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This week's episode was entirely devoted to the retrial of Scott Wallace, the investment banker who previously had been found guilty of killing his wife. Apparently, there was controversy during the first trial when, because of a confusing jury verdict slip, some jury members had voted to convict him when they actually wanted to vote for Al Gore, or something like that, and Wallace was given a new trial.

From the point of view of a television director, the problem with a retrial is that, if done correctly by competent attorneys, there would be few surprises. One of the ways The Practice tries to get around this lack of surprise is to present the episode in a surprising way, as a sort of documentary, à la Citizen Kane. Each of the trial attorneys is filmed during the course of the retrial and interviewed at strategic points in order to provide a running commentary (I think it would be more interesting to do a show from the perspective of the jury - a sort of modern-day Twelve Angry Men, but then I just review these shows, I don't write them).

Although the interviewer gives Bobby Donnell and Richard Bay a couple of opportunities to discuss their respective strategies, neither divulges much or, apparently, has a concrete plan. Donnell points to the fact that Wallace passed a whole bunch of lie detector tests and says that he, Donnell, can handle the prosecution's witnesses. But his strategy boils down to his assertion that "I know he's innocent." Although Bay has comes up with some motivation for Wallace to have murdered his wife, the core of Bay's case is the videotape on which Wallace appears to be confessing to the murder.

I have found that one of the best ways to lose a trial is to force on the jury the conclusions that you draw from the evidence. You may be right, but juries, like most people, hate to be told what to do or what to think. You are much more persuasive if you can present the facts of the case to the jury from your client's perspective and have the jury arrive at your conclusion, all the while thinking they have come to their own conclusion.

In this retrial, there were entirely too many witnesses testifying as to what their own conclusions were of what the evidence showed; there was not nearly enough factual evidence. Bay had two "experts" who were somehow permitted to testify that they believed that Wallace murdered his wife. Another witness was permitted to testify that, in his opinion, Wallace confessed to the murder during his police interrogation. These conclusions, obviously, are for the jury to make and not the subject of witness testimony.

What was missing in the trial were facts. Facts - those pesky little historical things that support or disprove the theories that the prosecution and the defense cook up. You don't have to have gone to law school to see that the prosecution was missing some pretty important facts. For instance, where was the blunt instrument that Wallace supposedly used to knock his wife out before dragging her into the garage to kill her with carbon monoxide poisoning? Where was the evidence of a struggle that the prosecution believes occurred? If the defense is right, and Karen Wallace really did take her own life, whose fingerprints were on the garden hose that was taped to the exhaust pipe? Whose fingerprints were on the tape? If Wallace's fingerprints were on either, then that would be pretty good factual evidence that he, and not his wife, set up the mechanism to kill her. Going through all these facts would be tedious, of course, but that is the difference between real trials and TV trials. Most real trails are not very entertaining.

The one series of new facts that Bay introduces at the retrial concern a motivation for the alleged murder. It seems that Wallace had lost money in the stock market and his job as an investment banker was iffy. He had a $1 million life insurance policy on his wife that he had renewed just one month before her death. Working from these facts, Bay suggests that Wallace killed his wife for the insurance proceeds. Donnell claims to be surprised by this allegation. In real life, he would have been surprised if the prosecution had not brought up these facts. Money, especially $1 million, can be a significant motivation. It is certainly one of the things that the prosecution and defense counsel routinely inquire about in every murder case, and any evidence about the insurance policy would have come up in the opening statements during the first trial and in the prosecution's direct case.

The closings were surprisingly thin, simply restating what little evidence there was without arguing from it (Again, the show puts the closings on in the wrong order. In Massachusetts, the defense goes first and the prosecution last). In the end, the evidence of the insurance policy, the videotape, and the conclusions of the prosecution's witnesses were not enough. The jury finds Wallace not guilty.

The one part of the show that really rang true was at the very end during Judge Hiller's post-trial interview. Having heard the same evidence as the jury, she is asked whether the jury's conclusion was correct. She looks up, slightly surprised at the question, and answers that she has "no idea" if it was right or not. In fact, I believe that good judges condition themselves to think, not as a thirteenth member of the jury, but as the person responsible for ensuring that the trial is fair. Most of them simply don't think in terms of guilt or innocence. Nor should they.

Finally, although I think that the sensationalism in The Practice and other television shows depicting attorneys render them more than slightly unreal, it seems that The Practice has made a determined effort to avoid the puerile storylines of years past and to concentrate on more substantive legal issues. Will this hurt the ratings? Not if they keep the show in the time slot following Who Wants to be a Millionaire.

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