Saturday, September 26, 2009

Law & Order “Memo From The Dark Side” Recap & Review

All Photos from NBC
Law & Order’s 20th season started with a whopper of a case – the District Attorney vs. the Federal government and a weasel of a law professor. While the case allowed the story to become a little preachy at times, the message was an important one – do we as a nation want to condone torture? Are there any cases where torture should be allowed? It seems that Jack McCoy says there should be none, but we find Michael Cuter is on the other side of the fence, saying there are times when it is critical. It was interesting to see that despite Cutter’s feelings on the issue, he still found the right words to defend his position and make a convincing argument. Of course, we won’t find out what the jury thought, since they were stopped at the last minute in giving their verdict. I was impressed with how Cutter handled the case.

Especially enjoyable is that they continue to make Jack McCoy an interesting character and it’s great to see that he hasn’t lost his desire to push everyone’s buttons all at once, regardless of any personal cost to him. The look on his face when a previous colleague David seem to accuse Jack of helping the enemy was classic. OK, admit it: How many of you said "Nobody expects the Spanish Inquisition!" when Cutter made the reference? Monty Python fans know what I mean.

A possible glaring error in the episode was when Cutter said he recalled standing in Adam Schiff's office on 9/11. Since Nora Lewin (Dianne Wiest) took over for Schiff in the first episode of season 11 which aired on October 18, 2000, it wasn’t technically Schiff's office.

I was amused that despite the fact that Law & Order SVU got all kinds of new high tech equipment in their media area this season, Lupo and Bernard have to use plain old white board and sticky notes to map out their case. The still get the job done. For some reason, I find this old way more realistic.

S. Epatha Merkerson looks like she has lost weight, and for a moment I wondered if she truly was ill. But, I then thought that her announcement that Anita had cancer could have been done to explain Epatha's slim down. It is bothersome to hear a long time character get such a horrible illness, and I was glad to hear her condition was classified as manageable. Let’s hope it stays that way.

I also enjoyed the slight change of venue and attire, as when Jack was walking up the stairs (for exercise), and seeing a casual Michael Cutter in his comfy T-shirt. Little things like that seem to make the characters seem more like normal people.

A nice start to the season. I certainly hope the fans came out for the show’s new night and time. I have to be honest with you, getting up on Saturday morning to do a recap – the only day that maybe I can sleep in until 5 AM – is brutal. And this one was longer than most, being full of complex details. I apologize in advance for any typos I missed, my eyes are crossing!

Here is the recap:

Greg Tanner (Creighton James) and his sister Megan argue about her leaving. She says she can’t stay; she won’t make her next tuition installment. They enter a building. Later, as they leave, she hails a cab and Greg says he will get her the money, he has something big lined up. But she says not to worry about her, just take care of himself. What looks like a homeless man in military garb approaches Greg and begs for money, and Greg yells for him to beat it. Megan stops and tells Greg everything is going to be alright, and tells him she loves him. She tells him to call her and then gets in the cab and leaves. Greg asks the beggar still standing there if he is a marine, and when he says yes, Greg hands him all his cash. The man thanks him, and says god bless.

Elsewhere, a police officer and Detective Kevin Bernard (Anthony Anderson) walk into the faculty parking garage where a body is laying. The officer tells Bernard that the victim took two bullets in the chest and a student biking in the alley heard the shots at about 21.10 and the patrol arrived quick. It’s the guy who gave the marine all his money. Detective Cyrus Lupo (Jeremy Sisto) is already there, and says there is no wallet or ID but there is a dormitory keycard. Bernard pulls out a wad of money and comments that it looks like the victim was a business major, and Lupo holds up a bag of weed and comments that the victim minored in herbology. When Lupo says the victim looks like the campus dope dealer, Bernard says to “mark his report card a D – for deceased.”

Later, still at the parking garage, a security guy is working to get the identity of the man off the parking garage access card. Lupo asks him for the security video but there is only one camera Bernard and it covers the exit but the rains over the summer knocked it out of commission. Bernard asks for the list of all the faculty who park in the garage, and that is available. The security guy scans the card, and the identity on the card belongs to a Hayley Koslow.

At Hayley’s place, she tells Lupo and Bernard that the man who was using her card was Greg Tanner and he was crashing at her place. She met Greg at the cafeteria, he is not a student, he said he had a sister there. She said he was mature and nice. Lupo notices that Greg’s duffel bag was military issue and asked if Greg was in the service. Hayley said he was, and he had nightmares from it but wouldn’t talk much about it. She knew nothing about the dope. She tells them that last Saturday she did see him outside getting into it with a Hispanic guy but Greg said it was nothing,

Back at the 2-7, Lupo pulls off a photo from the printer and comments that they have a winner, and brings the picture to Bernard. Bernard tells Lupo the ME confirmed there are no stippling or powder burns on Tanner and he was shot from at least three feet away. Lt. Anita Van Buren (S. Epatha Merkerson) enters and tells them that a young woman from Pittsburgh is downstairs and is very upset, and Lupo tells her she is the sister of Greg Tanner. He tells Van Buren that their witness picked out a guy as someone who Tanner was having a beef with - Manny Lopez, who works for the drug crew on 125th. Van Buren wonders if this is a turf dispute. Bernard says that the slugs came back to a .22 but they were fragmented. Even if they do find a weapon, matching ballistics will be “iffy.” They go to talk to Miss Tanner.

Van Buren speaks to Megan Tanner and she is upset. She tells Van Buren that she saw Greg just two days ago, her financial aid didn’t come through and he told her not to leave, that he would help her. She said he lived on campus because of her; after he got out of the service he had nowhere else to go. Their mom has Parkinson’s and lives in Pittsburgh and their dad died when she was 10. Greg joined the marines to be like his dad. They were never told where they sent him, but she and her mother would get emails and a call at Christmas. He showed up at his dorm one day after being discharged, but he didn’t come back the same guy. He was anxious a lot and he needed help but was having problems getting his Army benefits. He was auditing classes on campus, but she hadn’t seen him until the last few weeks. When Bernard says they thought he was dealing drugs. She says he met this girl and she wanted to give him space, and says she lost him. Van Buren seems to be bothered by this and excuses herself from the room, Lupo looking at her, perplexed. Megan says her brother said he would get her money for school, and he was working on something big.

As the detectives watch Van Buren in her office, Bernard says she has seen it all, but now there is one tale of woe and she suddenly goes soft? Lupo says if she hears him talking like that he can be eating through a straw. Bernard says that is the lieutenant he knows. He comments that something big the sister mentioned could have been a drug score and could be how Tanner got himself into a beef with the competition. Lupo adds then they ambushed him in the faculty garage, and Bernard wonders that maybe they followed him there; it could be he was meeting a client, “Professor Pothead.” Bernard picks out a law professor, Kevin Franklin. He is in the garage every day at 1:00 and out by 9:15 – except the day that Tanner is killed. Franklin broke his pattern, left his car in the garage overnight and drives his car out the next day at noon.

At the office of Kevin Franklin (David Alan Basche), at Hudson Law School, he tells the detectives that Tanner looks vaguely familiar and he may have seen him around campus. He says he wasn’t in the garage on Wednesday. He moves to excuse himself to get to his class of law students. When Lupo stops him and says they have a few more questions, Franklin says they will have to call him later. Bernard stops him, telling him not so fast, and asks him about the pot. Franklin thinks they are kidding and says he says he used to work for the Department of Justice. Lupo says they don’t care if he likes the occasional joint, but Franklin says he doesn’t, and if he saw something he knows his obligations. – he wasn’t in the garage. He left his car there because he finished his class at 9 and went to Wordplay on Amsterdam to buy a book, John Rawls “Theory of Justice.” He didn’t buy it, there was a line at cashier so he walked back to the garage but the police had already sealed it off. Just after 9:30. He got a cab to Grand Central and caught the last metro north to Hastings.

At the Wordplay bookstore, Lupo is told that the new Rawls edition came in last week and that the bookstore is dead after dinner. Bernard tells him he ran Franklin through the system and he was arrested in Hastings last year on a CPW.

Elsewhere, an office looks at a file and comments that Franklin got into a fender Bender with Max Epstein, and Epstein claimed Franklin flashed a weapon. Franklin was carrying a piece in his hip holster. Franklin said he had a carry permit but he couldn’t produce it so the officer took him in. But it turns out Franklin did have a permit. A full carry for Westchester and a special permit for New York City, and the charge was dropped. He was carrying a .22 caliber Smith & Wesson. Bernard looks at Lupo and says “Sweeter and sweeter.”

Back at the 2-7, Lupo tells ADA Connie Rubirosa (Alana De La Garza) says Franklin’s alibi doesn’t hold up and he got his timeline wrong. Bernard notes that the garage was sealed off but the first unit wasn’t on the scene until 9:45. Rubirosa asks them to tell her why Franklin killed Greg Tanner. Lupo says money; Tanner told his system he was working on something big and their guess is he tried his hand at blackmail. Franklin is a tenured-track assistant professor of law, if it comes out he was buying pot, he has got a lot to lose – academic post, law license. But Rubirosa says none of this adds up to probable cause for a warrant for his gun. Lupo says they “can always say pretty please with a cherry on top” and grins. Rubirosa tells him to call her when they have some PC. Van Buren tells them they need to tie Franklin to Tanner – calls, meetings, evidence of bad blood. Her phone rings, and she says she has to take it, and she walks away. She turns back and says, “Look, this case won’t clear itself with you guys sitting on your ass.” She walks off and Lupo throws up his hands, seemingly wondering what is up with Van Buren.

Back at Hayley’s, she said she never heard Greg mention Franklin. They find law books there and they belong to Greg. She also points out a folder that is not hers. She leaves for a spin class and leaves them there to continue, Lupo telling her to have fun spinning.

Bernard finds a course syllabus for Franklin’s law classes, plus a recorder. Bernard hits the playback, and they hear Tanner asking Franklin that he needs his help with the V.A., and if he would just go on record, and he can’t do it without him. Franklin tells him to get that thing out of his face, and the recording ends. They assume the bad blood has to do with the Veterans Administration, since Tanner’s sister said he was having trouble getting benefits.

At the Linden V.A. Hospital, they are told that Sergeant Tanner received counseling for 30 days, and was discharged and his temporary benefits lapsed. The doctor can’t get into the reasons for his counseling. But Lupo asks for the type of discharge as that is not classified. She tells them he received a 513 discharge – separation from service due to a pre-existing personality disorder. Lupo says that means the military is not on the hook for his long term care. Bernard says the guy “humps it for his country” for 8 years and comes home and then Uncle Sam kicks him to the curb, and Lupo asks if that seems fair. The doctor says no, not for a soldier who acquired post traumatic stress disorder from doing guard duty at Abu Ghraib and that Tanner said what he saw kept him up nights.

Back at the 2-7 while they look over Tanner’s papers, they suspect he was preparing a lawsuit to have his benefits reinstated and he wanted Franklin to represent him. They hear Van Buren calling out for everyone’s attention, and she says:

“Listen, last week I was diagnosed with cancer. It’s manageable but I have to start treatment immediately. I’m telling you this because I’ll be coming and going more than usual and I don’t want any tongues wagging. Oh and before I forget, the Chief of Ds is coming down hard on the fives, or should I say the lack of them. You’re all big boys and girls so get them done on time.”

She turns and walks off, but Lupo calls out to her. They tell her it looks like Tanner was after Franklin to sue the government over his veteran’s benefits, except Franklin is a constitutional scholar and not a benefits expert. She tells them to talk to some of Franklin’s colleagues and see what they know. She turns to walk off, and Bernard, calls her back, and says “Sorry.” She says, “Yeah” and walks into her office.

At the classroom of Michael Gendel, he says Franklin never mention Tanner and he doubts that he would have anything to do with a drug dealer as he’s wound tighter than a Swiss watch. He is very competitive and they are both up for tenure but he doesn’t have Franklin’s fancy government pedigree and he is very well connected. He carries a handgun because of the work he did for the DOJ, and all he can tell them is that a number of Bush administration documents have recently be declassified, including a few memos Franklin wrote – but they didn’t hear that from him.

In the library, the detectives go through piles of declassified documents. Lupo notes they are all about handling terror suspects. Lupo points one out that says the President can send the Army into American neighborhoods to make arrests. Bernard picks up one the Franklin wrote, covering the “legal standards governing the detention and interrogation of unlawful enemy combatants;” the entire playbook for Gitmo and Abu Ghraib. Lupo says it’s the playbook that set the working conditions for guards like Tanner – the conditions that caused his post traumatic stress. Bernard thinks Tanner might have seen it that way. Lupo thinks he blamed Franklin. He said Franklin owed him, maybe this was the payday Tanner was talking about – money from Franklin for his pain and suffering. They think this is the bad blood, and gives them the probable cause for a search.

Lupo and Bernard head to the DA’s office for the warrant but when the arrive Rubirosa tells them that Franklin is already there. ADA Michael Cutter (Linus Roache) tells them to come in, that Franklin has confessed to the shooting of Greg Tanner. .. and he even brought he gun. Franklin was there with his attorney James Granick (Ned Eisenberg) who tells them Franklin was being stalked by a lunatic and was accosted in a stairwell. He will be arguing self defense and Tanner adds for himself and his country.

Franklin’s lawyer Granick is surprised they are expecting him to take a plea and says they are there as a courtesy to give them a chance to drop the charge before they publicly embarrass themselves. Rubirosa is incredulous, saying Franklin shot an unarmed war veteran from 3 feet away and they are supposed to be embarrassed? Granick says he shot a trained killer who blamed him for his mental problems, demanded money, and threatened him when he said no. Rubirosa says this is a perfect case of self defense, except for the running away, the lying. Cutter adds all of which evinces a consciousness of guilt. Cutter says he can plead to manslaughter one or tomorrow a grand jury will hear all about his deceptions. But Franklin came prepared, and hands them a writ of prohibition to exclude all the statements Franklin made to the police on the grounds that their interview with him was custodial and he should have been mirandized.

Later, in McCoy’s office while DA Jack Mc Coy (Sam Waterston) looks at the paperwork, Rubirosa says the judge threw it all out – the phony alibi, his claims of not knowing Tanner. Cutter says he can count on the fingers of one hand the times he’s seen a writ used to keep evidence out of the grand jury. McCoy says not just any writ, one that that Franklin dashed off during plea conference, complete with citations. He asks Cutter if they have anything other than reasons of self defense, and Cutter says nothing, the only one who would know is Tanner, “and, well, he’s not talking.” Someone brings a document in to Rubirosa; it’s a motion from Franklin, who is asserting his right to address the grand jury. Cutter says “Sure! First get rid of as many inconvenient facts as possible, and then spin what’s left into a self serving tale.” Rubirosa says it is the law abiding professor against the deranged drug dealer. McCoy tells them to “spin it the other way. Make Greg Tanner as cuddly as a week-old puppy.”

In the grand jury, Megan Tanner testified saying Greg was smart and people liked him. She says that when he was in the war, something in him broke and he suffered from PTSD. He saw horrible things. He had nightmares and could not keep a job. Franklin testifies that Tanner wanted help to sue over having his benefits reinstated and thought since Franklin worked for the Bush administration he had some expertise. Franklin said he wrote advisory memos governing the manner in which the terrorists were held. Because Tanner guarded those detainees, Tanner thought he had insight in to the conditions that caused PTSD, but he told him he needed someone who specialize in health care. He claims Tanner confronted him a week later and demanded money, and he said he was responsible for his mental problems and Tanner would not let him leave. When Cutter asked if Tanner actually threatened to kill him, and Franklin says he was in fear for his life, Tanner kept saying “you’re not leaving” and he shot him when Tanner moved in. Franklin says he wishes he had the presence of mind to stay calm but he was in shock. When Cutter mentions it took Franklin 4 days to calm himself and turn himself in to the police, Franklin says he was in contact with the police before the formality of his surrender. Cutter asks him to describe the contacts, but Franklin says he is barred from doing so because of a judicial writ preventing him from doing so because of the misbehavior of the detectives.

Outside the grand jury room, Cutter, pacing, says Franklin cooperated from the get-go, it was the police who misbehaved. Cutter thinks he let himself get bushwhacked. Rubirosa says they got bushwhacked twice. Tanner’s sister told the police that he never talked to her about his service in Iraq, but she testified that he witnessed interrogations. Cutter said she might have gotten that from news reports. But Rubirosa said she said he saw people hanged in a shower room and that wasn't in the news. Meanwhile, the grand jury verdict is handed to Cutter and it is a no bill. Rubirosa says their next stop is Megan Tanner.

Megan says Greg never said anything to her about the shower room incident, but that he made a video diary and she saw in on the computer after he died. Later, in McCoy’s office, they play this video back where Greg outlines how badly they treated a detainees, and one ended up dead. He said the rules were wrong, they had to live by them and they messed them up. He say he has to get right with this, he didn’t join the service to murder people. Mc Coy asks if they can confirm the story, and Rubirosa said there was a death in 2003 at Abu Ghraib that fit the description. Cutter said he talked about other interrogations at other places, and Rubirosa wonders if Franklin shot Tanner to protect that information and that Tanner was going to implicate him in a death by torture. Cutter says Franklin was bucking for tenure and could have shot Tanner in a panic. But McCoy tells him to forget it, he had his bite at the grand jury. This upsets Cutter, who says Franklin is getting away with killing Tanner. McCoy comments about the memo Franklin wrote for the DOJ that laid out the legal architecture permitting the abuse of prisoners, which led directly to that death in Iraq. He thinks Cutter could argue that the memo is an element in a conspiracy to commit assault and depraved indifference murder. Cutter replies that someone could argue it if they had jurisdiction. McCoy asks Cutter if he looked at the time stamp on a document, and hands it to Cutter. Cutter reads back the date, April 10, 2003, and the address of 1 St. Andrews Plaza. Rubirosa questions that Franklin was working at the US attorney’s office downtown when he wrote it? McCoy comments it was right under their noses, and it is a jurisdictional nexus and they need to prosecute him. He adds the already have the testimony of one of their co-conspirators. But Cutter is incredulous, asking McCoy if he wants to prosecute a member of the Bush administration for assaulting suspected terrorists? But McCoy says the word is “torturing, and yes it’s about time somebody did.” He tells Rubirosa to draw up a bill of indictment against Franklin, and she says, “Gladly. ” She races out as Cutter looks on in disbelief. He stares back at McCoy, and McCoy glares right back at him.

Later, they meet with a judge who tells Granick that the people have met the jurisdictional requirement and she denies the mortion. He argues that a conspiracy charge requires agreement between conspirators and there was no agreement between Tanner and Franklin. Cutter argues it was relayed by intermediaries. Franklin pipes up and said they haven’t connected the dots and says those intermediaries should be named in the indictment as co-conspirators or the charge is legally insufficient.

Back in McCoy’s’ office, Cutter says Franklin is daring them to indict the entire chain of command. McCoy asks him if he read Franklin’s memo, and Cutter says not cover to cover. McCoy tells him to read Franklins’ advice to anyone charged with torture, and it seems clear that he is telling the interrogators how to circumvent the law. McCoy says, “Just remember kids, if you’re going to torture, read a book first. They want co-conspirators, I’ll give them co conspirators.” He writes feverishly.

Later, the judge reads the paperwork to indict Franklin which connects the joint chiefs of staff, the secretary of defense, Vice President Cheney, and adds “In for a penny, in for a pound, Mr. Cutter.’ Cutter says the indictments are being served as they speak and Franklin can “consider the dots connected.” Franklin and Granick are not happy, saying that McCoy is politicizing the prosecution. Cutter says if he is afraid the trial may embarrass his former colleague he can take a plea. The judge says she will see them all at trial. Rubirosa thinks this is good, but Cutter warns that the real hailstorm will come when the indictments land on the co-conspirator’s desks.

In the DA’s office interview room a government attorney Stron (?), with a group of attorneys accompanying her, says her clients sent her there in hopes they could talk some sense into McCoy. She says he is going to spark a constitutional crisis and is that the validation that he wants for his career? He tells her to let him worry about his career. He adds, “And now, unless you are all here to talk about a plea, there’s the door” and he points to it and stands up. She says, “A plea? You actually believe that you, a county DA, can prosecute a former Vice President, cabinet members, for their conduct of a war on foreign soil?” Jack replies that he prosecuted a Chilean colonel for the murder of a US citizen in Santiago, so government officials who torture prisoners on American military bases, “…sure, why not.” She tells him this is why not, and she and the other men with her begin to stack huge books on the table – a lot of them. McCoy sits back in his chair. She says this is just the beginning and they will keep churning them out until his office is drowning in motions, and she gets up to leave.

Later, Cutter goes through some of the books and complains about the volume of detail to get through. McCoy says that Stron doesn’t represent everybody, and they should severe the trials and go for Franklin first. If they convict him, then they can move up the chain of command, He tells Rubirosa to assemble a team to get them working on Stron’s motions. When she leaves, Cutter tells McCoy that they may have bit off more that the could chew and is not convinced of their legal standing. McCoy knows, he says Cutter values legalities over ethics, but sometimes doing what’s ethical is more important Cutter gets a little miffed and says that McCoy can insult him all he wants but he thinks the ethical thing to do here is to save American lives. He gets passionate and says we are at war with people who want to kill us for who we are and sees no problem using force to extract the information we need to protect ourselves, then maybe this is the right thing to do. McCoy says quietly, “I see. Maybe I should find somebody else to prosecute Franklin.” Cutter replies, “Oh no, you can count on my obsession with legalities. If there is a way to prove that Franklin broke the law, I’m your man.”

In Supreme Court, an expert is on the stand tanking about the techniques sanctioned by Franklin’s memo – stress positions, waterboarding. Cutter asks who besides the military has used this, he says the Spanish Inquisition and after the Second World War, the Americans convicted Japanese officers of war crimes for waterboarding our POWs. He terrifies that these techniques do not work and that they work against us, saying it is hypocritical to defend our values with torture

Under cross, Granick gives him a hypothetical situation, but he continues to insist that torture does not work, saying a man in severe pain and mental anguish will say anything to make it stop. Granick says he is not advocating torture, they are talking hard techniques. He tells Granick that he knows what he is talking about and he doesn’t need a memo to tell him what torture is. This response makes Cutter happy.

In the court hall, someone calls out McCoy’s name and races up to him. McCoy recognizes him, calling him David (Jordan Gelber). While they walk to the stairs McCoy says he needs the exercise, and says to an overweight David, “So do you, kid.” They ascend the stairway and it seems David works for the Attorney General. They sent him to talk to McCoy about the Franklin case and to call it off, but McCoy says the jury is already impaneled and jeopardy is attached. But David says they don’t care. McCoy doesn’t get it as the new administration doesn’t have a dog in this fight. But David says they can’t let state prosecutors try to hold Federal officials accountable for a war, it sets bad present. The AG is naming a special prosecutor to investigate torture claims, but McCoy says they are going after the small fry, and asks what about the policy makers and the “deciders.” McCoy says they get a free pass because if they go after the previous administration’s dirty laundry the next will go after yours, that’s the precedent they don’t want to set. When David tells him it is just politics, McCoy says, “I don’t know what you’re learning over there David but you’ve forgotten everything you’ve learned here. Tell the Attorney General no deal!”

Back at Supreme Court, Franklin is back on the stand. He says their success is based on their ability to extract information. He was asked by the government for his input and he gave them his findings. Under cross by Cutter, who says that Franklin's position is that anything goes as long as the president sanctions it. Franklin says the president can’t break the law, but Cutter says there doesn't seem to be a low that binds the president on the war on terror. Franklin says the Geneva and the Haig Conventions are not applicable because terrorist detainees are illegal combatants. He also says the Fifth Amendment is also not applicable to alien combatants held abroad. The 8th amendment bad on cruel and usual punishment is not applicable as harsh interrogations are not punishment. Cutter reiterates that in war, the president is bound by no laws and Franklin says yes, in war. Cutter says this means that according to Franklin there is no law to stop the president from any method of torture, and Franklin responds that it depends on why the president thinks he needs to do that. Cutter says his memo justifies the actions because the detainees are not regular soldiers in a national army as we understand it, and Franklin says that is correct, enemy combatants are not entitled to the usual protections. Cutter asks if they should be protected by our own sense of decency? Franklin says that was not the task he was given, his memo addressed legal not ethical standards. When Cutter brings out a section in his memo where Franklin cited historical precedent, Franklin moves to give an answer but Cutter cuts him off, and shows him photos of past historical tortures caught on film, and challenged Franklin on it. He gets Franklin to admit that Franklin would have defended harsh action by the British to American solders during the Revolutionary war. Franklin says from a legal standpoint, yes, which gets a passionate reply from Cutter, “What is it about this country that you don’t get?” He immediately withdraws the question.

Jack walks into Cutter’s office. Cutter, in a T-shirt. Comments that a state senator called for the removal of McCoy as DA. McCoy shrugs his shoulders, indifferent. Cutter brings up 9/11 and says that 8 years ago they could see the towers burn from Adam’s window, and part of him doesn’t care what they do to the detainees, he doesn’t want to know – just protect us. McCoy says the problem is now they do know, and Cutter says he is not sure that makes a difference. They hear a knock on the door – McCoy says they are wanted in Federal Court tomorrow.

In Federal Court, David is arguing his case that the AG wants to issue an order to stay the prosecution of Franklin and the other defendants. McCoy says they can’t just stop the trial. David says under the supremacy clause of the constitution, actions taken by Federal officials in pursuits of foreign policy are not grist for state prosecution. McCoy argues that if those actions are illegal, as torture clearly is, there is no overriding federal interest in shielding those who enabled such actions. The judge stops the arguments, and tells them she will take the motion under advisement and issue her ruling by the end of the day; meanwhile the trial can go on. As the attorneys move to leave, McCoy glares at David and then walks to him, saying

McCoy: I never expected this of you
David: You’re way off the reservation Jack
McCoy: Damn it David, I’m trying to SAVE the reservation.
David: We’re looking forward, not backward. We’re not looking to give aid and comfort to the enemy.
McCoy, angry: What are you accusing me of? (David gives him a sheepish look and walks off, and Cutter and Rubirosa look on in disbelief.)

Back in Supreme Court, the prosecution closes, saying his client never tortured anyone, all he did was provide a legal opinion, He says in this country you have to actually commit a crime to be convicted of obe.

But Cutter counters that Franklin’s document is no simple legal opinion, it is an instruction on how to commit a crime. It creates a special class of prisoners who are fair game for any suffering we want to subject them to. He calls it the “legal grease” that enabled the conspirators to commit acts that are immoral and illegal. He says Franklins’ says was just following orders, but Cutter says he was employed as the last defense to injustice. He adds Franklin used it as a sword to injure them. He says that 5 says after 9/11 Cuter says that VP Cheney said we would have to work the dark side to fight terrorists, but no one imagined that meant to concede control to our own dark side. Cutter says Franklin’s tactics draw from the worst of our nature. Cutter assures them that it is not disloyal to hold our officials to the highest standard of conduct and they should decide what they want done in their name.

Later, back in Supreme Court, the verdict arrives, and as they are readying to read it, a federal marshal arrives with an order from the district court. The judge reads it, and says that the federal court from the southern district has issued an order preempting the prosecution. She says the trial is over, and when Cutter tells he the jury had a verdict, she says there is no verdict until it is entered into the record, and that it is over. As everyone clears out, Rubirosa says she will start checking the case law. But McCoy says she won’t find anything, there is no recourse. He grins. Cutter says the people want McCoy out, and they will use this to hammer him. McCoy says, smiling, that at the end of the day, he hopes to give them more reason for them to be mad at him. He and Cutter leave the courtroom as we fade to black.

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John K. said...

Recap looks spiffy, I must say. The only transcript I would need would be the Cutter/Gardner cross-examination (the expert on the waterboarding). If you can't, that's still fine, as you got the gist anyway.

Certain exchanges, I can just go with your general synopsis, and others, I need specific dialogue to split a few differences.

I hear you on the new slot and how it affects sleep time in the recapping process.

The season premiere/finale are usually the most crammed, so you should be able to relax for the next few episodes.

samfan said...


Lisa R. said...

Great episode and excellent recap! I too hope the fans will find the shows on'd be a shame with the mothership's brilliant writing last season (and hopefully this one)that no watches it in this death slot...

All Things Law and Order said...

John, I should be able to get you that info on Sunday morning. I got absolutely buried in emails today and still trying to dig out!

Anonymous said...

I have a hard time finding your contact info or your twitter name, so.. if you use twitter, send an @ to asinnema :) I saw a comment of yours on something I can perhaps help you with.

John K. said...

Perfect, and thank you very much. And take your time, as I've been busy, myself.

That's the only transcript I'd want in the episode, since you basically covered the rest for me. Thanks as always.

All Things Law and Order said...

Anon - if you're looking for me, my twitter link is on every page on the right side pane;, but here is the direct link:

If you are looking for my email, it is in the "about me" section.

All Things Law and Order said...

John, here is the dialog you wanted:

Witness: It’s called a Palestinian hanging. It’s how the North Vietnamese tortured Senator John McCain when he was a POW. It’s one of the stress positions sanctioned by Mr. Franklin’s memo.

Cutter: What other harsh techniques are sanctioned by Mr. Franklin’s memo?

Witness: The most well known is waterboarding, where a detainee is held down, a cloth is placed over his face, and water is poured over his mouth and nose to simulate drowning.

Cutter: And who if anyone besides the US military has used this interrogation technique?

Witness: The Spanish Inquisition, and after the Second World War, we convicted Japanese officers of war crimes for waterboarding our POWs.

Cutter: Now you told us that during your career in the military you participated in over a thousand interrogations. Did you every use any of these harsh techniques?

Witness: No sir, we took down terror networks with tools like respect, rapport, cunning and deception.

Cutter: Not the techniques in this memo.

Witness: Besides the fact I have a moral problem with torture, it doesn’t work, sir. In fact it works against us. It’s hypocritical to defend our values with torture, and hypocrisy is the best recruiting tool you can give to the terrorists.

Cutter: Thank you.

John K. said...

You even include the John McCain reference, which I actually forgot about. Thank you ever so. By the way, nice profile on the TV Guide issue.

Oh, this may amuse people, as we now official lulz over the episode. Civil liberity activists are praising the episode. How about that?

John K. said...

Also, your Spanish Inquisition reference amused me. Someone should make a fan video about that.

Katie and Da Katz said...

Well if I miss an episode, i know where to go to get a recap now!


What a complicated story... somehow reminds me of the episode where Fred Thompson's character says he's pro-life, but he's even more pro justice.

No matter what the opinion is on getting the truth out of terrorist prisoners, it doesn't justify homicide or abusing the law.

purple.shirt09 said...

This is definitely a long and detailed review. Which is always a good thing since you have less of a chance missing details. I loved this episode hope all are as good. There was a lot of detailed put into this one episode. Anyways, nice review.

Anonymous said...

Can you help me with the meaning of a phrase in the dialog of this episode?
“Listen, last week I was diagnosed with cancer. It’s manageable but I have to start treatment immediately. I’m telling you this because I’ll be coming and going more than usual and I don’t want any tongues wagging. Oh and before I forget, the Chief of Ds is coming down hard on the fives, or should I say the lack of them. You’re all big boys and girls so get them done on time.”

In this speech, what does 'the fives' mean?



Adriano_CSI said...

She says the Chief of Ds is coming down hard on the fives. what does on the fives mean

All Things Law and Order said...

I think she is referring to the DD5, which is the term they use for one of the follow up police reports.

Adriano_CSI said...

McCoy: I never expected this of you
David: You’re way off the reservation Jack
McCoy: Damn it David, I’m trying to SAVE the reservation

what does resevation in this conetext?

All Things Law and Order said...

They use the phrase "going off the reservation" a lot on L&O to indicate when someone is going off on something that is far from the path or course they should be taking, or doing something against orders.

In this case, the attorney was trying to tell Jack that he was way off base by trying to prosecute the guy for torture, by McCoy is saying that he is trying to stay true to the tenets of the country, in essense, trying to save them.

Adriano_CSI said...

"they could see the towers burn from Adam’s window," WHo is Adam in this context?

All Things Law and Order said...

Adriano_CSI - he was referring to Adam Schiff, who was the DA in the earlier episodes (played by Steven Hill).

Adriano_CSI said...

He calls it the “legal grease” that enabled the conspirators." what does Legal grease mean?

All Things Law and Order said...

Adriano_csi, to "grease" something means to make it work better or more smoothly. When he refers to legal grease, he saying that Franklin's document would make it legally easy for someone to commit acts that are immoral.

nygma619 said...

I hated this episode when they did it in SVU's episode Harm, and I hated it here.

I couldn't find the words to express my hatred for this one, until I found THIS article

I agree with everything here, except maybe the possibility of L & O jumping the shark.