A/N: Thanks again to RebeccaInley and Lynn46 – their help has made this story immeasurably stronger. Any remaining flaws are entirely my own.


Diminished Capacity


Abbie Carmichaels' Townhouse

10 am Tuesday May 8th 2007


Jack McCoy rubbed his eyes. Fatigue weighed on him, but he knew he had no chance of catching a nap. He'd managed to get a few hours of sleep the previous night after Regan had stormed upstairs to her bed, tossing and turning on Abbie's couch, but his eyes had been wide open well before dawn.

Don't, John, stop it, don't, please –

No matter how he tried, he couldn't bring that Thursday night clear. He clenched his fist and studied it, trying to imagine it smashing into Keri Dyson's face. Imagination failed.

Regan's desperate theory that he'd been drugged made a lot less sense to him than his own conviction that he couldn't remember because he couldn't bear to. What a man, he thought sickly. Man enough to beat a woman, not man enough to face what you've done.

He could imagine Keri being hit – could imagine her terrified face – could imagine looking up as a man with huge hands pushed her against the wall and pulled back one big fist and –

Couldn't imagine that fist being the one at the end of his arm.

But it was.

The one time John McCoy senior had ever told his eldest son he was proud of the kind of man he was turning into ­– You might finally be growing up into a real man, Johnny – Jack McCoy had decided then and there that he would never be what his father considered to be 'a real man'. He could still remember his smart-aleck answer – If you're a real man I'd rather be a goddamn monkey – and the pain of the blow that had followed.

He'd made his own code. When Regan had joked about 'Jack McCoy, self-made man with unskilled labor', she'd been closer to the mark than she could possibly have realized. McCoy had worked out his own patchwork system of ethics, based partly on the Church he'd stopped attending, partly on the opposite of what his father valued, partly on the philosophy and ethics he read as a law school, on the Constitution and the principles behind it, on the arguments he had with fellow students and later with colleagues … nowadays McCoy couldn't have pointed to any one thing he believed it and explain where it came from.

Except that single, central belief – I am not my father, and I will not become him – that single central belief that had been proven false.

Own up to it, damn it! You couldn't stop yourself becoming him – at least do what he never did. Admit what you did, admit it was wrong. Take responsibility. Face the music.

McCoy had wondered sometimes what his own childhood would have been like if his father had been man enough to do just that. Or if he hadn't been protected by his badge and his buddies from the consequences. If John McCoy senior had been arrested the first time he'd left his wife bleeding on the floor … I don't know what it would have been like to grow up in a home, not a battleground.

But it would have been different.

It would have been safe.

"Jack?" Abbie's low voice came from the hall.

And if the years I've spent fighting for the safety of the people in this jurisdiction are going to mean anything at all, I have to make sure that no-one ever asks that question about me.

"I'm in here," McCoy said. He scrubbed his hands over his face, trying to rub away any signs of exhaustion.

Abbie stopped in the living room doorway, head tilted to one side, and said bluntly: "You look like shit, Jack." McCoy smiled to realize his efforts had been wasted. Can't fool Abbie, he thought. Never could. "I'm not joking," Abbie said, coming to lean on the arm of the couch beside him.

"What are you doing home?" he asked her. "You feeling okay?"

"Feeling better than you. What time did you let that poor girl get some sleep last night?" Abbie asked.

"She's not a girl. And I don't know," McCoy lied. "I know you thought I was hard on her – but it worked, she won the motion. Trial on Thursday."

"Thursday!" Abbie stood up in shock. "No ADA can get a case fully prepped that fast – and no defense attorney can, either!"

"Connie Rubirosa didn't oppose," McCoy said.

"Why not?"

"Regan didn't say." Regan hadn't said much of anything in her quick phone call, voice tight, words clipped. "But I'm glad it's moving quickly. I want it over with."

"They must think they have a smoking gun," Abbie said. She took a few steps across the room, then a few steps back, hand pressed into the small of her back as she balanced against the weight of her swollen belly. "But Regan's going to be flat-out preparing – opening statements take time to draft, preparing for cross – "

"She'll be fine." McCoy said.

"She won't be fine," Abbie said, sinking down onto the couch beside him. "I wouldn't be fine. What the hell do you expect her to be able to do with that time-frame?"

"Stand up and sit down when she's told," McCoy said tersely. "That's all she's got, anyway. Except some cock-and-bull story about – "

"Okay, I did not just hear you say that," Abbie said sternly. "I don't have privilege and if you voluntarily break privilege then Regan doesn't either. So don't even think about saying something that might imply you don't believe the theory of the crime your lawyer is going to present to the court." She leaned forward and glared at him intently. "You got that?"

"Yeah," McCoy said.

"You know, I really wish I could kick some sense into you," Abbie said. "But I don't want to end up on the stand as a witness for the prosecution, so I'll restrain myself. And from the look of you, you've been beating yourself up enough for both of us." She studied him. "You were always willing to go the extra mile when it came to cases with – "

"Drop it, Abbie," McCoy warned, launching himself to his feet and putting a safer distance between them.

"I'm just wondering if your judgment is as good as it usually is," Abbie said.

"If my judgment was any good," McCoy snapped, fists clenched, "I wouldn't have – "

No, John, stop it – don't, please!

He shook his head, trying to shake loose the memory, and forced himself to open his hands.

"Okay," Abbie said. She paused. "Jack, maybe you should stay here for a few days."

Bad idea. "You've already got someone in your spare room," McCoy pointed out.

"You've slept on the couch plenty of night," Abbie said. "And – I'd feel better. I don't like to think of you on your own."

McCoy shook his head. "I'm better off on my own." And you – and Regan – are better off with me out from under this roof.

"Humor me," Abbie said. "Please, Jack. At least think about it." She leaned forward as if about to stand up. "Promise me you'll think about it."

McCoy nodded before she could get up and come any closer to him. "I'll think about it."

"Will you think about doing what your attorney advises, too?" Abbie asked.

"I thought you were going to stay out of this," McCoy reminded her.

"I'm already in it, Jack," Abbie said. "Like everyone who cares about you. Maybe you should think about that in your race to throw yourself off the judicial cliff." She paused, and then said very softly: "If you go to jail, Jack, what am I going to do?"

"False vulnerability is particularly unconvincing coming from Hang 'Em All Carmichael," McCoy said without turning to look at her.

"Jack," Abbie said. "Jack! Look at me."

Reluctantly, he did. Her hands rested protectively over her stomach, and her eyes were full of unshed tears.

"I'm seven months pregnant. My husband is on active duty on the other side of the world. My family lives in Texas. And I am scared shitless." Her voice cracked, her lip quivered.

"Hey, you'll be fine, Tom'll be fine," McCoy said quickly. He hesitated, but she was looking at him so imploringly he couldn't keep from crouching down beside her and resting his hand over hers. "He'll be back before – "

"Maybe," Abbie said. She covered his hand with her own, holding him fast. "Everything in my life is maybe. Maybe I'll be okay. Maybe nothing will go wrong in the next two months. Maybe nothing will go wrong after that. Maybe my husband won't get shot or blown up. Maybe, maybe,goddamn maybe! The only thing in my life that is never 'maybe' is this one friend I have, who never lets me down."

"Abbie…" McCoy said.

"And I need him, Jack, I need my friend!" Abbie said, tears falling now. "I can't do this without him! And you're going to just let them put him in jail!"

"Abbie, it's not so simple," McCoy said.

"You promised me, do you remember, you promised me that all I had to do was call, and you'd come?" Her grip was painfully tight. "Did you mean it? Or was it just more McCoy blarney?"

"Abbie…" McCoy said. "You don't understand what you're asking."

"I'm asking you to keep your promise," Abbie said insistently. "I want you to fight these charges, and stay out of jail, and be there when I bring my baby home from the hospital."

She gasped suddenly, and at the same moment McCoy felt the percussion of her unborn baby's kick.

"This baby agrees," Abbie said. "Jack."

"I can't promise," McCoy said. "I can't – Abbie, if I told you – "

"Promise me you'll consider it," Abbie said.

McCoy hesitated. "Okay," he said at last.

Abbie let him go, and brushed her fingers across her eyes. "Damn hormones," she grumbled. "Can't talk about anything important without getting emotional."

She started to heave herself to her feet. McCoy stood up and took her hand, hauling her up off the couch.

"See?' she said, swatting his arm. "If you go to jail, I'm never going to be able to sit down again without worrying I'll end up stuck on that couch like a beached whale."

McCoy looked down at her, her eyes red-rimmed. He couldn't make her a promise he might not be able to keep, but nor could he tell her the truth. That I'm going to jail because I deserve to.

That this apple fell all too close to the McCoy family tree.

Without speaking, he pulled her close, feeling her arm and fragile in his arms. He'd long ago realized that there were some things he couldn't protect her from.

But there are some things I can.

I'll keep you safe, Abbie.

Even from myself.


......


Abbie took her laptop and cell phone up to her bedroom and shut the door behind her. She opened up her on-line banking program as she dialed Danielle Melnick's phone number.

"Melnick," a familiar voice said, Danielle's nasal New York accent giving even her own name a cynical edge.

"Danielle, Abbie Carmichael," Abbie said, trying to sound equally professional and dispassionate. Her throat felt tight and sore, as if she had been crying hard. Damn hormones. She hated crying in front of anyone, even McCoy. Still, maybe she'd managed to shock McCoy out of his determination to rail-road himself to a conviction.

I can only hope.

She swallowed against the lump in her throat. "Did you hear from Regan?"

"Thursday," Danielle said grimly. "Sally's in court tomorrow but I'm going to clear my diary for the day. We've got work to do."

"We've already got donations coming in," Abbie said. "It looks like we won't have time to spend them."

"We'll have bills," Danielle said. "You'd better put me as a signatory on the account, so you don't have to know what they're for."

"I'll email you the form," Abbie said, doing just that as she spoke.

"Thanks," Danielle said. "Abbie – how's Jack doing?"

"He looks like hell and he's ready to nail himself to the cross if Mike Cutter can't find enough nails," Abbie said. "Do you know what's going on with him? You know, it's always been nearly impossible to get Jack to admit he's made a mistake – when he has. I would have expected him to fight this tooth and nail, not roll over and die!"

"I've known Jack a long time," Danielle said, her usually businesslike voice softening a little. "I – " She paused. "You know, in second year Crim Law class, the professor made a distinction between a 'real' assault and a 'domestic'. I was outraged – but it was Jack who organized the petition to get him fired."

"Those cases always seemed to hit him hardest," Abbie agreed.

"Always seemed to hit him close to home," Danielle said. "Not that he'd ever talk about it. Jack McCoy, talk the leg off a table under wet cement on any topic except himself or how he might actually personally feel about something."

"I don't know anything about Jack's background," Abbie said slowly. "It sounds like you're suggesting – "

"I'm not suggesting anything," Danielle said firmly. "Especially not to someone who doesn't enjoy any privilege for this conversation. But I will tell you something. Convincing the jury that Jack is not guilty is going to be hard, but it's going to be a hell of a lot easier than convincing Jack that he's innocent."

"Higher standard of proof," Abbie said.

"Different rules of evidence," Danielle said.


.oOo.


A/N: The promise Abbie refers to is actually in an unfinished story of mine. So the conversation is inconsistent with canon – but hopefully one day will be consistent within my own fanon.