at the wrong time. He sees a security guard accuse a young black man of shoplifting, steps in to assist, and a riot breaks out. There's Filene's Basement-style looting and mayhem, and during the fray Aaron hurls the security guard through a plate glass window. Broken glass being sharp and all, the guard suffers grave injuries. Thanks to his role in the melee, Aaron is charged with felony assault and mayhem. Then, mid-trial, the guard dies from his wounds, so Aaron also gets hammered with a voluntary manslaughter charge.

Big problem for the defense: a security video clearly shows Aaron tossing the guard through the window --while neatly capturing the frolicking looters in the background for atmosphere. Aaron doesn't deny his actions but says it wasn't his fault. The Law Firm of Bobby Donnell (this, in the days before everyone but Jimmy-the-Grunt has made partner) expands on this defense. Aaron, Bobby says, lacked the criminal intent to commit the crime due to "group contagion behavior." Right. "When in a riot in Rome . . ."

The one other "justification" for homicide that might have fit this case would be self-defense. But the only evidence of that is Aaron's claim on the stand that the guard tried to strangle him. And Aaron's lawyers don't seem to buy that, so they stick with the Rome-Filene's-Basement-Everybody-In-The-Pool defense.

Got all that? Good. Let's talk legal accuracy. Or the absolute lack thereof. About two minutes into the show, the venue for Aaron's criminal trial is moved from Brighton - a low income, multi-racial and ethnic pocket bordering downtown Boston (and home to Fenway Park) - to Wellesley, an affluent suburb about 20 miles outside Boston with a homogeneous population (95% of its residents are a whiter shade of pale). I don't even know if Wellesley has a trial court. After all, the most common crimes are failing to curb one's dog and wearing white after Labor Day. If the show gave a reason for changing venue, I missed it. It certainly wasn't at the request of the defense, since Bobby tells his then-squeeze ADA Helen Gamble that he doubts Aaron will get a fair trial in Wellesley.

(I will say that, having been burglarized twice while living in the Brighton area during law school, I can understand the desire to move at least the criminal investigation out to Wellesley. I bet the Wellesley cops would have been appropriately horrified that my VCR and sorority pin were swiped. The Brighton officers were far too concerned about the bullet holes in the door of a nearby apartment . . .).

Assuming the change in venue is appropriate, Aaron has a chance with an all-white jury if there's an opportunity to play on "white man's guilt." And what better place for that than Wellesley? What the show doesn't tell us is that in the early 1990s, Wellesley received a lot of unwanted media attention. Unfortunately, local cops yanked Celtics first-round draft pick Dee Brown out of his car while he and his wife were house-hunting. Brown was cuffed, searched and thrown against his car because he fit the profile of a robbery suspect -- in other words, both Brown and the suspect were black men. Brown graciously accepted a very public apology from the town and, I believe, ended up buying a house there. The town is likely still sensitive about this issue and would likely give Aaron a fair shake.

But no matter where you hold the trial, the "group contagion" claim just doesn't work as a strategy for me for several reasons. First, if the intent is to play on the liberal guilt of an affluent white town -- seeking jury nullification since the defendant is caught in the act -- the last thing you'd want to do is make the jury fear the defendant. By characterizing Aaron as unable to control his own violent impulses, Bobby could lead the jury down a road he hardly wants them to take. The jury starts with the video image of Safeworld looting . . . they imagine the image in their own backyards . . . and place their hands over their mouths in horror. Just think! Rampaging hoards at Dean & Deluca! Guilty, Your Honor.

Second, precedent dictates that as a defense, "group contagion" just doesn't work. Clearly, this episode was based on the trial of those accused of assaulting Reginald Denny during the L.A. riots after the Rodney King verdict. The defendants there claimed they lacked the specific intent to injure or kill Denny as a result of "group contagion behavior." Neither the trial jury nor the Court of Appeals in California bought it in that case -- significantly more racially charged than this one. So why would a jury buy it here?

Third, Bobby and Eugene don't come close to proving -- or even attempting to prove -- that Aaron was affected by group contagion. There is no mention of any connection between Aaron and the looters during the course of the crime. And there is no evidence that the actions of the looters whipped Aaron into a frenzy or in any way contributed to his state of mind. Just showing a video isn't going to do it.

Moreover, neither Bobby nor Eugene has much respect for Aaron as a client. They describe him as intelligent, accomplished and a "good" man. But despite ethical obligations to the contrary, they don't think enough of his intelligence to clue him in on their trial tactics. These tactics include a plan to ambush him on the stand, portray him as a hostile witness in his own case, and elicit testimony about his involvement in the brutal, near-fatal beating of a janitor when he was a teenager.

Finally, Eugene does a complete 180 during his closing argument with no warning to anyone, including Bobby. Eugene's new theory? Aaron's rage isn't from uncontrollable violent impulses as a result of a rioting group. No, he was pissed off because he'd been targeted for several traffic stops in the past due to his race. That justifies throwing the security guard through the window. Um, wait a minute, Eugene. Aaron's problem was an inability to control violent impulses simply due to his race? Yikes.

But the jury buys Eugene's closing and Aaron walks. I understand rerunning this episode over the Martin Luther King holiday weekend. But if that's the real reason Aaron freaked out, I think the writers of The Practice could have ginned up a better story line involving racial issues. For instance, how about racial profiling in traffic stops?

Whatever. I'm late. A friend of mine called. She's got an uncontrollable impulse. To go shopping at Filene's Basement.

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