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The Confession

While confession may be good for the soul, it gets in the way of a legal defense.

In this week's episode of The Practice, Eddie Larson has dragged Constance Read, a young mother, to her death in the course of carjacking her. Larson is arrested but, conveniently (and somewhat unbelievably) for the plot line, there is no physical evidence or witnesses connecting him to the crime. Yet Helen Gamble refuses to give up so easily. In the course of interrogating Larson, Gamble lies to him to get him to confess to the carjacking. She tells him that President Bush is pressing the death penalty for crimes of this nature, that the Massachusetts Legislature is passing a death penalty bill within the next three weeks, that Governor Celluci is a personal friend of the victim's husband, and that Santa Claus has decided to put Larson's name on the "Bad Children" list. OK, I made up the part about Santa Claus, but you get the point.

In the middle of the interrogation, Jimmy Berluti shows up at the police station and tells Gamble that he represents Larson. Gamble, who knows that she has started lying just can't stop herself, lies to Berluti and tells him that Larson is not in the police station, and promises not to interrogate him any further. Having dispatched Berluti, Gamble returns to the interrogation and weasles a confession out of Larson.

When Berluti learns of the confession, and the fact that Gamble has lied to him, he goes berserk. He argues a motion to suppress the confession before Judge Kittleson, on the grounds that the prosecutor violated the defendant's right to counsel by refusing to allow Berluti to meet with Larson. Judge Kittleson takes the matter under advisement (i.e., she wants to think about it a little while before deciding). This is the same Judge Kittleson who was sleeping with Berluti a season or so ago. Because of that former relationship, Kittleson never would be permitted to hear any matter in which Berluti was the attorney-of-record - but I digress.

While waiting for the decision, Gamble and Richard Bay have lunch. Gamble asks Richard Bay for The Speech. The Speech, as fans of the show know, is an inspirational sermon - often delivered over a meal -- extolling the virtues of the prosecutor. I thought that last year's Speech was better than The Speech that Bay gave this week, but they were pretty similar.

After lunch, Judge Kittleson agrees with Berluti and suppresses the confession. Since there is no other evidence tying Larson to the carjacking, the charges are dismissed. Of course, his troubles are not over because the episode is only half over. A la the Rodney King case, Larson is arrested again, this time by the FBI, and brought into federal court. In the Rodney King matter, after the police officers who beat King were acquitted in the state court trial, United States Department of Justice filed federal civil rights charges against four of the officers and prosecuted them in federal court. Their second prosecution raised double jeopardy concerns -the Double Jeopardy Clause of the Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." However, the Supreme Court has repeatedly held that criminal actions brought by different sovereigns are not the "same offense," and therefore are not prohibited by the Double Jeopardy Clause. The federal government and the state government are different sovereigns. The police officers in the Rodney King case were accused of violating King's federal civil rights. Larson, however, has not committed any federal offense. Murder, which is what the FBI agents announce is the charge against Larson, is a state law violation. Therefore, there is no reason for Larson to have been hauled into federal court.

One other small nit. The image used in The Practice to represent the federal court - now the Joseph Moakley Federal Courthouse -- is not the court at all, but a picture of the First Church of Christ, Scientist (the "Mother Church"). The Joseph Moakley Federal Courthouse is a new, very expensive, beautiful building, and the producers of The Practice should use its image instead.

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Now in federal court, Berluti and Young again move to suppress Larson's confession, this time on the grounds that the prosecution unlawfully coerced the confession by falsely telling Larson he was subject to the death penalty - which does not exist in Massachusetts. Prior to the hearing, Young requests "testimonial immunity" for Larson, so that nothing Larson says at the hearing can be used against him at trial. As he was only going to testify about what Gamble told him during the interrogation, and describe his state of mind at the time, testimonial immunity seemed unnecessary. The judge, of course, grants it. The judge also suggests that the parties discuss a possible plea bargain - a sensible suggestion, given that there was no federal crime alleged and the defendant had only admitted to a carjacking. But the parties, of course, don't discuss it.

Larson and Gamble testify at the hearing. Oddly, both seem to give testimony that Larson is as dumb as a stump and, oddly still, this is the argument that carries the day. The judge throws out the confession, and the case is dismissed - again. Since we, the audience, are not as dumb, I wish the show would raise itself up a notch or two in the future. It has such great potential.

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