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Halfway through this week's episode, there is a scene that epitomizes the public's reasons to distrust defense attorneys. (And then, by the end of the show, a reason to distrust this show's writers. But more on that later.)

In the show's pivotal scene, Jimmy informs Ellenor that their client, Clyde Miller, has agreed to plead out to second-degree murder. Miller is not a nice guy. Miller has killed a rabbi in the course of robbing him by bashing him over the head with a baseball bat. There is no doubt as to Miller's guilt. He confessed to both Jimmy and Ellenor that he hit the rabbi with the bat. Miller's idea of a defense is that he didn't know the victim was a rabbi. (Did I hear correctly? Did Jimmy say that Miller had the IQ of a "relief pitcher?") However, upon hearing Jimmy's news, Ellenor is astounded that Jimmy agreed to the plea bargain. Ellenor points out that the Commonwealth's case is not airtight. After all, there are no witnesses -- the only witness, the rabbi, was, well, murdered. Ellenor admonishes Jimmy that maybe he should have tried the case, since she had won an even more difficult case the week before.

To most people, this conversation is surreal. Isn't a trial a search for the truth? The truth is that Ellenor knows that her client killed the rabbi. She knows it. There is no reasonable doubt. There is no doubt at all. How can attorneys like Ellenor defend guilty people? Why, in such cases, should attorneys even try to get their clients off the hook? What kind of justice is that? If the truth is that the defendant is guilty, isn't an attorney's defense of his client nothing more than a slimy attempt to trick the jury?

Silly people, our criminal justice system is not about whether a defendant is truly guilty or not. It's about whether the Commonwealth can prove that the defendant is guilty. And that distinction accounts for much of the public's distrust of defense attorneys.

In this week's episode, the surprising truth is that the truth doesn't much matter in criminal law. The fact that Clyde Miller really did conk the rabbi accounts for little. Similarly, the fact that Jimmy knows that Henry Olson (a/k/a Henry Winkler a/k/a The Fonz) is innocent -- knows beyond any reasonable doubt -- is mostly irrelevant. The fact that he gives the Court his "word of honor" is meaningless. The Commonwealth had proved that Olson was guilty -- case closed. See what I mean?

The Fells Acre Day Care case from Massachusetts bears some superficial resemblance to the Olson/Winkler/Fonz case. In the 1980s, Violet Amirault, her daughter Cheryl Amirault LeFave, and her son Gerald Amirault, owners of the 20-year-old Fells Acres Day Care Center in Malden, were accused of have converted the center into a factory of child pornography and the most horrifying ritual abuse of helpless toddlers. Juries were persuaded to convict the Amiraults based almost exclusively on the coached testimony of very young children. No physical evidence or adult witness for any of the charges was ever found, despite the fact that the day care center had always been open to a steady stream of unannounced parents and tradesmen. Although it seems that the defendants' guilt is doubtful, the Massachusetts Supreme Judicial Court has refused to overrule the convictions, noting that at some point cases must come to an end. The Commonwealth had proved the Amiraults guilty and that is what the game is all about. Makes you think.

The other segment in this week's episode concerned a civil case for medical malpractice. The defense attorney, a lawyer from a large Boston firm, tried to shift the jury's focus from the facts of the case to the lawyers at Donnell, Young, Frutt & Dole. Although the title for the episode "Race Ipsa Loquitur" was a somewhat witty play on words, I didn't see much connection between the big bad lawyer's antics and Rebecca and Eugene's race. The segment was more of an attack on the supposed sleaziness of attorneys generally. Sort of a twist on the old "put the plaintiff/victim on trial" routine. Anyway, it was fairly unconvincing. Juries take their job very seriously. Attempts to misdirect their attention are generally bad ideas.

The real problem with the case that Eugene and Rebecca were trying was that it was not at all true to life. First, a $6 million verdict is way too high for Boston. Maybe in California, but not here. Moreover, in a real case, the plaintiff's theory would have been challenged much more severely than it was on the show. The defense would have had one, two or three expert medical witnesses to testify that it was not negligent for the defendant doctor to suck out twenty-two pounds of fat from his patient. These witnesses would have added that the doctor could have safely sucked out an additional twenty-two pounds. These experts would have concluded that the real cause of death was the victim's bad heart, or that this unfortunate result happens in small percentages of cases that medical science cannot avoid, or something like that. With experts disagreeing on the cause of death, the jury most likely would have come back for the defendant.

More quibbling. This was not a res ipsa loquitur case. Res ipsa loquitur is when no one can explain what happened but the fact that some bad result occurred when it should not have is sufficient to find negligence. In this case, Rebecca and Eugene had a very credible explanation for the patient's death. Res ipsa loquitur just doesn't apply.

A final quibble. I was traumatized that there was no explanation for the grape jelly. You may recall that the woman that Henry Olson's son apparently killed was found dead in a dentist's chair with a mouthful of grape jelly. In the course of interviewing Henry Olson at his home, Jimmy finds kitchen cabinets full of the stuff. Then nothing. No explanation, no nothing. The writers punted on the grape jelly. I felt like I was back watching Twin Peaks. There oughta be a law against stuff like that. Really.

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