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Two stories in this week's episode; both focused on how it feels to be the victim of a crime.

In the first story line we meet Bobby's cousin, Alan, a dentist who just can't seem to keep his hands (or teeth) off the female patients. (What is this obsession with dentists with fetishes anyway? See review of September 26, 1999). A few days after an office visit, Lucy notices a bite mark on her breast. "Hmmm," she wonders, "where did that come from?" There is some initial silliness involving Lucy and a confrontation with her boyfriend over whether he is responsible for the bite. Finally, by a process of elimination, Lucy determines that Alan must have been the culprit.

Ahah! The dentist did it!

Once accused, Alan acknowledges his fondness for fondling his female patients but contends that he "never hurt anybody" -- presumably because his patients were anesthetized. Bobby correctly determines that this is not going to be a winning defense and helps Alan work out a large financial arrangement with Lucy in order to buy her off and make the case go away.

In another bit of silliness, Ellenor and Eugene (associates at the firm) are representing Lucy (an employee at the firm) in a settlement conference with Bobby (the, um, owner of the firm) and Alan (a client of the firm) on the other side of the table. This situation is what is referred to in every law school ethics class, EVER, as an obvious conflict of interests.

After the settlement is all worked out, Lucy rejects it. She gives her two-week notice and goes off to the District Attorney's office where Helen agrees to prosecute Alan. At the arraignment, Helen offers Alan a deal if he will plead guilty to a reduced charge. He happily accepts. Lucy explains to Bobby that -- more than the money -- it was important to her that there be some formal recognition of what had happened to her.

In the other story, Jimmy Berluti (who greatly endeared himself to me last season when I learned he threw-up before every trial) is appointed to defend Darlene Keating. Darlene shot and killed Justin Fitzpatrick, after he violently raped her. There is little question Darlene could have justifiably killed Fitzpatrick during the rape, in order to protect herself. However, self-defense is not a viable defense here. The killing occurred an hour after the rape, and after Darlene showered and changed clothes. After which she took her handgun and calmly walked over to Fitzpatrick's apartment and killed him.

Darlene is not in the least bit apologetic or regretful. She adamantly refuses to be perceived as a victim and remains defiant and angry. Very angry. Berluti, noting that this is not likely to win her much sympathy with the jury, suggests that she maybe, "cry a little . . . it wouldn't hurt." Darlene refuses this advice -- or just can't summon up such feelings -- and is convicted of second degree murder.

Darlene's trial highlights the complexity of the attorney's role in preparing a witness to testify. During the trial, Darlene testifies initially that the events leading up to the killing were hazy "like a dream" and later on, that the events were very clear in her memory. The Assistant District Attorney jumps on this apparent discrepancy and eventually draws out Darlene's admission that Jimmy told her to cry and also advised that she stood a better chance with the jury if she said her memory was hazy.

I thought this was somewhat unfair to Berluti, so I went back to look at some scenes not included in this episode which addressed this issue of suggestive testimony more appropriately. I obtained a copy of a scene David E. Kelley did not write in which Jimmy and Darlene are sitting in an attorney-client consultation room adjacent to the courtroom preparing for her testimony:

Jimmy: I am putting you on next. We need to discuss your testimony again.

Darlene: I know what happened. It's not going to change no matter how many times we go over it.

Jimmy: Fine. Really. But, do me a favor. Let's go through it anyway.

Darlene: [Looks at him, distrustfully. Nods slowly].

Jimmy: Thanks. The important thing here is for the jury to feel what you were feeling at the time you shot that creep. You understand?

Darlene: [Stares at Jimmy].

Jimmy: Because if, at the time, you didn't know what you were doing, and you couldn't stop yourself, we have a chance with the jury.

Darlene: I knew what I was doing.

Jimmy: You sure?

Darlene: Yeah, I'm sure.

Jimmy: [Stares at Darlene expectantly].

Darlene: What are you saying?

You want me to say I didn't know what I was doing? I knew exactly what I was doing.

Jimmy: Listen to me, Darlene. Sit down and . . . listen to me.

Am I the only person who thinks you might not be guilty? Do you want to go to prison? Is that the only way that you are going to deal with this . . . thing that happened to you? Do you have to show that you were giving it out and not taking it?

Look, I'm not trying to get you to make stuff up. I'm trying to get you to see stuff that's right there in front of you.

You might think you know what you were doing that night. Think that you were really in control. Looking back, I can see how you might think that. How you might want to believe that. But, think about it.

Darlene: I know I was in control.

Jimmy: Tell me. When did you decide to do it?

Darlene: I knew right away. As soon as I saw what he was doing to me, I guess. I knew right then that he was dead. That I was going to end it that night. I had to.

Jimmy: Could you have stopped yourself?

Darlene: I didn't want to. I wanted to kill him.

Jimmy: But could you have? Do you know? Think about that.

Now that is some suggestive preparation. Then, in his actual closing, Jimmy focuses on Darlene's anger and how that anger protected her, prevented her from becoming a victim, and explained the killing. But I think the closing below -- that David E. Kelley did not use, or write -- is preferable since it makes more of the argument that Darlene could not stop herself from doing what she did.

Jimmy: [Addressing jury]. What happened that night?

Darlene was raped by Justin Fitzpatrick. She shot Justin Fitzpatrick.

Those are just the headlines. But what happened?

Why do we do the things we do? Do we ever really know?

Could you say that Darlene rationally weighed the pros and cons of killing Fitzpatrick and voluntarily chose to kill him?

That's not what happened.

Sure, Darlene knew what she was doing. Like she was watching a movie. But she couldn't stop herself.

When she was raped - something broke in her.

The DA says that she had to be in control of what she was doing because she didn't kill until an hour later. A minute. An hour. A day. A lifetime. Time stopped for Darlene. It only started again after she shot him.

The problem of making the actions of a victim REAL to a jury, is that jurors really only like victims who act like proper victims. Whatever that means. When an attorney is faced with the problem of a victim who doesn't act "victimized," the story becomes less compelling, even when it is actually more authentic.

Postscript: Nearly every state, including Massachusetts, has enacted some form of victim rights legislation. Such legislation typically grants the victims of crimes the right to have a role in the prosecution of the perpetrators of crimes against them. Victims of crimes are required to receive respectful and compassionate treatment, they are required to be informed at critical stages of the criminal prosecution, and their courtroom attendance and comments are invited when appropriate. Some critics of these laws are concerned that such laws may influence the outcome of trials by assuming the accused is guilty.

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