In the pre-dawn hours, Briscoe talks to a firefighter at the scene of a fire. The firefighter says that the fire was reported at about 2 in the morning, and the whole place (a shed on a Christmas tree lot) was ablaze by the time the firemen arrived. The fire was definitely arson; matches and a gasoline can were found. An officer, walking with them, says that witnesses saw a suspect fleeing the scene and gave a description. Briscoe comes across the corpse of a man who was killed in the fire.
"Louis Johnson. Medium rare."
Johnson was killed by the fumes from the fire. He'd locked the door from the inside and so was presumably spending the night in the building. He'd had some vandalism the preceding week; the local mob outfit was trying to get protection money from Johnson. Nobody in the area, Johnson included, wanted to talk to the police about it. Briscoe notes that this didn't help Johnson any. Curtis asks the officer for the names of the people in the outfit.
In interrogation, Briscoe and Curtis tell Danny Trumbello that eyewitnesses place him at the lot just after the fire. Trumbello says that he was buying a Christmas tree, but Curtis points out that the lot isn't open at 2 in the morning.
"You're cooked, Danny."
Curtis says that Trumbello's fingerprints were found on the box of matches. Briscoe says that Trumbello is the dumbest arsonist he's ever known, and urges him to confess. Trumbello protests that he didn't know that Johnson was there, and Briscoe responds that Johnson, unfortunately, had been thrown out of his house by his wife that night. Trumbello insists that the fire was just to hurt Johnson's finances, not kill him. He offers to turn in the person who paid him, but the police already found him too. Curtis wants to know who runs the local mob outfit. Trumbello says that he only knows the person who paid him and doesn't know who's in charge. Briscoe tells him that he'll be in for a long jail term, then. Trumbello then offers to turn in the person who robbed a deli in the previous year, but someone already turned that person in too. As Briscoe goes to leave, Trumbello stops him.
"I know the guy that really did that Cookie Costello stabbing."
He exposits that Costello was brutally stabbed thirty years ago. The whole neighborhood watched from their windows, but no one did anything or called the cops. Briscoe says that a Sal Munoz was already convicted of that crime. Trumbello says that Munoz didn't do it, and he wants a prosecutor to come in and make a deal with him. Curtis says that they need evidence first. Trumbello responds that a man, who he calls Bobby, got drunk and told him that he'd stabbed Costello. In particular, he'd said that he'd stabbed her in such a way as to render her infertile. Briscoe frowns, and Trumbello reiterates that he wants someone from the District Attorney's office to talk to him about making a deal.
Briscoe and Curtis go into the vestibule, where Van Buren is waiting. Briscoe says that his first partner worked on the Costello case. The details of Costello's injuries were kept private, so the public wouldn't have known where Costello was stabbed. Curtis remembers the case, and Van Buren adds that Costello was stabbed fourteen times and raped while her neighbors ignored the scene. Curtis asks, rhetorically, if the people didn't have phones, and Briscoe says that the police were called about forty-five minutes later.
"Should've heard the excuses. Everybody assumed someone else called it in."
Curtis and Van Buren note that, if Trumbello is telling the truth, Munoz has been wrongfully imprisoned for thirty years, and the real rapist is still walking around free.
Schiff, in his office, muses how he prosecuted Munoz thirty years ago, and Costello still sends him Christmas cards. He asks who Trumbello said really attacked Costello, and McCo says that the new suspect is named Bobby Farina. Farina has been in and out of jail all his life and is a habitual deadbeat. Kincaid reiterates that the police never released the specifics of Costello's injuries. Schiff protests that Munoz confessed, but McCoy points out that the confession may have been coerced. McCoy adds that Costello never made a positive identification, and argues that they should at least talk to her. Schiff refuses, saying that all of Costello's friends and neighbors watched her be raped and stabbed without doing anything. He doesn't think that Costello has recovered yet. Kincaid points out that Munoz is serving multiple twenty-five year sentences. They have an obligation, she insists, to find out if he's actually guilty. Schiff consents to having the police talk to Farina.
The detectives talk to Farina in a slaughterhouse.
"Half a century and I'm still pushing carcasses for a living."
"I know how you feel, Bobby. Half a century and I'm still talking to scum like you."
—Bobby Farina and Lennie Briscoe
Farina insists that he's abandoned crime, but Briscoe says that they already know that Farina was sentenced to four years in jail for assaulting his girlfriend, and is currently out on parole. Farina laughs this off. Briscoe asks if he attacked Cookie Costello, but Farina says he hasn't heard of her. Curtis responds that the attack was all over the newspapers when the attack happened (in 1965). Farina's rebuttal is that he was in jail that year because he (Farina) had assaulted a prostitute, but Briscoe says that they checked, and he wasn't yet in jail at the time of Costello's assault. Farina then says that he was probably in New Jersey when Costello was attacked, as he collected for some bookies in that area. Briscoe asks how he could have known (and told Trumbello) about where Costello was stabbed unless he'd done it. Farina, looking resigned, says that he heard the story from a lawyer named Nick Taradash. Taradash had been Farina's lawyer, and, according to Farina, once told him all about the Costello case, including where Costello had been stabbed.
The detectives go to Taradash's old office to find a woman named Teri Marks. She says that she and Taradash used to share office space until Taradash died of a stroke; after that, she took it over. Taradash made Marks his executor before he died, which meant that she had to deal with his files. She's now regretting this, as his files were a complete mess. The detectives bring up Farina, describing him as a leg-breaker and a dirtbag.
"Don't know the name, but the description fits Nick's clientele."
Marks says that Taradash represented all the neighborhood criminals. Briscoe asks if Marks has that position now, and Marks says that she's not quite so well known but is starting to make a name for herself in her community. She finds Farina's file, notes that he owed Taradash money, and asks what Farina had done. Curtis says that Farina is saying that Taradash told him details about the attack on Costello that were withheld from the press. Marks notes that Taradash was appointed by a court to be Munoz's lawyer, so this is possible. He got good press from the case, but because Munoz confessed, Taradash couldn't do much for Munoz, and Munoz was convicted. Taradash tried to have Munoz found 'not guilty by reason of mental defect,' but this failed.
Outside, Briscoe says that an insanity defense is the last resort for most lawyers, but Taradash started with it. Curtis suggests that maybe Taradash wasn't trying very hard since he probably knew Costello from the neighborhood.
"Let me propose a less noble reason."
Briscoe says that Taradash mostly represented the local criminals, and if one of them attacked Costello, Taradash might have wanted to protect him and to tank the case against Munoz, who wasn't from the neighborhood and probably wouldn't have rehired Taradash if he was arrested again. The two decide to see if Farina's name came up in the initial investigation.
Retired Detective Landis knows of Farina, but didn't investigate him for the Costello attack. He says that Munoz followed Costello home just because she was wearing a white dress.
"Figured she was 'canned goods.'"
Curtis says that Costello wasn't reported to be coming home from work when attacked, but rather, she was supposedly returning from the movies. Landis says that Costello was working at the Franklin Pub, which technically violated her probation from an earlier gambling conviction, so out of respect for Costello, that fact was hushed up.
"What else didn't make it into your report?"
Landis protests that none of the omissions were relevant to the case. Briscoe says that Costello gambled and Farina collected for gamblers.
"There's gambling all over the place except in your report."
Landis argues that Munoz confessed to that and two other rapes, but Briscoe asks if Munoz went to the 'West End Grill' first. Landis insists that Munoz was guilty.
"So the Hell with you."
He leaves. Curtis asks what the 'West End Grill' is. Briscoe says that, in the sixties, the 'West End Grill' was an informal name for a set of docks where police used to take suspects, beat them, and throw them in the ocean.
"Or so I heard."
They leave to talk to Costello.
At home with her father, Costello says that she remembers nothing after getting out of her car. She doesn't mind, though, saying that her forgetfulness is God's way of helping her heal. Curtis compliments her outlook, and she asks why they're asking about the case. The two detectives say that they found information on Farina, so Costello asks her father who he is. Mr. Costello says that Farina used to steal candy from him. Briscoe says that Farina became a bagman, so Mr. Costello asks what Farina has to do with anything, since Munoz was the one that attacked Costello. Briscoe brings up Costello's gambling arrest, angering Mr. Costello. He tells his daughter not to talk to the police, then gets up and leaves the room as Costello protests that she can handle this. She tells the police that she was young and liked the excitement of gambling.
"I used to have a crush on Sandy Koufax. I used to bet the Dodgers when he pitched."
She eventually owed more money than she could pay, so she worked off the debt by taking bets at a bar. She was caught. However, she denies having trouble with Farina, and is offended when Curtis asks her about it.
"You think I brought this on myself?"
Mr. Costello comes back in with the bloodstained dress that Costello was wearing when she was attacked.
"Every time that animal comes up for parole, I'm there with this."
Mr. Costello says that Munoz laughs at him; he thinks that Munoz is obviously guilty.
The detectives and Van Buren discuss their theory, which is that the bookies had Farina attack Costello to warn her not to testify against them. Curtis is skeptical that Costello would still be protecting Farina after thirty years, but Van Buren says that Costello sees the scars on herself every night. She tells the detectives to see if Costello and Farina ever interacted. Later, Briscoe finds Costello's file, which indicates that she received a year's probation for promoting gambling. Taradash was her attorney.
"Yeah, he was the local guy."
"And Munoz wasn't."
—Reynaldo Curtis and Lennie Briscoe
Curtis finds the name of the bookie that Costello was working for, Eddie Murrows.
"He was KG. Known Gambler."
"I know what it is."
—Lennie Briscoe and Reynaldo Curtis
Curtis says that Farina's file stated that Murrows was one of Farina's employers.
At a tavern, Murrows says that Farina 'nudged' a few people to pay their debts to him, but that was many years ago. Briscoe brings up that Murrows also employed Costello; he says that he let her work off her debt. He adds that it was terrible what happened to Costello and that Munoz should have been executed. The two detectives bring up that Murrows spent the winter of 1965 arrested for gambling, but then Murrows gets up to go. Curtis stops him, noting a cell phone in Murrows' pocket.
"Well, a smart KG like you, you don't want your calls traced. You probably use a stolen frequency, right? An E felony."
Murrows sits. Curtis then tells him that Costello was arrested in 1964 for gambling, but only received probation, a very light sentence. Briscoe points out that Murrows was arrested soon after, and asks if he thought that Costello turned him in. Murrows argues that Costello didn't know anything significant. Curtis accuses Murrows directly of ordering Farina to attack Costello, but Murrows responds that Farina was in a different neighborhood that night, collecting on a debt.
"Red-letter day in sports. Ali took Liston in one. Bobby visited a client in Jersey. A guy in the restaurant trade. It's possible an unsolved battery was committed on this person."
Curtis tells Kincaid and McCoy that Murrows' story checks out. She identified Farina at the time as the man who assaulted her husband, and the assault happened at the same time as Cookie's. The husband, though, was too afraid to swear out a complaint, though he did stop gambling subsequently.
"The bottom line is, Bobby's in the clear."
Kincaid notes that they just went to a lot of effort because Taradash talked to Farina about Munoz's case. McCoy remarks that it's a small world. Briscoe, amused, notes that Taradash also represented Costello. The two lawyers look at each other.
"Is that a problem?"
Kincaid tells Schiff that Taradash's prior relationship with Costello was an obvious conflict of interest. Schiff is upset. McCoy asks if Schiff knew, and Schiff says that he didn't, or he'd have raised a complaint during the original case. Kincaid notes that Taradash didn't use his knowledge of Costello's gambling to discredit her, but posits that he may have tanked Munoz's case out of loyalty. Schiff says that Taradash wasn't like that, and notes further that Taradash went to a lot of effort to make his case. He put on twelve expert witnesses who testified for three weeks. Then Kincaid receives a call. As she listens, McCoy tells Schiff that they have to tell Munoz. Then Kincaid hangs up, saying that Teri Marks is getting involved. After explaining to Schiff who Marks is, Kincaid says that Marks is filing for a new trial on behalf of Munoz.
In McCoy's office, Marks (with Munoz in tow) tells the prosecutors that it's thanks to the detectives that Marks found Munoz's file and noticed the conflict. McCo says that it's no big deal. Marks says that she'll drop the motion if McCoy supports Munoz's parole application, which will be due in two weeks. McCoy says that he'll agree if Costello does too. Marks tells McCoy to be serious and argues that Taradash should have recused himself or gotten a waiver from Munoz certifying that he (Munoz) didn't care about the conflict; neither happened. McCoy sarcastically asks Munoz if he knew, and Munoz says that he didn't know any of it.
"I'll do one better. Everyone knew about the conflict, except my client."
"Now it's a conspiracy."
"Against the Puerto Rican man, baby."
—Teri Marks, Claire Kincaid, and Sal Munoz
McCoy orders Munoz to talk to him instead of Kincaid, then tells Marks that Munoz confessed. He calls the conflict of interest a 'footnote.' Marks says that his opinion doesn't matter, then tells Munoz that they're leaving. McCoy stops them, saying that the New York Times called them to say that Marks sent them a press release about her motion.
"It's an important case."
"For your career."
—Teri Marks and Jack McCoy
Judge Harold Rockwell hears Marks' motion. Marks says that the canons of ethics are clear; without a waiver, Taradash should have recused himself. McCoy says that Munoz could be lying about being unaware of the conflict. Rockwell asks if there's anything in the case record about this; there is not, but McCoy says that the record is incomplete. Rockwell says that they should fill in the missing parts and wants to know if the presiding judge is available to testify. He is, says McCoy, but he doesn't think that Taradash's conflict is new evidence, so it's not grounds for enlarging the record.
"It is if I say it is."
Judge Mallory tells the court that Taradash did admit to him that he'd represented Costello before, but that he didn't think his representation of Munoz would be compromised by this. He has to admit that he never saw a waiver signed by Munoz; rather, he told Taradash to talk to Munoz and to report back if Munoz objected. Marks asks why this conversation wasn't on the record in the files. Mallory says that he's sure it was, and he doesn't know why some files are missing. Acknowledging that he didn't insist on a signed waiver from Munoz, Mallory admits that he should have followed up on the conflict. However, he knew that Taradash was meticulous, so he trusted him. Rockwell asks Marks if there's anything in the files about a waiver, and she says there is not. McCoy says that the prosecution doesn't trust Marks and wants to inspect the files for themselves. Marks says that this would violate attorney-client privilege, so Rockwell says that he'll appoint a Special Master to go through the files to look for a waiver.
In a garage, Kincaid tells McCoy that Taradash saved just about everything, but didn't mention a waiver.
"Even a pack-rat like Nixon was short eighteen minutes."
He notes that Munoz had Taradash's files about him after Taradash died; when Marks told him about the problem, he could have taken any documentation of the waiver out of the files himself. McCoy says he looked at their own files and found that a Marcella Klein signed for some of Taradash's receipts. They decide to track her down, figuring that she might have been a law clerk who since became a lawyer.
In court, Klein testifies that she used to be a paralegal.
"...secretary's pay, lawyer's duties."
She credits Taradash with helping her become a lawyer. She testifies that Taradash told her that he told Munoz about representing Costello, and that Munoz didn't care. Marks asks if she was actually at this conversation; Klein says no. Marks then asks if Klein refused to attend meeting when Munoz was present; Klein admits to this.
"...he made me... uncomfortable."
Marks asks if Taradash felt the same way, but Klein argues that Taradash didn't let his feelings interfere with his work. Marks points out that Taradash allowed the jury to be entirely white for his Puerto Rican client and asks if they shouldn't read anything into that. Klein says that entirely white juries were common in 1965. Marks then notes that Taradash also never brought up Costello's gambling conviction to discredit her. Klein thinks that the point was moot, since Munoz confessed. The next question is why Taradash never challenged the confession, so Klein says that Taradash thought it supported an insanity defense.
"It was his strategy to let it stand."
"An effective strategy. If he wanted his client convicted."
—Marcella Klein and Teri Marks
Klein only responds that Taradash thought that Munoz needed psychiatric help, and he tried very hard to have him sent to a psychiatric facility.
Later, Marks tells Rockwell that Taradash's loyalties were split. Costello was popular, while Munoz was a nuisance that he was forced to defend. McCoy says that Mallory and Munoz both thought that Taradash could be impartial. Rockwell asks McCoy why Munoz, if he knew of the conflict, waited thirty years to seek a new trial. McCoy says that he might not have known he could do that until Marks told him. Marks then argues that, even if Munoz gave a waiver, he only has a sixth-grade education and would have done whatever Taradash told him. She insists that Mallory should have advised Taradash to withdraw. McCoy says that the verdict would have been the same with another lawyer, since Taradash did everything properly. Rockwell cuts him off. After a moment, he decides to remand the case for a new trial.
"The canons compel us to avoid even the appearance of impropriety. Since there's no record of any waiver, I can't assume one was given. I'm setting aside the verdict and granting a motion for a new trial."
Munoz grins. McCoy is stunned.
Later, McCoy vents to Schiff that Rockwell is the only judge who would read the canons of ethics so closely. Kincaid says that Marks extended her previous offer again; she'll plead Munoz out if they support parole. Schiff won't go for it. McCoy says that all the evidence is thirty years old, so a conviction won't be easy. Schiff says that they have Costello's testimony and Munoz's confession, so they should be fine. Kincaid worries that a jury might think that Munoz is rehabilitated and harmless.
"Munoz just crawled halfway out of the hole we dug for him thirty years ago. You hit him with a shovel before he crawls all of the way out."
Munoz is arranged for attempted murder and rape. The clerk, Mr. Morean, mentions that the case was from 1965, prompting disbelief from Judge Phillip Franks.
"Mr. Morean, remind me to check the battery on my hearing aid, will you?"\\
Kincaid confirms that the case is from 1965 and that Munoz is getting a new trial.
"Hats off, Mr. Munoz!"
Mr. Costello listens in the audience as Franks reads that Munoz originally went for an insanity defense. Marks says that Munoz is now pleading 'not guilty.' Kincaid wants Munoz remanded, since he already confessed. Marks argues that Munoz spent thirty years in jail and has earned some time away from it, but Franks doesn't care. Munoz is remanded. Kincaid approaches Marks.
"Bail for a confessed rapist? You must have had a double-dose of Wheaties this morning."
"I skipped breakfast so I could file this early. Motion for suppression."
—Claire Kincaid and Teri marks
Marks is arguing that Munoz was not Mirandized before confessing. She leaves, and Kincaid approaches Mr. Costello. He says that he had to see the arrangement with his own eyes, and that Costello is terrified that Munoz will get out and attack her again. Kincaid promises that they won't let that happen, but Mr. Costello cuts her off. He demands to know how this could have happened.
Marks tells Rockwell that Munoz was interrogated for six hours before confessing, and was neither informed of his right to counsel or his right to remain silent. McCoy says that those rights didn't exist until the Miranda case in 1966; Munoz was convicted in 1965. Marks argues that the Miranda case was first filed before Munoz's trial and that a competent attorney would have moved to delay proceedings until the question of Miranda rights was decided. McCoy argues that Taradash filed twenty-seven pretrial motions attacking the state's evidence, so he was clearly competent. He adds that it doesn't matter, since Miranda isn't retroactive.
"It's not grounds for appeal for every felon convicted before then."
Marks says she's not talking about any felon, but in Munoz's case, there's the possibility of a conflict of interest. The confession, she says, was never challenged. McCoy tells her to challenge it under the laws as they existed in 1965, which did not give Munoz the Miranda rights.
"I bet even Clarence Darrow couldn't get this confession suppressed."
Rockwell says that he's judging the case by the laws of the current year, so the confession is being excluded because Munoz was not Mirandized.
Van Buren complains that she can't spare Briscoe and Curtis on a thirty year old case.
"We're already behind on last month."
—Anita Van Buren
Kincaid says that McCoy is counting on them to find some evidence now that the confession is out. Briscoe asks why it matters, since Munoz has already served more time than Robert Chambers, who committed a famous murder.
"Munoz gets out, Detective, he can sleep on your couch."
Kincaid says that they'll need to get the witness who picked Munoz out of a lineup, but Briscoe says that she only saw him in the area. Kincaid asks about the knife they found on Munoz, but Curtis says that it got lost sometime in the last thirty years. There is no usable forensic data. Kincaid asks about a rape kit, and Curtis says that one was used. The semen from the attacker had the same blood type as Munoz, but they couldn't get any more data out of it.
"This is what they went to court with?"
—Anita Van Buren
Curtis says that they might be able to use Costello's dress, which her father still has, to get more evidence. Van Buren tells them to get the dress to forensics, and to find everyone who had an apartment facing the alley.
A Linda Santoro says that she has nothing new to say to the police, but Curtis tells her that after three years, she told her neighbor, Mrs. Baker, that she saw the whole thing from her bedroom window. Santoro says that she was asleep in the living room during the crime. Curtis threatens her with a charge of contempt. She maintains that she knows nothing. Briscoe then says that Munoz still knows how to use a knife, and asks if she wants him on the streets with her daughter. She gives up and says that she couldn't tell that Munoz was stabbing Costello.
"What did you think he was doing?"
"Just hitting her."
—Reynaldo Curtis and Linda Santoro
She learned the truth the next morning, but says that it doesn't matter, since Munoz was caught. She does admit to seeing Munoz's face, but she'd thought that Costello was just fighting with a boyfriend. Briscoe asks why she thought that.
"Oh... Cookie's what we used to call 'easy.' Every month, different lowlife."
"So... she had it coming?"
—Lindao Santoro and Lennie Briscoe
Santoro says that she isn't saying that Costello somehow deserved to be assaulted and raped, but was annoyed that the papers depicted her as innocent and pure (and the neighbors as horrible people who let her be raped and almost killed) when she, Costello, was dating thugs.
A forensic technician, Hoeck, says that the dress has cuts from a single knife, blood stains that match Costello, and semen. Curtis asks if the semen can be linked to someone after thirty years, and Hoeck says that the drying actually makes things easier. The semen matches Munoz. Unfortunately, Hoeck located additional DNA on the lower part of the dress, which neither matches Costello nor Munoz. It's not even clear what fluid, blood or semen, the DNA is from. Hoeck leaves, and Curtis asks Briscoe if he thinks that Munoz had an accomplice. Briscoe says that Costello might have had sex with someone on the way home, and they need to find out before Marks and Munoz. Curtis asks how they can do that, so Briscoe recommends asking Costello's bartender.
"She was working at the Franklin Pub."
"Yeah, assuming it's still in business."
"I'm here to tell you it is."
—Lennie Briscoe and Reynaldo Curtis
The bartender tells the detectives that he began working there thirty-two years ago, he bought the place about ten years later, and he's looking to sell it and retire. He asks if they're interested, then goes to serve a drink. Briscoe muses that he always wanted to own a bar. Curtis notes that the clientele is entirely male, and Briscoe says that this was true when he used to drink there as well, except they used to show football games. The bartender comes back and asks why they're interested in Costello, and they say that Munoz is getting a new trial, so they need background on Costello. They ask about her boyfriends. The bartender becomes offended, saying that Costello was attractive and that there's nothing illegal about having boyfriends. Curtis asks if Costello might have had sex that night before being attacked by Munoz, but the bartender says that she was at the bar all night. He adds that, in the week before she left the bar, she had stopped drinking, gambling, and smoking.
"Maybe she caught Billy Graham on TV."
He goes to serve another drink, and Briscoe says that, in his experience, women only drop bad habits for two reasons. One, he says, is a new boyfriend. Curtis says that the other is a baby. He notes that Costello was stabbed in her lower abdomen, so the mystery DNA could have come from the fetus. He wonders why the doctors who treated Costello didn't notice.
"Maybe they did. Maybe it was filed in the police report right next to her gambling conviction."
In her house, Costello is upset to see the detectives. She says that they keep bringing her bad news. She says that she was pregnant, but had only just found out about it and hadn't told anyone — her parents were very 'traditional' and she wouldn't have had very many choices. Briscoe asks if she requested that the police not mention this in their report, and she says they never knew either. The doctors did find out, though, and they told her father, who was at the hospital before she was. He asked them to keep it secret, with the result that not even Costello's mother knew. She realizes that people will have to know about this now, and Curtis admits that this could be possible. He asks who the father is. She says that she never told the father, as he was married to someone else. Briscoe asks for the name, and it's Bobby Farina.
Kincaid tells Schiff that Costello and Farina were having an affair. It only lasted two weeks, and Costello was too ashamed to tell anyone. Schiff asks what Marks and Munoz know, and McCoy says that Costello kept the secret very quiet, so Taradash probably didn't know, and therefore Marks wouldn't either. Kincaid says they have to release the forensics report. McCoy acknowledges that this would show that Costello was pregnant, but not the identity of the father. Schiff asks if Kincaid thinks they should tell the defense. She says that they are required to according to a case called Rosario, but Schiff says that only applies if Costello takes the stand, which she won't. Kincaid says they still have to tell the defense because it's exculpatory — it points to another theory of the crime, namely, that Farina attacked Costello. Schiff says that it sounds ridiculous that Farina would have attacked Costello and destroyed the fetus, but Kincaid thinks that a jury might find it credible. Schiff then adds that, in this theory, Munoz would have had to come along later and rape her (as his semen is still found on the dress). Kincaid agrees that this is not credible, but wants to err on the side of caution. Schiff refuses, saying that they won't give a three-time rapist a viable defense.
"That can't be a consideration."
"Oh, it sure as Hell can."
—Claire Kincaid and Adam Schiff
Kincaid says that they would risk committing reversible error and necessitate another retrial. She asks how many times they want to retry Munoz.
"As many times as it takes! We're legally, ethically, and morally entitled to keep this information from him. And that's exactly what we're gonna do."
In court, Hoeck testifies that he determined that the mystery DNA was ambeotic fluid, therefore, Costello was pregnant. As for the semen, it came from Munoz with a probability of 99.5%. Marks, on cross-examination, notes that 1-in-200 odds isn't all that helpful in a city of 8 million people. She asks if there's a better DNA test, but Hoeck says that it couldn't be used because there wasn't enough semen on the dress. He also has to admit that the dress wasn't kept in the police evidence room over the preceding thirty years but had been returned to the victim, so he can't be sure that it's really the dress that Costello was wearing when she was attacked.
"We have a photograph of the dress taken right after the attack. This... appears to be the same dress."
Marks asks if he'd stake his reputation on it. He says 'no.'
Santoro testifies that she saw the back of the man who raped Costello, and then saw his face when he looked up. She identifies Munoz as the man that she saw. Marks remarks that Santoro waited thirty years to call the police, so Santoro responds that she didn't call them, but rather, they came to her. She admits that they threatened to charge her with contempt. Marks then notes that Santoro had read articles about the crime and had seen Munoz's picture, and after Sanotor agrees with this, Marks asks if Santoro may have confused those images with the man she saw in 1965. She says that she doesn't think so.
"I'm just trying to do the right thing here."
"My client should rot in jail just so you can sleep at night?"
—Linda Santoro and Teri Marks
She ends her questioning.
Landis testifies that Munoz was stopped for a traffic violation. When he searched Munoz's car, he found a switchblade with blood on it. McCoy asks if Landis thought that Munoz was guilty or not after his interrogation, although he has to tell Landis that he can't actually reveal any of the interrogation's contents (because it was suppressed). Landis thought that Munoz was guilty.
Marks asks if Landis was convinced because Munoz was Puerto Rican. Landis protests that Munoz fit the description of the rapist that they had, but Marks notes that the description was 'Hispanic male driving a beige car,' a very vague descriptor.
"How many people fit that... very unique profile?"
Landis says that he doesn't know, but that a witness picked Munoz out of a lineup. Marks says that the lineup consisted of Munoz and five Irish police officers, so Munoz was clearly the odd man out. Landis says that he doesn't know about that, but that he followed procedure. On that, Marks asks if procedure would have induced the police to investigate Costello's gambling associates, or her pregnancy. He says no to the former, and that they were ignorant about the latter.
"Now that you know, do the six stab wounds to her lower abdomen acquire a new significance to you?"
Landis has to agree that they might. Marks asks if the attack was an attempt to abort Costello's baby. Landis argues that there aren't any facts supporting that.
"Detective, the only reason that we have no facts is that you never bothered to collect any."
She withdraws the question as McCoy stands to object.
Later, Kincaid tells Schiff that Marks is crushing them. McCoy says they have no choice but to have Costello testify. They'll have to disclose that Farina was the father of Costello's child, but Kincaid and McCoy don't see any way around it — Marks is attacking Costello's character, and if she doesn't testify the jury will assume, says McCoy, that they have something to hide. Schiff agrees to this, and takes the old case file with him before going home. Kincaid tells McCoy that it won't be pretty, so McCoy says they can get ahead of it by talking about the issues that could make Costello look bad before Marks does. Kincaid asks if he's sure, so McCoy cites the O. J. Simpson trial, which was derailed in part because the prosecution didn't preemptively deal with racist remarks by a detective in that case, Mark Fuhrman.
Costello testifies that she saw a car behind her just before she parked, but remembers nothing after leaving her car. She says that she suffered fourteen stab wounds in her throat, chest, arms, and stomach. She was rendered sterile, and lastly, she was raped. McCoy asks about her social life, so she says that she had many boyfriends, and made mistakes with some of them. She explains that she became pregnant after having sex with Farina, a married man. She didn't tell him because she didn't know if she'd keep the child or give it up for adoption, and she didn't tell the police out of shame. McCoy brings up her arrest, and she admits that she gambled and was caught taking bets to pay off her own debts. She finishes by saying that, the way she grew up, family was everything, but she can't have a family because of Munoz's actions.
Marks starts by saying that she's sorry for Costello's injuries, and has just a few questions. She asks about Farina, and Costello says that Farina collected debts. Marks asks if Costello knew that Farina had been convicted of violent crimes, and if she knew that he'd be unhappy if he learned she was pregnant. She admits to knowing that Farina was violent, and that he'd be upset if he found out about the baby. She says that him becoming upset was why she wouldn't tell him about the baby. This contradicts her earlier statement of not telling him because she wasn't sure about keeping the child, and Marks points this out. Costello says that it was for both reasons that she kept silent.
Marks then brings up that Costello denied knowing Farina when she was first questioned by Curtis and Briscoe. Costello acknowledges this, but insists that she is being honest now and that she never told him about the child.
"Because you were afraid of what he might do to you?"
—Teri Marks and Cookie Costello
Marks accuses Costello of blackmailing Farina by threatening to tell his wife about the affair unless he gave her money for an abortion. She denies this.
"I am a good Catholic! I would never do a thing like that!"
"You mean the kind of good Catholic who gets arrested for bookmaking, who commits adultery with felons?"
—Cookie Costello and Teri Marks
McCoy objects, and Rockwell sustains it. Costello exclaims that she's not a bad person, so Marks responds that Farina is, and that he stabbed her and aborted her baby. Costello maintains that Munoz did it, but Marks says that Costello admitted that she didn't see her attacker, and that she was simply told that Munoz did it later, by the police. Marks tells Costello that she went along with the Munoz prosecution in 1965 because, if she said that Farina had done it, he'd return and kill her. Costello begs her to stop, but Marks continues, arguing that the police framed Munoz and Costello said nothing for thirty years, even when Farina became a suspect it. Costello breaks down in tears.
"...you still denied knowing him! Even though you knew the only man with the motive to do this horrible thing to you was Bobby Farina, isn't that the truth?"
Hysterical, Costello says that she doesn't know. In the audience, Mr. Costello looks down. Marks finishes her cross-examination.
Later, Kincaid grumbles about Marks' legal prowess.
"Marks knows her audience. You could've heard a hair grow in that jury box."
McCoy says that the jury might have been fascinated by Marks tearing Costello apart, but that doesn't mean that they approve. Kincaid rejects this, saying that Marks made a strong impression. Schiff complains that, thirty years ago, Marks wouldn't have been allowed to perform like she did. McCoy says that, thirty years ago, there was a confession in evidence. Schiff says that there was also an insanity plea, and gives the old case file back to Kincaid. He says that Munoz had a girlfriend who was supposed to testify at the trial to support his claim of insanity, but she mysteriously vanished before she took the stand. Taradash accused the prosecutors of threatening to pull the girlfriend's visa to make her not want to testify. McCoy asks if this is true, and Schiff says it isn't. Kincaid wonders why she vanished, then, so Schiff tells them to find her and ask her.
The girlfriend, Olivia Valerio, tells Rockwell, with the prosecutors, Munoz, and Marks present, that Munoz wanted her to lie for him to say that he was insane and heard voices. She refused, and so fled to Santo Domingo.
"But he's not crazy, he's just evil."
Rockwell says that this isn't relevant to this case, so McCoy asks Valerio to talk about times when Munoz hurt her. Valerio says that Munoz would sometimes want to have sex when she did not, and in those times, he would hit her and rape her. He'd hit her harder, she says, if she tried to escape. Marks tries to have the testimony stopped, but Rockwell bids her to continue. Valerio tells Rockwell that she once approached the police about this, but Munoz found out and threatened to cut her with a paring knife so as to make her sterile if she ever did that again. Rockwell thanks Valerio and dismisses her.
Marks says that it's unbelievable that McCoy would even try to get this testimony admitted; it's prejudicial and is only about irrelevant prior bad acts, and therefore inadmissible. McCoy says that it establishes a pattern of similar weapons and motives. Marks says that a kitchen knife isn't the same as a switchblade, and that Valerio, his girlfriend, was different than a total stranger. McCoy says that Munoz threatened to hurt Valerio in the same way he did hurt Costello and possibly others, but Marks says the problem for the prosecution is that there are no others.
"Two vaguely similar acts do not add up to a pattern."
Rockwell agrees with Marks. Valerio can't testify.
Later, in court, Costello and her father are in the audience as the jury enters. Munoz is acquitted of all charges. Munoz cheers and gladly shakes Marks' hands. He then turns to the gallery, scowls at Costello, and blows a kiss at her. Marks nods at McCoy, who can only look at Kincaid.
That night, Kincaid sighs that Marks just held a press conference, where she claimed that she righted a thirty-year old injustice. McCoy agrees that Marks' seems far too proud of her 'accomplishment.' Schiff says that she did her job.
"Well, we didn't do ours."
McCoy says that the evidence was bad, the case was old, and Rockwell kept ruling against them, but they still did everything they could. Schiff is not convinced.
"Didn't you tell me you never make this job personal?"
"I lied. Second time in thirty years."
—Jack McCoy and Adam Schiff