Denial, Then and Now

I caught an old TV episode of Law and Order that was so revealing, the next time I saw it in my listings, I DVR’d it and put it under the microscope.

The episode, simply titled “Denial” (Season 8, Episode 2, cast details here.), concerns a teen couple and the death of their newborn infant. It follows the one-half investigation, one-half trial that’s familiar to L&O fans, but this time with an added emphasis on the muscular tactic throughout by the defendants, parents, and attorneys to concede nothing they don’t have to.

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The episode opens with the discovery of blood in a hotel room, enough blood that indicates “more than a nosebleed”. As the crime scene analyst put it to Detectives Briscoe and Curtis, “somebody got hurt”. But importantly, while there’s evidence of bleeding, there’s no clue as to who was the bleeder. Two leads from the hotel – a stolen credit card and a sketch of a young man – result in the detectives meeting (separately) Christina Talbert, whose father owned the credit card that was stolen, and Tommy Horton. These two are college students (Christina is a 17-year old on scholarship and still lives with her parents.) First Christina:

Briscoe: Right now, your father’s credit card is our only connection to a crime.

Christina: Well, it’s Dad’s card. I never use it.

Curtis: How about you write down the names of your friends at Hudson University.

Christina: I don’t want you bothering my friends. Are we done here?

Curtis: Look, if we start asking around, we’ll get your class schedule, clubs you belong to, everything you do there.

Briscoe: By this time tomorrow, we’ll have a list of all your friends.

The detectives then begin carrying out that threat, and someone at Christina’s student newspaper recognizes the man in the police sketch as her boyfriend, Tommy Horton. But before they can question him at his dorm, the detectives are met with defense attorney Charles Garnett, who says he has advised him not to speak with the police until he got with him. Here’s the dialogue of the interview inside Tommy’s dorm room:

Garnett: So the sketch vaguely resembles him. He’s young, he’s blonde, so what?

Briscoe: If this is a case of mistaken identity, let’s get him in a lineup.

Garnett: What’s the charge, soiling linens?

Briscoe: Why didn’t Christina tell us you were her boyfriend?

Garnett: Why don’t you ask her?

Briscoe: You mind if he answers a question every now and then?

Tommy says he went to a fraternity party with Christina and that they turned in early (9:00). He says she went to the library, he went home. When the police ask whether he may have gone to the hotel with someone else, the lawyer terminates the interview.

As it turns out, the suggestion that Tom may have been with anyone else is doubted by one of his fraternity brothers. “He’s nuts about Christina.” When he mentions that Christina’s appearance was “on the chunky side” (in which the viewers have already seen in her interview that at the time of her interview, she’s not). She wore baggy clothes, and the frat brother opines that she’d be pretty sweet if she “offloaded a few pounds”. At this, the detectives figure out that the victim in the hotel room could be Christine’s child from a pregnancy.

This leads to the second interview with Christina, and instead of in her home, she (accompanied by her mother) is asked the questions in the interrogation room:

Lieutenant Anita Van Buren: The final report came in an hour ago. Forensics found amniotic fluid in the mattress. Do you know what that is?

Christina: Yes. It didn’t come from me.

Briscoe: And the Type O blood in the room – that didn’t come from you?

Christina: No. It’s not mine.

Briscoe: What was your boyfriend doing there?

Christina: He wasn’t there. He was with me.

Van Buren: Christina, lying’s only going to make things worse for you and Tommy. If there was a baby involved, we need to know what happened – now.

The acting in this exchange leads the viewer to believe that Christina’s mother could be a moral checkpoint to this episode. When the “Type O Blood” fact is revealed, Mrs. Talbert is genuinely shocked, and when Christina doesn’t have an answer to the last question, she begs her to answer. Her appeal to Christina is interrupted by the appearance of her father and her attorney, Mr. Garnett. Garnett asks to speak with Christina alone. After this, she has a story to tell, but with her mother out of the interrogation room: she and Tommy had sex, she started to bleed, and “tissue started coming out”. A miscarriage. She says she didn’t know she was pregnant, and that she was maybe only two or three months along. She says she flushed the fetus down the toilet. And she says all of this tearfully.

All of this is immediately repudiated by the medical examiner’s report delivered to the detectives, which said that the fetus was probably seven or eight months along. “So we’re still being lied to,” Detective Briscoe says. The detectives have the District Attorney get an order for a medical exam. In the judge’s chambers with Assistant District Attorney Jamie Ross and Garnett:

Garnett: A viable baby? That’s ridiculous…So she bled a lot; that’s why you want an order for the doctor to look up her dress? She’s been traumatized enough.

Ross: She’s consistently lied to the police.

Garnett: She didn’t want her mother to know she was having sex with her boyfriend.

Judge (to Ross): Come back when you have evidence before you ask to invade this girl’s privacy.

The action turns back to the detectives, and they interview another fraternity brother who puts them at the dance at 11:00, well past their 9:00 exit story. Not only that, they were seen dancing together to their song. A search for the baby ensues, with no success. With no cooperation from the parents or the boyfriend, the next move is to try to find evidence on the basis of the credit card “theft”. Even though Mr. Talbert had considered the matter with the credit card settled, the credit card company still considered it stolen, which was the basis for the search warrant. The detectives find some evidence of various kinds, which will become relevant in the inevitable legal challenge to admission. I’ll get to the specific evidence in a bit, but based on this evidence, the detectives have figured out that this was no miscarriage. The birth was intentionally induced, and the child was killed outside the womb. Tommy and Christina are arrested.

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However, because there’s still no body to be the object of the murder charge, the Ross and Executive Assistant District Attorney Jack McCoy are moved to offer a plea deal. “How quickly can I say no?” Garnett responds. Then the war over the evidence begins:

McCoy: I’m putting aside that your clients premeditated this killing.

Garnett: Says you – you wouldn’t have asked us here if your case had a snowball’s chance.

McCoy: You wouldn’t be here if your clients were innocent.

Garnett: The fetus, however old it was, was stillborn. There’s no crime.

McCoy: You’re taking the position that a dead baby excreted meconium.

Garnett: No. I’m taking the position that you didn’t find any meconium. Motion to suppress; the search was conducted under false pretenses.

“You didn’t find any meconium” (baby feces, for those not familiar with the term). The finding of meconium was the proof that this child spent some time outside the womb alive, and therefore its death would make it a criminal offense. It’s telling here is that Garnett‘s assertion of “no crime” rests on a hearing on whether the meconium can “exist” in this trial. I know there’s a litigator’s cliché that if you can’t document it, it didn’t happen. Which makes sense as a shield against allegations, but in this case, Garnett was using the possibility of the exclusion of the evidence as a sword, to tell a completely different story about what happened. The constitutional protections that were designed to protect the individual against the government not only used to exclude evidence in defense; the absence of said evidence clears the way for a completely different version of what happened to the child. A “narrative” – the new name for a lie.

This brings us back to the search warrant that was based on the “stolen” credit card. The detectives found bloody and soiled clothing in the closet and a pad of blank prescription forms from an ob/gyn in the dresser. As an afterthought, they found the books that had been purchased with her father’s credit card.

Although they couldn’t get any information from the ob/gyn on whether Christina was ever pregnant, she did admit that that was her pad of prescription forms that Christina had lifted. At the next door pharmacy, they learned that she had purchased something to induce labor, which along with meconium (baby feces) led them to conclude that the fetus was outside the womb when it was killed.

Garnett challenges all of this evidence was outside the scope of the search warrant. In fact, the books that were the subject of the search warrant were located on a shelf next to the entrance, on the other side of the room from where they found the other evidence.

McCoy: It said “books”. They found books. They seized them.

Garnett: As an afterthought. The books were on a bookshelf in plain sight the whole time they were there. … They were halfway out the door when they remembered to take the books.

Ross: So they seized the books last instead of first. Was there some recipe they were supposed to follow?

Garnett: The warrant was a pretext. That’s per se abuse.

McCoy: They went to Ms. Talbert’s room for evidence of one crime. They found evidence of another. That’s called luck.

Garnett: That’s called a scam. The detectives knew the credit card wasn‘t, in fact, stolen.

McCoy: They were acting on a complaint from the credit card company.

The judge, as is common in these episodes, splits the difference like an answer to an excessively clever law exam question: the meconium is allowed, but the prescription pad is excluded. This leaves evidence of a live birth, but without the prescription pad, they can’t prove intent that Christina and Tommy intentionally induced birth. Another deal is offered, but this time for only Tommy.

This brings up the conflict of interest issue with Garnett representing both of them. After a perfunctory offer and perfunctory decline, the district attorneys give notice of a motion to remove Garnett as Tommy’s attorney.

More lawfare in front of the judge at the hearing:

Garnett: There is no conflict, your honor. There is only one defense position.

McCoy: That’s because there’s only one defense attorney.

Garnett: My clients only want one defense attorney. It’s their decision to make.

McCoy: Who’s to tell them any different? You honor, I made a very fair offer to Mr. Horton to testify against Ms. Talbert. How can he give objective advice regarding this offer?

Garnett: So fair, that it could only be made to get me yanked as Mr. Horton’s counsel.

The judge agrees to have Garnett removed, but the offer to Tommy has to remain. This doesn’t matter, because over the objection of his new counsel to take the deal, Tommy now says the baby was alive when they left the room, and that they didn’t do anything wrong.

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The trial proceeds against both of them, and without a body, this allows Garnett to argue that it’s possible that the baby is not dead, and that there’s no crime, taking up the same story Tommy is now giving, only now we have some additional details:

Tommy: After he was born, Christina held him for a little while. She really loved him*. …We wrapped him in a blanket, left him on a bed, where a maid would find him. We did the hardest thing we’ve ever done. We walked out of the room. Then we went back to the fraternity. Christina, she felt sick and she started to bleed. She went to the bathroom and began to pass the afterbirth. Then she wanted me to take her home.

*There’s no real pro-life or pro-abortion political message in this episode, but I just wanted to point out that in all of the other scenes, the object of this crime has been described as a “fetus” or “child” or “it”. To this point, we don’t even know the gender of the child. This is the only revelation that the baby was a “he”.

He further testified that the next morning, they tried to return to the hotel, but the police were already there, and that they had found the baby.

On cross examination, McCoy walks him through the things he failed to do on behalf of the baby boy:

McCoy: Just so we understand you, you felt so upset that you went back to a party at your fraternity house?

Tommy: Yes. Didn’t really know where else to go.

McCoy: You requested a song – “Endless Love” – isn’t that right?

Tommy: It was a special song for us.

McCoy: And you danced?

Tommy: We were just holding each other.

McCoy: On the dance floor. Isn’t that called “dancing”?

Tommy: Yeah, I guess. We both felt really bad.

McCoy: So you punished yourself for murder by having a little dance?

Tommy’s counsel: Objection.

Judge: Sustained

McCoy: Didn’t it occur to you to call 9-1-1 to tell the police about your child?

Tommy: Yes. But Christina felt sick, and I had to get her home.

McCoy: They don’t have a phone at her house?

Tommy: I didn’t want to wake up her parents.

McCoy: How about on the way back to your dorm?

Tommy: I..I don’t know. I was just worried about Christina.

McCoy: Can you tell us about anything you did? To suggest that you had a single thought about that child after it was born?

After a series of objections, McCoy plows into the summary point that “the truth is that you didn’t give a damn about that child. You had decided to kill that baby when you reserved that hotel room.”

After this cross-examination (Christina does not testify), the plot turns. At a construction backfill site, the body of a newborn is found, wrapped in a towel from the hotel. Born alive and healthy, and we get a new detail: death was by strangulation. The larynx was crushed. Moreover, there’s evidence that the body may have been covered with backfill to hide it at the request of Christina’s father (an architect with access to the site).

When confronted, Mr. Talbert (with Mrs. Talbert at his side) gives another story of dubious value:

Mr. Talbert: You [Mrs. Talbert] were asleep when they came home. Christina didn’t look well. I knew something was wrong. I made them tell me what happened. They said they left the baby in the hotel — alive. They wanted to go back. I told them it was too dangerous. I told Tommy to go home. I sent Christina to bed. I drove to the hotel room and when I got there [dramatic inhale] it was on the bed there wrapped in a blanket. It was wheezing, it was in trouble. I brought it to my car, but before I could get it to a hospital, it was dead.

Like his daughter, he says all of this tearfully. Mr. Talbert completes the story by saying that he took it to the construction site to bury it.

McCoy, now filled with exasperation, tells him about the rebuttal evidence to this story:

McCoy: Our medical examiner has determined that it was strangled. Someone choked it with her bare hands.

Mr. Talbert: No–no. It died of natural causes.

McCoy: Please don’t insult our intelligence. The baby was dead when you found it, wasn’t it?

At this, Mr. Talbert lawyers up, and in the next scene he offers (through a third defense counsel) to testify against Tommy, but only if all charges are dropped against his daughter Christina. When the attorneys have heard what Mr. Talbert has to say, another layer of hideousness is revealed: the baby had been left in the trash can, wrapped in a towel, with newspaper on top of it to hide it. At long last, the truth. But it comes at too high a price. The District Attorneys decline the offer and go further:

McCoy: I can’t accept your terms. I’ll subpoena him. He’ll testify with no preconditions.

Attorney: Absolutely not. He’ll take the Fifth.

McCoy: I’m conferring immunity right now. You’re taking the stand tomorrow morning.

Attorney: He won’t testify.

McCoy: Are you sure about that, Mr. Talbert?

Mr. Talbert: I am not sending my daughter to jail.

The meeting ends with McCoy having Mr. Talbert arrested for contempt. The signature quote from McCoy is telling: “I’ve had enough of him, his daughter, and her boyfriend. If I could indict him as a co-conspirator, I would. This baby is dead. I hope they all go to jail for it.”

When the trial resumes, more lawfare is at play. After highlighting Mr. Talbert’s connection to the site where the body is found, defense calls Mrs. Talbert in an attempt to have her repeat Mr. Talbert’s story (the one where he says he found the baby still alive, but in trouble). Counsel approach the bench:

McCoy: It’s the people’s position that Mr. Talbert lied to protect his daughter.

Garnett: That’s his position, not mine. Mr. Talbert’s credibility is for the jury.

McCoy: Then the person who should be testifying here is Mr. Talbert.

Garnett: Why he isn’t is because Mr. McCoy has him in jail for contempt.

McCoy: He advised counsel that if he called, he would invoke his Fifth Amendment right. I immunized him. He still refused to testify. He’ll stay in jail until he changes his mind.

Garnett: Your honor, I don’t represent Mr. Talbert. I don’t have any control over him. To penalize my client and Mr. Horton for Mr. Talbert’s actions would amount to … reversible error.

After hearing that Mr. Talbert had been locked up for 36 hours, the judge concludes that he isn’t going to change his mind, and that Mrs. Talbert could testify to what he said. So when Garnett brings up the evidence of strangulation, he badgers her into not being able to say who did that. (“Your husband or your daughter!”) But knowing that Mr. Talbert isn’t a serious suspect, all of this was to create doubt for the culpability of the two people that are on trial, and to make Mr. Talbert’s unheard testimony be self-incriminating, rather than incriminating against Christina and Tommy.

The avalanche of denials works: the jury return a verdict of not guilty.

I included long passages of dialogue to highlight the nature of this denial that goes to the most minute details. And while the pretext of the police search warrant was arguably of the same degree of falsehood, the moral tone is negative against this lying. I knew this episode was from the 1990s, and this impulsive type of lying appears so much more ubiquitously, especially in public life. The air date of the episode was October 8, 1997.

Three months later, Monica Lewinsky would file an affidavit in the Paula Jones sexual harassment lawsuit against President Bill Clinton, in which she denied having sexual relations with the president. A week after that, Clinton himself would give a deposition denying he had any sexual relations with her. When news broke of the allegations of the sexual relationship between Lewinsky, a former intern at the White House, and the president, Clinton would tell the world these words: “I did not have sexual relations with this woman – Ms. Lewinsky.” Ken Starr, the Independent Counsel already assigned to investigate a separate Clinton corruption allegation, gets permission from Attorney General Janet Reno to expand the investigation to whether the affidavit was false. So began perhaps the most egregious denial campaign in American history.

The full scope of this scandal is too broad to discuss here, but what’s pertinent here is that at the end, after the mainstream media and non-Fox News punditry took the president at his word that there was no affair, after “genetic material” on a blue dress repudiated his denial, Clinton was left to the defense that when he gave his affidavit and said to the public that he didn’t have sexual relations with Lewinsky, he was really saying that he didn’t have “sexual relations” with her, as more narrowly defined in the Paula Jones sexual harassment lawsuit. “You didn’t find meconium” was the foundation for a set of false facts. “I did not have sexual relations” was also the foundation for a set of false facts to the American public. In the sexual harassment lawsuit, it was also possibly a criminal offense and, if the office of the presidency was used to obstruct the lawsuit, possibly an impeachable offense.

In August, the Independent Counsel required Clinton to testify before a grand jury to explain himself. On the question of whether he knew he gave a false statement in his affidavit regarding the affair, they thought they had him pinned to a false statement. Here is how it went down:

BY MR. WISENBERG:

Q Mr. President, I want to, before I go into a new subject area, briefly go over something you were talking about with Mr. Bittman.

The statement of your attorney, Mr. Bennett, at the Paula Jones deposition, “Counsel is fully aware” — it’s page 54, line 5 – “Counsel is fully aware that Ms. Lewinsky has filed, has an affidavit which they are in possession of saying that there is absolutely no sex of any kind in any manner, shape or form, with President Clinton..

That statement is made by your attorney in front of Judge Susan Webber Wright, correct?

A That’s correct.

Q That statement is a completely false statement. Whether or not Mr. Bennett knew of your relationship with Ms. Lewinsky, the statement that there was “no sex of any kind in any manner, shape or form, with President Clinton,” was an utterly false statement. Is that correct?

A It depends on what the meaning of the word “is” is. If the –if he – if “is” means is and never has been, that is not— that is one thing. If it means there is none, that was a completely true statement.

One could write a liar’s playbook based on this entire testimony, but in this snippet, it appears that Clinton attempted to say that if it something isn’t happening now, it can be denied that it ever happened. Given Clinton’s corrupted past, this disassociation from the past would be a viable tactic to attempt if he was in a pinch.

It worked. Starr would produce a report in September that produced the list of offenses that the House of Representatives would vote to impeach Clinton, but the Senate voted not to convict. As the votes were cast, cable news channels carried a split screen with the votes and with conveniently-timed air attacks on Iraq.

This post may sound like a useless re-litigation of the past, but the public use of the false narrative, without appropriate consequences, has only grown in frequency:

In order for the Obama administration/campaign to sustain a narrative that a terrorist group is on the decline, a subsequent attack in 2012 on a U.S. compound in Libya is blamed on a producer of an online movie that practically no one, let alone the attackers, knew even existed. Then they manipulated the CIA talking points on the attack and one official appeared on five Sunday news shows to advance the lie.

After absorbing repeated punches to his head from 17-year old black youth, a man defends himself by shooting him.The black youth dies, and the black community calls it a racial shooting. A national media news outlet distorts a 911 call, and another classified the shooter as a “white Hispanic”, to force in the racial angle. When the man is acquitted, violence breaks out.

A young and large black man in Florida steals cigars from a convenience store and starts walking down the middle of the road. When he asks him to move to the side of the road, the young man tries to steal the officer’s weapon and, after getting shot once, charges after the officer. The officer shoots and kills the young black man. In the investigation, witnesses give exculpatory testimony that contradicts the physical evidence. When the grand jury finds that the officer committed any crime, violence breaks out.

A large black man in New York City is caught selling loose cigarettes on the street. Police attempt to accost him, but in so doing, the man dies of a heart attack. One officer attempts to bring his arm around the man’s head, but it was a submission hold, not a choke hold. The man was alive when he entered the ambulance. When the grand jury finds that no crime was committed, violence breaks out, and not long thereafter two NYPD officers are fatally shot, apparently in revenge for the lack of indictment.

A major magazine publishes a story depicting a gang rape at a fraternity party at a major state university. The information used to publish the story came almost exclusively from one source, the victim, and when some important details contradict the story – such as the lack of any party at that fraternity on the night in question – the magazine retracts the story. The reporter apologized to the magazine’s readers, editors and colleagues, and to victims of sexual assault who may be fearful. She does not apologize to the fraternity.

I didn’t even have to scour the corners of the Internet to find these stories. These have been leading many nights in the national news outlets recently. I left out the names because using them carries with it so much baggage.

Before this year is half done, the Court could impose the cultural fiction that marriage can mean a union of two members of the same sex, and could interpret a law to allow the federal government provide a health insurance subsidy when the letter of the law explicitly excludes it from doing so. This is a long way from the principles of the rule of law and truth in facts. As the Law and Order episode showed, such disregard used to be unusual.

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