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This week's episode of The Practice asks the perennial question: "does size matter?" The answer? No.

First, we meet Harland Bassett, Esq. Harland is, as Eugene observes, a "nice man" but a horrid lawyer. He has a perfect record as an attorney - he has lost every single case. At Donnell's insistence Eugene becomes Harland's unwilling co-counsel. It seems Harland's luck is about to change.

Their client, Marvin Blailock, is accused of exposing himself in public. Under Eugene's adroit cross-examination, the victim testifies that the man who exposed himself to her had a "sad, pathetic little penis" with no distinguishing physical characteristics. ("Distinguishing physical characteristics?" Of someone's penis? What was that about, I wonder). Because it raises a vital issue of fact, and at Harland's insistence, Judge Hiller permits Marvin to display his member to the members of the jury. No photo would do him justice.

Marvin is huge. The jury gapes appropriately. The victim has the wrong guy. It seems this is a case that even Harland should win - a guaranteed NG (not guilty). Harland gives a very dramatic (though objectionable) closing, exposing for the jurors the fact that his entire self worth depends upon the decision they are about to make. The jury comes come back with a finding of "guilty."

What went wrong? One of the members of the jury -- a plastic surgeon -- decided during deliberations that Blailock's testimony was somewhat inflated. The surgeon noted telltale scarring and convinced the jury members that Marvin's member had benefited from recent surgical enhancement. After the jurors are dismissed he tells all this to Eugene, who immediately moves for a mistrial, correctly pointing out that the jury's deliberation has been tainted by the testimony of the plastic surgeon. The plastic surgeon has, in essence, testified outside the courtroom without an opportunity to have that testimony challenged through cross-examination.

The law is fairly settled that where the jury is exposed to extraneous matters prejudicial to the defendant, the court must grant a new trial. See Commonwealth v. Fidler, 377 Mass. 192 (1979). This most frequently crops up where one juror decides to make like Sherlock Holmes and visit the scene of the crime or accident and report back to his fellow jurors. In this case, it would have been entirely appropriate for Judge Hiller to grant a new trial.

I was betting Blailock would be charged with spoilation of evidence.

Beside getting Marvin off with only community service, Eugene also demonstrated some smart lawyering. Harland -- who thought his ace-in-the-hole "huge penis" defense was so certain -- was willing to ignore the testimony of the victim and the police officer who arrested Marvin, and cross-examine neither. Eugene perfectly illustrated the importance of cross-examination. It has been written (in places other than in this review) that, "cross-examination takes the place in our system which torture occupied in the medieval system of the civilians" and that it is, "the greatest legal engine ever invented for the discovery of truth." Eugene deftly cross-examines the victim to bind her to testimony he will be able to disprove later. He also skillfully cross-examines the arresting officer to suggest a plausible explanation for Marvin's flight at the time of arrest. As a lawyer, I enjoyed watching him work.

However, there were some elements of the story that never would have occurred in a real trial. For instance, a judge would likely not allow a defendant to expose himself to the jury. She would have required such evidence to come in by way of a photograph - as Eugene suggested at the outset. Secondly, where so much depended on Mr. Blailock's size, defense counsel would never have allowed a doctor specializing in such plastic surgery to sit on the jury. That potential juror would have been removed before the jury was impaneled.

The other story in Sunday's episode centers on Raymond Oz (James Whitemore) -- one of the Commonwealth's finest lawyers and Bobby Donnell's mentor and father-figure.

Oz is no longer playing with a full deck. This is made clear in the opening scene when he asks Harland his age, forgetting he had asked Harland that very question thirty seconds earlier. Oz retains Donnell to represent him in an action brought by his wife, who seeks to be appointed his guardian. Oz believes his wife is cheating on him and trying to cheat him out of his money.

Halfway through the show, Oz clubs his wife over the head with one of his many legal trophies, killing her. Out with the probate proceeding, in with the murder trial. Donnell still represents the old man, who is now in jail. Donnell and Gamble agree on a deal whereby Oz would plead guilty on the grounds of temporary insanity and serve a short sentence. But Oz will have none of it. He rejects the deal out of hand. Donnell -- who knows his mentor has periods of confusion -- has him undergo a mental examine to determine if he is competent to stand trial.

Competency to stand trial is defined as whether the defendant has a "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a factual as well as rational understanding of the proceedings against him." Commonwealth v. Hill, 375 Mass. 50 (1978). This is not the same as "competency" in the clinical sense or whether one is capable of managing one's financial or personal affairs.

There is a Catch-22 aspect of a competency exam that the show illustrates to a degree. If Oz is found incompetent to stand trial, the criminal process stops. Oz cannot participate in his trial and will be hospitalized and treated for his mental illness. Only if Oz is found competent to stand trial, i.e., sane, can he enter a plea of not guilty by reason of insanity. How's that for a mind-bender?

Moreover, Oz's continuing insistence that he killed his wife in self-defense is not rational. But it is proof positive that he understands the proceedings and can consult with his lawyer. Go figure. The added dimension of Donnell being Oz's surrogate son adds immeasurably to the complexity of the issue because it most often the aging parent's children who first see them losing their grip on reality.

All in all, a good show.

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